United States v. Lanesky

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0259p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-2228
v.
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MICHELLE LANESKY, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 03-80558—Arthur J. Tarnow, District Judge.
Argued: December 5, 2006
Decided and Filed: July 11, 2007
Before: BATCHELDER, GILMAN, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: Mark J. Kriger, LaRENE & KRIGER, Detroit, Michigan, for Appellant. Cynthia J.
Oberg, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Mark J. Kriger, N.C. Deday LaRene, LaRENE & KRIGER, Detroit, Michigan, for
Appellant. Cynthia J. Oberg, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellee.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. Michelle Lanesky pled guilty to one count of
conspiracy to commit bank fraud and launder the proceeds, in violation of 18 U.S.C. §§ 371, 1956
& 1957, and one count of bank fraud, in violation of 18 U.S.C. § 1344. The district court sentenced
her to two concurrent terms of 36 months’ incarceration, three years’ supervised release, the
mandatory $200 special assessment, and restitution in the amount of $1,131,207.28, for which the
court held Ms. Lanesky jointly and severally liable with her co-conspirators. In her timely appeal,
Ms. Lanesky assigns as error the district court’s failure to address fully or to resolve the objections
she raised with regard to the presentence report (PSR). Because we conclude that the district court
neither ruled on these objections nor determined that the matters would not affect or be considered
in the sentencing, and because the court did not calculate and consider a correct advisory guideline
sentence, we vacate the sentence and remand for resentencing.
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No. 05-2228 United States v. Lanesky Page 2
Ms. Lanesky was an employee of a mortgage company who participated in a property-
flipping scheme by obtaining fraudulent mortgages. The conspirators would buy a property, prepare
a false appraisal at a grossly inflated value, produce forged documents for a “straw” buyer, obtain
a mortgage on the property in the name of the straw buyer, and default on the mortgage, leaving the
bank with a significant loss and worthless collateral. Ms. Lanesky obtained mortgages on 17 such
properties and received $174,821 in laundered proceeds on $1,435,551 of bank disbursements. In
a superseding indictment, she was charged with one count of conspiracy to commit bank fraud and
launder the proceeds, in violation of 18 U.S.C. §§ 371, 1956 and 1957, and one count of bank fraud
in violation of 18 U.S.C. § 1344, as well as a number of other counts. Ms. Lanesky pled guilty to
the conspiracy and bank fraud counts, and the government dismissed the remaining charges.
The PSR established a guideline range of 57-71 months. Ms. Lanesky objected, based on
several disputed items in the PSR, and sought a guideline range of 21-27 months. She argued that
the guidelines for fraud, rather than money laundering, should be used to calculate her sentence; that
the value of the funds involved should be $174,821 — i.e., the value of the monies she received —
rather than total bank disbursements of $1,435,551; that she held only the title of “loan officer,”
rather than “mortgage broker”; and that she was entitled to a downward departure of three levels,
rather than two, because her acceptance of responsibility was timely.
At sentencing, the court did not resolve Ms. Lanesky’s objections expressly, nor did it
determine that the matters to which she objected were not material to and would not be considered
in calculating the sentence. Neither did the court make any factual findings on the record to produce
or support its own calculations of the guidelines. Although the court made clear that it was not
relying on the guidelines in determining her sentence, the court adopted the PSR in its sentencing
order. The court stated that it had reviewed the bank fraud and money laundering guideline ranges,
and was not using either, although after it had imposed the sentence, the court said that it was using
the money laundering guideline because “it’s clear that’s what was involved here.” In short,
although the court clearly did consider the § 3553(a) factors, it did not make the factual findings
necessary to calculate and consider the correct guidelines sentence, but rather imposed what it
viewed as an appropriate sentence in light of the § 3553(a) factors.
“At sentencing, the court . . . must — for any disputed portion of the presentence report or
other controverted matter — rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not consider the matter in
sentencing[.]” Fed. R. Crim. P. 32(i)(3)(B). In the present case, the district court did not rule on the
disputes at sentencing, but adopted the PSR in its sentencing order. This was not sufficient. See
United States v. Darwich, 337 F.3d 645, 667 (6th Cir. 2003) (explaining that “exclusive reliance on
the PSR when a matter is in dispute cannot be considered a ruling”).
“[A] sentence is unreasonable when the district judge fails to ‘consider’ the applicable
Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead
simply selects what the judge deems an appropriate sentence without such required consideration.”
United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). Here, the district court could not have
considered the applicable guideline range because it did not calculate a correct guideline range.
Instead, the court looked at the two proposed guideline ranges (one in the PSR and the other offered
by Ms. Lanesky), concluded that neither was correct, and, without making factual findings to
support any guideline range, selected what it viewed as an appropriate sentence in light of the
§ 3553(a) factors. More was required. Under this Circuit’s post-Booker protocol, the sentencing
court must: (1) correctly calculate the advisory guideline sentencing range, (2) consider the other
§ 3553(a) factors, and (3) impose a sentence that is sufficient but not greater than necessary to
comply with the purposes of § 3553(a)(2). See United States v. Cage, 458 F.3d 537, 540 (6th Cir.
2006).
No. 05-2228 United States v. Lanesky Page 3
Without the ‘mandatory’ provision, the [Sentencing Reform Act of 1984]
nonetheless requires judges to take account of the Guidelines together with other
sentencing goals. See 18 USC § 3553(a). The Act nonetheless requires judges to
consider the Guidelines ‘sentencing range established for . . . the applicable category
of offense committed by the applicable category of defendant,’ § 3553(a)(4)(A), the
pertinent Sentencing Commission policy statements, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1),
(3), (5)-(7). And the Act nonetheless requires judges to impose sentences that reflect
the seriousness of the offense, promote respect for the law, provide just punishment,
afford adequate deterrence, protect the public, and effectively provide the defendant
with needed educational or vocational training and medical care. § 3553(a)(2).
United States v. Booker, 543 U.S. 220, 259-260 (2005) (certain citation forms altered).
For these same reasons, we disagree with the government’s contention that the error was
harmless. Under Fed. R. Crim. P. 52(a), the government bears the burden of showing the error was
harmless, United States v. Vonn, 535 U.S. 55, 68 (2002), and in this case, there is no basis by which
the government can meet that burden. “To establish harmless error such that this Court lets stand
a defendant’s sentence in spite of errors at trial or sentencing below, the government must prove that
none of the defendant’s substantial rights has been affected by the error.” United States v. Johnson,
467 F.3d 559, 564 (6th Cir. 2006) (citations, quotation marks, and edits omitted). “To carry this
burden, the government must demonstrate to this Court with certainty that the error at sentencing
did not cause the defendant to receive a more severe sentence.” Id. (citations, quotation marks, and
edits omitted; emphasis added). And, without considering the sentence in light of a properly-
calculated guideline range, we cannot conclude with certainty that the defendant’s substantial rights
were unaffected. See id. at 565; see also United States v. Richardson, 437 F.3d 550, 554 (6th Cir.
2006). In a case such as this one, in which the sentencing court did not calculate an applicable
guideline range at all, we cannot be certain that this error did not cause the defendant to receive a
more severe sentence. See id. at 564. Therefore, we cannot excuse the district court’s error as
harmless.
Accordingly, we VACATE the sentence imposed by the district court and REMAND this
case for resentencing in accordance with this opinion.