United States v. Collins, Richard J. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
March 2, 2006
Before
Hon. DANIEL A. MANION Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 03-2987
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of
Plaintiff-Appellee, Illinois, Eastern Division
v.
No. 02 CR 831
RICHARD J. COLLINS,
Defendant-Appellant. Suzanne B. Conlon,
Judge.
ORDER
Richard Collins pleaded guilty to two counts of mail fraud and was sentenced
to 120 months in prison. He appealed his sentence, and we affirmed on March 15,
2004. See United States v. Collins, 361 F.3d 343 (7th Cir. 2004). Nonetheless, on
November 3, 2005, after resolving certain procedural matters, we ordered a limited
remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). In
response, the district court has informed us that, had the sentencing guidelines
been advisory, the sentence would have been the same.
The district court explained its limited-remand decision as follows:
In response to the limited remand order, this court has reviewed the
transcipt of the sentencing hearing, the presentence investigation
report, and the remand briefs submitted by the government and
defendant.
No. 03-2987 Page 2
It must be noted that due to plea bargaining, the court was precluded
from actually sentencing defendant within the applicable 121 to 151
month sentencing guideline range; the statutory maximum was 120
months. Because of the aggravated circumstances of defendant’s
conduct, his criminal history, the likelihood of recidivism and
protection of the public, a sentence at the high end of the advisory
guidelines would have been reasonable under 18 U.S.C. § 3553(a).
Defendant had three prior fraud convictions, and was on supervised
release when he engaged in the $11 million fraud that is the subject of
this case. In a prior case in 1990, he defrauded a mentally handicapped
person of $30,000. There were at least 400 victims of his fraud in this
case. Defendant and others concealed the fraud proceeds overseas; the
funds have not been recovered. The court found defendant’s
explanation of where the money went and his own financial status
both evasive and incredible. As the court concluded at the sentencing
hearing, defendant’s conduct was predatory and he is a danger to the
community.
After receiving the district court’s decision, we invited the parties to file
responses, and each side did so. The government asks us to affirm the sentence
while Collins wants us to vacate it.
Collins’s sole complaint is that the district court did not discuss the
substantial assistance he provided to the government. Collins maintains that his
assistance in two investigations merits a lower sentence. Prior to sentencing, the
government agreed, moving for a downward departure on these grounds under
U.S.S.G. § 5K1.1. The district court, however, denied that motion, finding that
Collins had lied about the location of the stolen funds that were still missing. See
Collins, 361 F.3d at 346. The district court echoed these same sentiments in its
limited-remand decision. Further, the district court’s limited-remand decision
convincingly shows that it considered the necessary factors under § 3553(a). See
United States v. Brock, 433 F.3d 931, 935-37 (7th Cir. 2006) (explaining United
States v. Newsom, 428 F.3d 685, 687-88 (2005); United States v. Cunningham, 429
F.3d 673, 675-79 (7th Cir. 2005); and United States v. Dean, 414 F.3d 725, 728-30
(7th Cir. 2005)). Moreover, the district court properly limited its review here to the
record at the time of sentencing by not considering post-sentencing events or
conduct during the Paladino remand. See United States v. Welch, 429 F.3d 702, 705
(7th Cir. 2005); see also United States v. Re, 419 F.3d 582, 584 (7th Cir. 2005). In
light of the record and the district court’s reasoned limited-remand explanation, the
lack of an explicit discussion about Collins’s assistance in the limited-remand
decision does not merit reversal. See Brock, 433 F.3d at 934-37 (“[I]t is enough that
the record confirms that the judge has given meaningful consideration to the section
No. 03-2987 Page 3
3553(a) factors.” (quoting United States v. Williams, 425 F.3d 478, 480 (7th Cir.
2005))); see also Welch, 429 F.3d at 705.
Turning briefly to reasonableness, see United States v. Alburay, 415 F.3d 782,
786 (7th Cir. 2005), Collins does not make any separate attempt to argue that his
sentence is unreasonable. We, moreover, do not find any grounds to consider his
sentence—at the statutory maximum and below the otherwise applicable guideline
range—to be unreasonable. Cf. id. at 786-87; United States v. Mykytiuk, 415 F.3d
606, 607-08 (7th Cir. 2005) (sentence within the guideline range presumptively
reasonable).
AFFIRMED.