United States v. Slavov, Dimitar ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006*
Decided February 1, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 04-4297
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Northern
Plaintiff-Appellee, District of Illinois, Eastern Division
v. No. 04 CR 21-1
DIMITAR SLAVOV, Joan B. Gottschall,
Defendant-Appellant. Judge.
ORDER
Dimitar Slavov paid waiters to swipe the credit cards of unwitting restaurant
patrons using “skimmers,” portable data storage devices that capture the
information from a card’s magnetic strip. He used the stolen credit card
information to create counterfeit credit cards on which he made charges totaling
$8,000. Slavov pleaded guilty to possessing more than 15 counterfeit credit cards,
see 18 U.S.C. § 1029(a)(3), and was sentenced to 15 months’ imprisonment and
three years’ supervised release, and ordered to pay $8,000 in restitution. Slavov
makes two arguments on appeal.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-4297 Page 2
First, Slavov argues that he should be resentenced on the ground that the
district court believed itself bound by the sentencing guidelines. See United States
v. Booker, 543 U.S. 220 (2005). Slavov has waived this argument. He agreed in his
plea agreement “[t]o have his sentence determined under the Sentencing
Guidelines.” At that time the guidelines were applied as mandatory. See 18 U.S.C.
§ 3553(b)(1). Moreover, though Booker was then pending before the Supreme Court,
Slavov nonetheless agreed “[t]o waive having sentencing facts alleged in the
indictment and found by the jury beyond a reasonable doubt” and “[t]o have the
Court determine his sentencing facts by a preponderance of the evidence.” Slavov is
bound by those concessions and has waived any right to benefit from the changes
brought by Booker. See United States v. Berheide, 421 F.3d 538, 542 (7th Cir. 2005);
United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir. 2005).
Slavov also contends that the district court erred in ordering him to pay the
$8,000 in restitution immediately instead of fixing a payment schedule as required
by the Mandatory Victims Restitution Act of 1996, Pub. L. No. 104-132, Title II,
Subtitle A, § 206, 110 Stat. 1214, 1234 (Apr. 24, 1996) (amending 18 U.S.C. § 3664).
See United States v. Day, 418 F.3d 746, 761 (7th Cir. 2005). Slavov forfeited this
argument by not raising it in the district court. See Fed. R. Crim. P. 52(b).
Nevertheless, the government concedes that there was error which is plain.
Accordingly, we VACATE the district court’s order regarding restitution and
REMAND with instructions to set a payment schedule in light of Slavov’s financial
circumstances.