United States v. Bianucci, William L. , 177 F. App'x 497 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 20, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2004
UNITED STATES OF AMERICA, Appeal from the United States
District Court for the Northern
Plaintiff-Appellee, District of Illinois, Eastern Division.
v. No. 02 CR 583
WILLIAM L. BIANUCCI, Charles R. Norgle, Sr.,
Judge.
Defendant-Appellant.
ORDER
William L. Bianucci appealed his sentence of forty-six months' imprisonment
for one count of bank fraud in violation of 18 U.S.C. § 1344, and thirteen counts of
making false statements to a bank in violation of 18 U.S.C. § 1014. He contended
that the district court violated the Supreme Court's dictate in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). We ordered a limited
remand to ask whether the district court would have imposed the same sentence
under an advisory regime. United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.
2005). The district court has now indicated that it would have ordered the same
sentence for Bianucci had it known that the Guidelines were advisory rather than
No. 04-2004 Page 2
mandatory. Both Bianucci and the government have now filed responses to the
district court's statement. Bianucci argues that the district court erred on remand
by failing to consider and apply all of the statutory factors listed in 18 U.S.C. §
3553(a). In particular, Bianucci complains that the district court failed to consider
the statutory factor prohibiting unwarranted sentencing disparities, failed to
discuss the fact that Bianucci did not personally profit from his offenses, and failed
to consider several compelling personal circumstances that he claims justified a
sentence below the Guideline range.
Bianucci's sentence was at the bottom of the applicable guidelines range and
is therefore presumptively reasonable. See United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). He has not provided any persuasive reason to rebut that
presumption. First, the district court properly set forth the factors it considered
relevant under section 3553(a), including the nature and circumstances of the
offense, the history and characteristics of the defendant, the need to promote
respect for the law, the need to provide just punishment for the offense, the need to
afford adequate deterrence to criminal conduct, and the need to protect the public
from further crimes of the defendant. Second, the court specifically noted that
Bianucci's offense caused a $3 million loss to the bank and that he engaged in more
than minimal planning in defrauding the bank. The court found the sentence was
necessary to promote respect for the law and the integrity of the banking system.
The court also found the sentence was adequate as a deterrent to others and was
appropriate in every other respect.
Although it is true that the court did not specifically address the issue of
unwarranted sentence disparity, 18 U.S.C. §3553(a)(6), there is no need to address
a frivolous argument. See United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)
(we will not increase sentencing courts' work by requiring discussion of frivolous
arguments). The sentencing disparity here was not unwarranted but was entirely
due to the fact that Bianucci's co-defendant pled guilty and cooperated with the
government and Bianucci put the government to its proof at a jury trial. United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (a sentencing difference is not
a forbidden disparity if it is justified by legitimate considerations, such as rewards
for cooperation). Nor was the court required specifically to discuss the apparent
lack of personal profit and Bianucci's qualities as a father and family man. The
court was clearly moved by the enormous loss to the victim, which was the same no
matter whose pocket was lined by the proceeds. We do not require the district court
to discuss the application of the statutory factors in checklist fashion. Dean, 414
F.3d at 729. "Judges need not rehearse on the record all of the considerations that
18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain
why (if the sentence lies outside it) this defendant deserves more or less." Dean,
414 F.3d at 729 (quoting United States v. George, 403 F.3d 470, 472-73 (7th Cir.),
No. 04-2004 Page 3
cert. denied, 126 S. Ct. 636 (2005)). Brevity does not matter so long as the record
makes clear that the judge gave the relevant factors "meaningful consideration."
United States v. Brock, 433 F.3d 931, 934 (7th Cir. 2006). It does. Therefore, the
judgment of the district court is AFFIRMED.