United States v. Vance, Arthur ( 2007 )


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  •                    NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with
    Fed R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted January 17, 2007
    Decided January 18, 2007
    Before
    Hon. WILLIAM J. BAUER , Circuit Judge
    Hon. KENNETH F. RIPPLE, Circuit Judge
    Hon. DIANE P. WOOD, Circuit Judge
    No. 06-2926
    UNITED STATES OF AMERICA,                    Appeal from the United States
    Plaintiff-Appellee,                      District Court for the Western
    District of Wisconsin
    v.
    No. 06-CR-017-S-01
    ARTHUR VANCE,
    Defendant-Appellant.                     John C. Shabaz,
    Judge.
    ORDER
    Arthur Vance pleaded guilty to making a false statement to a financial
    institution, see 18 U.S.C. § 1014, and was sentenced within the guidelines range to
    15 months’ imprisonment and three years’ supervised release. He was also ordered
    to pay $38,166.84 in restitution. Vance filed a notice of appeal, but his appointed
    counsel moves to withdraw because he cannot discern a nonfrivolous basis for the
    appeal. See Anders v. California, 
    386 U.S. 738
    , 744 (1967). We invited Vance to
    respond to counsel’s submission, see Cir. Rule 51(b), but he has not. We limit our
    review to the potential issues identified in counsel’s facially adequate supporting
    brief. See United States v. Schuh, 
    289 F.3d 968
    , 973-74 (7th Cir. 2002).
    No. 06-2926                                                                    Page 2
    Vance misrepresented his social security number and birth date to obtain a
    $7,000 loan from the Dane County Credit Union in September 1999. He previously
    had filed for bankruptcy, so the misrepresentations influenced the credit union’s
    lending decision. Vance also used the same fictitious social security number and
    birth date to obtain a car loan for $27,300 from State Capitol Credit Union in
    December 1998, a credit card with a $10,000 limit from State Capitol in January
    1999, and a credit card with a $10,000 limit from Dane County Credit Union in
    January 2000. Only the fraud involving the $7,000 loan is alleged in the count of
    conviction, but at sentencing the district court concluded that the other three
    transactions were relevant conduct because the modus operandi, i.e., using the
    same phony social security number and birth date to obtain credit, was identical,
    see U.S.S.G. § 1B1.3(a)(2), cmt. n.9(B).
    Vance does not want his guilty plea set aside, so counsel properly omits from
    his Anders submission any discussion of the voluntariness of the plea or the
    adequacy of the plea colloquy. See United States v. Knox, 
    287 F.3d 667
    , 671 (7th
    Cir. 2002). Counsel instead considers whether Vance could present a nonfrivolous
    argument that the district court miscalculated the amount of loss in applying the
    sentencing guidelines, or that the court imposed a prison term that is unreasonable.
    Counsel also evaluates a potential argument about the amount of restitution.
    As to the amount of loss, counsel first considers but rejects an argument that
    the district court erred by counting as relevant conduct the two transactions at
    State Capitol Credit Union. For offenses where grouping of multiple counts would
    be required—which is the case with violations of § 1014, see U.S.S.G.
    § 3D1.2—relevant conduct includes other transactions “that were part of the same
    course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
    § 1B1.3(a)(2) & cmt. nn.9(A), 9(B). Here, the district court concluded that the State
    Capitol transactions met this standard because Vance had employed the same
    modus operandi—he presented the same fictitious social security number and birth
    date on all four occasions—to obtain credit relatively close in time to obtaining the
    $7,000 loan at Dane County Credit Union. We agree with counsel that a challenge
    to the district court’s conclusion would be frivolous. See United States v. Ojomo, 
    332 F.3d 485
    , 490 (7th Cir. 2003) (upholding sentencing court’s finding that two
    additional student-loan applications completed using stolen identifying information
    were relevant conduct to four other student-loan applications underlying
    defendant’s conviction for mail fraud); United States v. Lane, 
    323 F.3d 568
    , 591 (7th
    Cir. 2003) (upholding sentencing court’s finding that identical misrepresentations
    made to second lender a year after conduct underlying § 1014 conviction was
    relevant conduct to that conviction); United States v. Leonard, 
    289 F.3d 984
    , 988-89
    (7th Cir. 2002) (upholding finding that fraudulent tax returns defendant prepared
    for others using forged or altered W-2 forms were relevant conduct to her conviction
    for making false returns on her own behalf).
    No. 06-2926                                                                      Page 3
    Counsel further concludes, in evaluating potential arguments about the loss
    amount, that it would be frivolous for Vance to contend that the district court erred
    by counting the face value of the car loan at State Capitol Credit Union instead of
    the actual loss on that loan. We agree. Although the actual loss resulting from
    Vance’s four fraudulent transactions was $38,166.84, the guidelines instruct that
    intended loss must be used if it is greater, see U.S.S.G. § 2B1.1(b)(1), cmt. n.3(A),
    and in this case the district court calculated an intended loss of $57,217.07. This
    figure includes the $27,300 face value of the car loan from State Capitol, which
    should have been reduced by the value of the car that secured the loan, see U.S.S.G.
    § 2B1.1, cmt. n.3(E)(ii); 
    Lane, 323 F.3d at 590
    (noting that intended loss should be
    fixed at amount of loan less value of collateral pledged to secure loan); United States
    v. Downs, 
    123 F.3d 637
    , 642-44 (7th Cir. 1997) (interpreting U.S.S.G. § 2F1.1 (now
    § 2B1.1) and concluding that value of collateral must be deducted from loan amount
    to determine loss). We could not determine the proper figure for intended loss
    based on the present record, yet it is readily apparent that the court’s error could
    not have affected Vance’s imprisonment range because the overstatement of the loss
    amount had no impact on his total offense level. The district court added six levels
    using the erroneously calculated intended loss, see U.S.S.G. § 2B1.1(b)(1)(D)
    (providing six-level increase for losses greater than $30,000 but less than $70,000),
    but the actual loss of $38,166.84 is undisputed, and if the court had used that
    figure, the same six-level increase would have resulted, see 
    id. Thus, the
    error was
    harmless. See United States v. Milquette, 
    214 F.3d 859
    , 864 n.2 (7th Cir. 2000)
    (explaining that error in calculating criminal history score was harmless where it
    did not affect criminal history category); United States v. Newman, 
    144 F.3d 531
    ,
    543-44 (7th Cir. 1998) (explaining that guidelines error is harmless if it does not
    affect sentence).
    Counsel next considers challenging the amount of restitution but concludes
    that any argument would be frivolous because the amount the district court ordered
    Vance to pay is correct. Vance promised in his plea agreement to pay restitution
    “for all losses relating to the offense of conviction and all losses covered by the same
    course of conduct or common scheme or plan as the offense of conviction.” The court
    properly found that the fraud committed against both lenders was part of the same
    course of conduct and calculated the restitution amount using the undisputed
    actual losses relating to those offenses, so Vance cannot present a nonfrivolous
    argument that the restitution amount was improper.
    Finally, counsel considers whether Vance could challenge the reasonableness
    of his prison sentence. We agree with counsel that such an argument would be
    frivolous. Vance’s prison term falls within the properly calculated guidelines range
    and is therefore presumed reasonable. See United States v. Gama-Gonzalez, 
    469 F.3d 1109
    , 1110 (7th Cir. 2006); United States v. Mykytiuk, 
    415 F.3d 606
    , 608 (7th
    Cir. 2005). Although the Supreme Court recently granted certiorari to consider
    No. 06-2926                                                                   Page 4
    whether it is consistent with United States v. Booker, 
    543 U.S. 220
    (2005) to accord
    a presumption of reasonableness to a sentence within the guidelines range, see
    United States v. Rita, No. 05-4674, 
    2006 WL 1144508
    (4th Cir. May 1, 2006), cert.
    granted, 75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754), we would find Vance’s
    sentence reasonable even without the presumption. Counsel has not identified any
    factors within 18 U.S.C. § 3553(a) that would compel a lower sentence.
    Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
    DISMISSED.