United States v. Alan Gold , 854 F.3d 945 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3678
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALAN H. GOLD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CR 330 — Elaine E. Bucklo, Judge.
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ARGUED APRIL 19, 2017 — DECIDED APRIL 27, 2017
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Before BAUER, POSNER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The defendant was indicted for
wire fraud, 18 U.S.C. § 1343, and pleaded guilty. The presen-
tence investigation report prepared by the Probation Office
stated that his guideline prison-sentence range was 70 to 87
months, a range based on the report’s estimation that the
loss to the victims of the fraud had slightly exceeded $1.8
million. The district judge sentenced the defendant to 75
months in prison, to three years of supervised release, and to
2 No. 16-3678
pay restitution to the victims of his fraud. On appeal the de-
fendant argues that the financial loss he caused was closer to
$1 million, which would have put him in a lower guidelines
range, see U.S.S.G. § 2B1.1(b)(1), and that the district judge
should have considered giving him a shorter prison sentence
than 75 months for the additional reason that shaving time
off the term would give him more time to earn the money he
would need in order to be able to make restitution to his vic-
tims.
Briefly by way of background: after having been dis-
missed from an investment firm the defendant had launched
a finance company in Wilmette, Illinois that he called Alan
Gold & Associates. The company provided investment ad-
vice to its clients and also purported to invest clients’ money,
but the defendant pocketed much of that money, some to
pay his gambling debts. He told his clients that their portfo-
lios were healthy—as proof he showed them false reports
and false stock certificates. But six elderly victims of the de-
fendant’s scheme—he had preyed mainly on the elderly—
testified at the sentencing hearing to their losses and losses
by their family members of money invested with Alan Gold
& Associates. The testimony of these witnesses was both
harrowing and uncontradicted.
The defendant objected that the Probation Office’s esti-
mate of the losses he had caused was too high, but like the
codefendant named Brown in United States v. Love, 680 F.3d
994, 999 (7th Cir. 2012)—who we pointed out had presented
“no evidence that the information contained and summa-
rized in the [government’s] charts is unreliable or errone-
ous” even though “Brown’s counsel had sufficient time and
opportunity to fully review all of the information used to
No. 16-3678 3
prepare the [government’s] summary charts and has not
identified any inaccuracies or errors”—Gold provided no
evidence, documentary or otherwise, to support his chal-
lenge to the government’s estimate of the victims’ losses. It’s
true that the government’s documentary evidence consisted
only of its own spreadsheet. But the spreadsheet was based
on financial data, for each of the fourteen victims, taken from
the defendant’s own bank-account records. The calculation
of losses was a simple one (money in, money out), and the
defendant pointed to no errors in the government’s estimate.
Four of the six victim witnesses testified at the sentencing
hearing to the amounts lost by them and their families,
amounting to more than $1.35 million. Gold said he believed
that “the loss is less than as stated by the government,” but
he didn’t say how much less, though in written objections to
the government’s calculations he said the loss amount was
around $1 million. Yet he failed to present any evidence that
might have supported a lower estimate of his victims’ losses
than the government’s or the victims’ estimates. As we said
in United States v. Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994),
“a defendant cannot [be permitted to] show that a PSR
[presentence investigation report] is inaccurate by simply
denying the PSR’s truth. Instead, beyond such a ‘bare deni-
al,’ he must produce some evidence that ‘calls the reliability
or correctness of the alleged facts into question.’”
The defendant’s principal argument was and is that his
prison sentence should have been substantially shorter than
75 months in order to give him time after his release to find
employment that would enable him to make good the resti-
tution he was ordered to pay to his victims. The district
judge gave no weight to this argument, and was right not to
4 No. 16-3678
do so. Even if Gold were given no prison sentence, he would
be unable to provide substantial restitution to the victims of
his fraud, given that he was already bordering on elderly (he
is 60 years old), had never graduated from college, lacked
full-time employment (earning only $250 a month—walking
neighbors’ dogs), and had a negative net worth. No way,
given his conviction, that, even if not imprisoned, he’d able
to repay his victims the $1.8 million that he owes them, or
even a significant fraction of that amount.
As there is no merit to the appeal, the judgment of the
district court is affirmed.