United States v. Tautan, Adrian , 185 F. App'x 524 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 19, 2006*
Decided June 20, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 05-2271 & 05-2272
Appeals from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of
Plaintiff-Appellee, Illinois, Eastern Division
v. Nos. 03 CR 472-1 & 03 CR 472-2
ADRIAN TAUTAN, a.k.a. ATTILA Ronald A. Guzmán,
BIRO, and LOUIS APETROAIE, Judge.
Defendants-Appellants.
ORDER
Adrian Tautan and Louis Apetroaie used counterfeit bank cards to steal over
$110,000 from automated teller machines in Chicago and Milwaukee. They made
the cards by hiding “skimmers”—portable data storage devices—and video cameras
in ATMs. The skimmer captured a customer’s account information when he swiped
his card, and the camera recorded his keystrokes when he entered his personal
identification number. Tautan and Apetroaie copied the data from the skimmers
onto blank cards, and used them with the recorded PINs to withdraw cash. Police
confiscated 28 counterfeit cards when they arrested Tautan and Apetroaie, and
*
After examining the briefs and the records, we have concluded that oral
argument is unnecessary. Thus, these appeals are submitted on the briefs and the
records. See Fed. R. App. P. 34(a)(2).
Nos. 05-2271 & 05-2272 Page 2
found another 193 encoded cards in their apartment. Tautan and Apetroaie
pleaded guilty to conspiring to possess and use unauthorized access devices. See 18
U.S.C. § 1029(b)(2). The district judge sentenced Tautan to 40 months’
imprisonment and Apetroaie to 30, and ordered them jointly to pay $111,672 in
restitution. Tautan appeals his sentence, arguing that it is unreasonably long in
light of the 24- to 30-month range under the advisory sentencing guidelines. In
addition, both Tautan and Apetroaie argue that the court erred by not fixing a
payment schedule for restitution. We affirm Tautan’s sentence, but remand both
cases for the district court to amend the judgments by adding a payment schedule.
Tautan, a Romanian citizen, told the agents who arrested him that his name
is Attila Biro and used that alias in court proceedings for more than a year. He
answered to it at his initial appearance, preliminary hearing, and arraignment
before the magistrate judge. And he continued to use the alias in seeking to
suppress his post-arrest statement and the evidence found in his car and at his
apartment. Not until he first appeared for a change-of-plea hearing on June 8,
2004, did he acknowledge his true name.
He also misrepresented his command of the English language. Tautan gave
his detailed post-arrest statement in English, and the magistrate judge arraigned
him without an interpreter because Tautan said he had no difficulty understanding
English. He nonetheless moved to suppress the post-arrest statement on the
ground that he never understood the English-language Miranda warnings and so
his waiver had been involuntary. After the district judge denied his motion, Tautan
professed that he could not understand the proceedings at all and required a
Romanian-language interpreter, which the court thereafter provided. Tautan
declined the services of an interpreter, however, when he later met with the
probation officer.
In the presentence report, the probation officer calculated the guidelines
range as follows: To a base offense level of 6, see U.S.S.G. § 2B.1.1(a) (2003), he
added ten levels because the intended loss exceeded $120,000, see id.
§ 2B1.1(b)(1)(F), two levels because the scheme involved “sophisticated means,” see
id. § 2B.1.1(b)(8)(C), and two levels for possession of device-making equipment and
the production of unauthorized access devices, see id. § 2B.1.1(b)(9)(A), (b)(9)(B).
Although Tautan lied about his identity for more than a year after his arrest, the
probation officer nevertheless declined to recommend an increase for obstruction of
justice, see U.S.S.G. § 3C1.1, but did recommend a three-level decrease for
acceptance of responsibility, see id. § 3E1.1(a), (b). The probation officer thus
arrived at a total offense level of 17. That combined with Tautan’s criminal history
category of I—which might have gone higher except that the probation officer ran
out of time to verify Interpol’s reports of two Romanian convictions for aggravated
theft—yielded an advisory range of 24 to 30 months.
Nos. 05-2271 & 05-2272 Page 3
At sentencing the government agreed with the probation officer’s calculations
and the resulting advisory guidelines range, and disclaimed seeking a sentence
above it. Tautan’s counsel requested a low-end sentence because Tautan faces the
additional punishment of removal from the United States upon his release from
prison. Tautan used his allocution (once again through an interpreter) to argue at
length that his “defense wasn’t a fair one” and to challenge the probation officer’s
guidelines calculations and recommended restitution amount. And he argued for a
below-range sentence on the theory that, as an illegal alien, he will be denied
“certain rights” enjoyed by United States citizens.
The district court accepted the calculations in the presentence
report—acknowledging that the advisory range was 24 to 30 months. In varying
Tautan’s sentence upward, the judge discussed the nature and circumstances of his
offense, see 18 U.S.C. § 3553(a)(1), noting that it was “rather massive” as evidenced
by the number of fraudulent ATM cards discovered. The judge also weighed
Tautan’s “characteristics,” see id., and pronounced him both willing to break the law
whenever it suited him as well as “deceitful and duplicitous,” first with his victims
and then with the court when he lied about his name and supposed inability to
understand English. In its written statement of reasons the court iterated that it
was moved by Tautan’s dishonesty with the court:
[Tautan’s] conduct both before and after arrest reflects a commitment
and dedication to criminal conduct. Further defendant’s attitude is
one of defiance and anger at having been apprehended and prosecuted.
His conduct and demeanor before the court reflects a lack of respect for
the law and his representations to the court have been dishonest.
Tautan argues that his sentence is not justified as an exercise of discretion
based on the § 3553(a) factors. See United States v. Booker, 543 U.S. 220 (2005).
According to Tautan, the district court did not give reasons in support of its chosen
sentence, but “simply expressed disgust” with his crime.
Tautan’s sentence is not unreasonably high. It is almost certainly too low.
He should have received obstruction points for using a false name in the
proceedings before the magistrate and district judges. See U.S.S.G. § 3C1.1, cmt.
n.4(b), 4(f) (obstruction adjustment applies for perjury or giving materially false
information to a judge or magistrate); United States v. Howard, 341 F.3d 620, 623
(7th Cir. 2003) (stating that defendant who lied to court about his identity was “in
the most basic sense . . . not accepting responsibility for his crime”); United States v.
Tran, 285 F.3d 934, 940 & n.3 (10th Cir. 2002) (upholding award of obstruction
points where defendant, after giving false name to arresting officers, continued the
ruse in proceedings before magistrate and district judges). The magistrate judge
neglected to place Tautan under oath at his initial appearance, and the record does
Nos. 05-2271 & 05-2272 Page 4
not include the transcripts from the preliminary hearing or arraignment, so we
cannot tell whether he committed perjury. But the upward adjustment
nevertheless applies because the lie was material. See U.S.S.G. § 3C1.1 cmt. n.6 (a
lie is “material” if it “would tend to influence or affect the issue under
determination”); United States v. Garcia, 69 F.3d 810, 816-17 & n. 9 (7th Cir. 1995)
(holding that a lie to a magistrate or judge about one’s identity is material and
collecting cases). Here the lie was not just material, but worked to Tautan’s benefit.
It kept the government from discovering his criminal history until after he entered
the plea agreement. And, if he’d given his true name a year earlier, the prosecutor
might have been able to resolve the Romanian convictions reported by Interpol and
would have also been aware that he is an illegal alien. Since the obstruction
adjustment applies, and nothing was exceptional about Tautan’s acceptance of
responsibility, the acceptance reduction should not have been given. See U.S.S.G.
§ 3E1.1 cmt. n.4 (obstruction under § 3C1.1—except in extraordinary
case—establishes that defendant has not accepted responsibility); United States v.
Keeter, 130 F.3d 297, 299 (7th Cir. 1997). With those adjustments, Tautan’s total
offense level would have been 22, which yields a guidelines range of 41 to 51
months. Tautan’s sentence is below this properly calculated guidelines minimum,
so he cannot plausibly argue that the judge’s reasons for imposing a 40-month term
did not justify the actual sentence.
Even apart from these adjustments, however, the court’s reasons justified
Tautan’s sentence. In choosing the sentence it imposed, the court considered the
“massive” and “sophisticated” nature of the offense. See 18 U.S.C. § 3553(a)(1),
(2)(A). The court was particularly influenced by Tautan’s “attitude of defiance and
anger,” “lack of respect for the law,” and lies to the court, id. § 3553(a)(1), as well as
his “dedicat[ion] to criminal conduct,” id. § 3553(2)(B), (C). In an attempt to evade
punishment, Tautan lied during every proceeding from the time he was arrested
until his sentence was imposed. The court’s reasons were more than adequate to
support the sentence. See United States v. Baker, 445 F.3d 987, 992 (7th Cir. 2005);
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005).
Next, Tautan and Apetroaie both contend that the district court erred in
ordering them to pay the $111,672 in restitution immediately without reason to
believe they have the means to do so. Absent such findings, they argue, the court
should have fixed payment schedules 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). They both 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. In light of the probation officer’s
conclusion, adopted by the district court, that neither Tautan nor Apetroaie are
capable of making payment immediately, we remand for entry of amended
Nos. 05-2271 & 05-2272 Page 5
judgments after the district court has set payment schedules consistent with their
financial circumstances.
Tautan’s sentence is AFFIRMED, but the judgments are VACATED as to
both defendants, and their cases are REMANDED for entry of amended judgments
consistent with this order.