United States v. Ilges, Warren J. , 207 F. App'x 678 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 22, 2006
Decided December 1, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1393
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 04-CR-30106
WARREN J. ILGES,
Defendant-Appellant. David R. Herndon,
Judge.
ORDER
After a jury found Warren Ilges guilty of defrauding the Social Security
Administration for concealing additional income while receiving benefits, the
district court sentenced him to 33 months’ imprisonment, the lowest end of the
sentencing guidelines range. Ilges does not challenge the district court’s calculation
of the applicable guideline range, but he argues that the sentence imposed was
unreasonably high. First, he argues that this court should overturn its
presumptive-reasonableness standard for sentences imposed within guideline
ranges and instead treat a guidelines calculation simply as one of the many
sentencing factors set forth in 18 U.S.C. § 3553(a). Secondly, he argues that even if
this court does not overturn its standard of presumptive reasonableness, the judge’s
decision not to mitigate his sentence was unreasonable. We affirm the sentence
imposed by the district court.
No. 06-1393 Page 2
Ilges, currently age 51, applied for social security disability benefits after a
work-related back injury ended his career as a carpenter. He began receiving
benefits in 1988. While receiving benefits, he worked part-time first with the
Clinton County sheriff’s office from 1996 to the time of trial and also briefly as a
prisoner transporter for the U.S. Marshall’s Service in 2003. From 1996 onward,
Ilges continued to report to the SSA that he could not work and was not working.
According to the Social Security Administration, this resulted in an overpayment of
$81,553.
A jury found Ilges guilty of mail fraud in violation of 18 U.S.C. § 1341,
concealing information from the SSA (two counts) in violation of 42 U.S.C. §
408(a)(4), and making false statements in violation of 18 U.S.C. § 1001(a)(2).
Ilges suffers from poor health; he lives in significant and often constant pain
from his back injury. In the last few years, he suffered a stroke and a heart attack
requiring cardiac cathederization and stenting. Additionally, he suffers from lung
disease, digestive problems, diabetes mellitus, and high cholesterol. Based on these
difficulties, Ilges’s family doctor testified that Ilges requires ongoing care and is
unlikely to live beyond 65. The doctor concluded that confinement would increase
Ilges’s stress level, cause depression, and lead to a higher risk of death.
On cross-examination, however, the doctor admitted a lack of familiarity with
prison conditions in his determination of their effect on Ilges’s health. Additionally,
he admitted that Ilges’s stroke was an isolated incident with no permanent damage,
and that it may have been caused by Ilges’s failure to take his medication. Since
his heart attack, Ilges’s condition has been stable, and his diabetes is under control.
The doctor acknowledged that Ilges has the ability to improve his health through
diet and exercise.
Ilges’s only criminal history is a minor hunting infraction for baiting turkeys.
He volunteers teaching hunter safety and also aided an effort to establish a hunting
venue for disabled hunters. He provides emotional support and assistance to family
members, including his daughter and grandson, who suffers from cerebral palsy.
Members of the law enforcement community in which he worked testified and wrote
letters to the court on his behalf. Ilges reported the income from his jobs to the IRS,
and he did not conceal his disability status from those with whom he worked.
During the years in question, his wife left him, and he raised their three children by
himself.
The district court examined these factors but found they did not warrant a
sentence below the applicable guideline range. The court sentenced Ilges to 33
No. 06-1393 Page 3
months in prison, the bottom of the guidelines range, and ordered restitution to
SSA totaling $81,553.
Ilges challenges this circuit’s precedent that a sentence imposed within the
federal sentencing guidelines is entitled to a presumption of reasonableness. See
United States v. Mykytiuk, 414 F.3d 606, 608 (7th Cir. 2005); United States v.
Wallace, 458 F.3d 606, 611 (7th Cir. 2006) (acknowledging the division among the
circuits on this point, but stating that this circuit’s position has been “firm ever since
Mykytiuk was decided”); United States v. Brock, 433 F.3d 931, 938 (7th Cir. 2006);
United States v. Jordan, 435 F.3d 693, 696 (7th Cir. 2006). Ilges argues that the
presumption gives the guidelines “more weight” than the other sentencing factors of
18 U.S.C. § 3553(a), thus making the guidelines more than just advisory. See United
States v. Booker, 543 U.S. 220 (2005).
The Supreme Court has recently granted a writ of certiorari to consider the
same question posed by Ilges. 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). The resolution of that question, however, does not affect our
conclusion in this case, because the district court’s sentence was reasonable even if
not afforded any presumption.
There are two parts to this reasonableness inquiry: was the district court’s
choice adequately reasoned in light of the § 3553(a) factors, and can the sentence
ultimately be deemed a reasonable one. Wallace, 458 F.3d at 609. This court’s role
is not to choose between possible sentences but to review the reasonableness of the
sentence imposed. United States v. Lopez, 430 F.3d 854, 857 (7th Cir. 2005). To do
so, we ask whether the district court considered the § 3553(a) factors and articulated
reasons for entering the particular sentence. Brock, 433 F.3d at 935-36, 938;
Jordan, 435 F.3d at 696; United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045-46
(7th Cir. 2005); United States v. Cunningham, 429 F.3d 673, 675, 679 (7th Cir. 2005).
A district court need not explain all the § 3553(a) factors; it is enough to calculate
the guidelines range and explain any deviation or the lack thereof. United States v.
George, 403 F.3d 470, 472-73 (7th Cir. 2005); Brock, 433 F.3d at 935-36, 938; Jordan,
435 F.3d at 696.
Ilges argues that his sentence is unreasonable because it runs afoul of the
§ 3553(a) directive to impose a sentence that is “sufficient, but not greater than
necessary.” He argues that he should receive a lower sentence because of his lack of
criminal history, his respect for the law, his volunteer work and community service,
his important family role as a father and grandfather, his short life expectancy, and
his health complications that could further shorten his life if he is imprisoned. He
argues that imprisonment is not necessary to deter a man of his age. Additionally,
he emphasizes that departure is proper because he reported his part-time income to
No. 06-1393 Page 4
the Internal Revenue Service, did not conceal his receipt of disability from those he
worked with, and used the money he received from the SSA to support his family.
The district court properly articulated its consideration of these arguments in
light of the § 3553(a) factors. The judge recognized that Ilges was generally an
upstanding citizen and noted the evidence in support of his character, but he also
weighed these considerations against Ilges’s guilt of defrauding the government.
The judge explained that Ilges lacked respect for the law in this area. The judge
recognized that Ilges’s crimes were serious offenses and added that Ilges’s
responsibility was heightened because of his involvement in law enforcement. The
judge maintained that a message needed to be sent to Ilges and to others that it was
not okay to “fudge” in this area; there is only so much money available that must be
reserved for those who truly need it. The judge expressed concern about recidivism
by Ilges. As to Ilges’s medical condition, the judge determined that it was not a
factor for sentencing because Ilges would be able to obtain as much necessary care
within the prison system as he could when at home. The judge also dismissed as
irrelevant Ilges’s argument that he has an important role as a father and
grandfather, as those family relationships were the same as for many other
defendants.
Moreover, Ilges’s arguments regarding age, physical condition, family ties and
responsibilities, and charitable or public service are generally irrelevant under the
guidelines. U.S. Sentencing Guidelines Manual §§ 5H1.1, 5H1.4, 5H1.6, 5H1.11
(2005). Ilges has not shown why these factors affect him to a degree different than
others. See United States v. Bocarino, 437 F.3d 634, 638 (7th Cir. 2006); Wallace,
458 F.3d at 611-12; United States v. Miller, 450 F.3d 270, 276 (7th Cir. 2006).
The district court’s sentence was both adequately reasoned in light of
§ 3553(a) and ultimately reasonable. The decision of the district court is
AFFIRMED.