United States v. Zimmer, Gregg S.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2006
Decided October 6, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-4294
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 03-CR-119
GREGG STEVEN ZIMMER,
Defendant-Appellant. William C. Griesbach,
Judge
ORDER
In this post-Booker case, Gregg Zimmer was sentenced to a term of 48
months after he pleaded guilty to two counts of bank fraud. On appeal he
challenges his sentence, arguing that the district court improperly determined the
losses attributable to his criminal conduct and thus miscalculated his advisory
guideline range. Because any error in the district court’s loss assessment is
harmless and Zimmer’s sentence is clearly reasonable, we affirm.
The details of how Zimmer pulled off his criminal shenanigans are not
particularly important for our present purposes so we recount just the basics of his
scheme. In 1998, Zimmer obtained a Mastercard account from Firstar Bank with a
No. 05-4294 Page 2
$20,000 line of credit that he could access by check, credit card, or cash advance.1
He made purchases and payments on the account for approximately one year. In
1999, however, Zimmer began making “payments” on the account balance using
checks drawn on accounts that lacked sufficient funds. He would make these
“payments” by depositing the bad checks at automatic teller machines not owned by
the drawee bank, which would cause the Firstar account to reflect a credit for the
payment the following business day and allow him several days to make purchases
and take cash advances against the credit before the drawee bank dishonored the
check. Firstar would then debit Zimmer’s account for the amount of the dishonored
check and charge him a returned check fee. Zimmer maintained an artificial credit
balance on his Firstar account, while simultaneously increasing his original line of
credit, by using this fraudulent payment method until February 2000. By August
2000 the account reflected a balance of $158,682.39, including penalties and
interest.
In June 2003, a grand jury charged Zimmer with three counts of bank fraud.
See 18 U.S.C. § 1344(1), (2). Zimmer pleaded guilty to two counts. But he disagreed
with the government over the amount of loss attributable to him.
Zimmer’s original presentence investigation report revealed losses of
$145,484.09. The probation officer arrived at the loss figure by taking the final
balance on the account of $158,682.39 and subtracting accrued interest of
$13,198.30. This amount corresponded to the amount of loss reported to the
probation officer by Firstar. Based upon this calculation, the probation officer
recommended a seven-level increase to Zimmer’s base offense level because the total
was between $120,000 and $200,000. See U.S.S.G. § 2F1.1(b)(1)(H) (1998). The
probation officer also recommended a two-level increase because Zimmer’s fraud
scheme involved more than minimal planning, see id. § 2F1.1(b)(2), and a two-level
reduction for acceptance of responsibility, id. § 3E1.1(a), resulting in a total offense
level of 13 and a guidelines imprisonment range of 12 to 18 months.
At his initial sentencing hearing in October 2004, Zimmer objected to the
probation officer’s loss calculation, arguing that losses from his fraudulent conduct
totaled only $85,000. In support, he presented testimony from John G. Peters, a
certified public accountant, who had performed a “forensic accounting” of Zimmer’s
Firstar account statements. Peters prepared a three-page spreadsheet
summarizing the transactions on Zimmer’s account from February 16, 1999, to
September 18, 2000, and testified that he had identified three categories of charges
1
Although both Zimmer and the government state in their briefs that
Zimmer’s original line of credit was $25,000, Zimmer’s credit card statements show
an initial credit line of $20,000.
No. 05-4294 Page 3
that he believed should be excluded from the probation officer’s loss calculation.
The first category, Peters explained, included two debits to Zimmer’s account for
$12,000 and $20,000 that Peters believed occurred when Firstar received a
dishonored check from the drawee bank, debited the amount of the returned check
to Zimmer’s account, redeposited the check without making a corresponding credit
to the account, and then debited the account again when the drawee dishonored the
same check a second time. Peters explained that he concluded that the two debits
were erroneous by looking at Zimmer’s Firstar statements and “crossmatching” the
payments and debits on those statements with bank statements showing checks
presented for payment on two accounts from which Zimmer admitted issuing NSF
checks. When he “had too many bounces for one check being issued,” he identified
as erroneous any resulting debit of an identical amount on the credit card
statements. Peters admitted, however, that he had found it “difficult” to determine
which dishonored checks had been erroneously debited because numerous payments
and returned-check debits of identical amounts appeared on the statements, and he
was unable to decipher some of the transaction descriptions accompanying the
debits. He also said nothing about whether he shared his conclusions with Firstar
or asked Firstar’s assistance in clarifying the two suspect charges. The second
category, Peters said, consisted of interest and penalties totaling approximately
$14,000 that “from an accounting perspective” should not have been included in the
loss calculation. And the third category, according to Peters, was the original
extension of credit, which he insisted was not a loss attributable to Zimmer’s fraud
but instead was merely a civil “bad debt.” The government submitted copies of
Zimmer’s credit-card statments for April 1999 to August 2000 and attempted to
impeach Peters’s testimony but otherwise made little attempt to establish actual or
intended losses. The court then adjourned the hearing, leaving the issue of losses
unresolved pending the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005).
Although Booker was decided in January 2005, Zimmer’s sentencing hearing
did not resume until October 2005. In the interim, Zimmer stole approximately
$100,000 from his wife and in-laws, abandoned his family, absconded from
authorities for seven months, and went on a gambling spree. Due to Zimmer’s
conduct following the 2004 hearing, the probation officer prepared a revised
presentence investigation report. The revised report started with the calculations
of the original report but added a two-level increase for obstruction of justice, see
U.S.S.G. § 3C1.1, and eliminated the two-level reduction for acceptance of
responsibility. These adjustments resulted in a total offense level of 17 and an
advisory guideline range of 24 to 30 months.
When the sentencing hearing resumed, the district court concluded that
Zimmer was responsible for losses equaling the balance on his Firstar account as of
August 2000—$158,682.39. Relying on our decision in United States v. Allender, 62
No. 05-4294 Page 4
F.3d 909 (7th Cir. 1995), the district court reasoned that interest should be included
in the loss calculation because, although the guidelines instruct that interest
generally should be excluded from losses, in this case interest was part of the
contract between Zimmer and Firstar and was determined with specificity. The
court also reasoned that the original extension of credit should be included in the
loss calculation. The district court did not, however, address Zimmer’s argument
that the loss calculation should be reduced by $32,000 to account for the dishonored
checks that purportedly were debited to the account twice. The district court then
adopted the probation officer’s guidelines calculations; considered the factors set
forth in 18 U.S.C. § 3553(a), with particular attention to Zimmer’s conduct
subsequent to the October 2004 hearing; and imposed a sentence of 48 months, 18
months beyond the top of the advisory range.
On appeal Zimmer challenges only the district court’s loss calculation. He
contends that it was error for the court to include in its computation (1) accrued
interest, (2) the original extension of credit, and (3) erroneous debits arising from
double-debiting of dishonored checks. Had these amounts been excluded from the
calculation, Zimmer claims, “the total loss amount would have fallen below
$70,000,” resulting in a two-level decrease to his total offense level, see U.S.S.G.
§ 2F1.1(b)(1)(F) (1998), and an advisory guideline range of 18 to 24 months.
The district court’s loss determination is a factual finding that we will not
disturb unless it is clearly erroneous. United States v. Berheide, 421 F.3d 538, 540
(7th Cir. 2005); United States v. Schaefer, 384 F.3d 326, 331 (7th Cir. 2004). What
constitutes a “loss,” however, is a legal question that we review de novo. Berheide,
421 F.3d at 540.
Zimmer first contests the district court’s inclusion of approximately $14,000
of accrued interest in the loss calculation. He abandons his position in the district
court that interest should not have been included “from an accounting standpoint,”
and now argues that interest should not have been included because “the victim did
not claim a loss that included the interest.” This shift in position means that review
of the interest question is only for plain error. United States v. Burke, 125 F.3d 401,
405 (7th Cir. 1997). But the standard of review does not change the outcome
because the district court committed no error at all.
The district court was not bound by the loss amount Firstar reported to the
probation officer. For the purpose of determining relevant conduct under U.S.S.G.
§ 2F1.1, the loss calculation starts with “the value of the money, property, or service
unlawfully taken.” U.S.S.G. § 2F1.1 cmt. n.8 (1998). Section 2F1.1 losses are
broader than those amounts recoverable by the victim as restitution, see United
States v. Newsome, 322 F.3d 328, 338-39 (4th Cir. 2003); United States v. Laney, 189
F.3d 954, 965 (9th Cir. 1999), and may include interest the defendant contracted to
No. 05-4294 Page 5
pay on loans, Allender, 62 F.3d at 917; see United States v. Goodchild, 25 F.3d 55,
66 (1st Cir. 1994); United States v. Henderson, 19 F.3d 917, 928-29 (5th Cir. 1994);
United States v. Jones, 933 F.2d 353, 354-55 (6th Cir. 1991). Zimmer does not
dispute that Allender governs this case. Instead he insists that the district court
could not consider the accrued interest in its loss calculation because Firstar did not
report it as a “loss.” The sentencing guidelines, however, do not limit the district
court’s factual inquiry to only that conduct reported by the victim. See U.S.S.G.
§ 1B1.3(a)(3) (1998) (instructing that relevant conduct shall be determined by
considering “all harm that resulted from” defendant’s criminal conduct (emphasis
added)). And in this case the government presented evidence from which the
district court could conclude that Zimmer caused direct harm to Firstar of
$145,484.09 as well as consequential harm of $13,198.30 in lost interest that he was
bound by contract to pay Firstar. Thus the district court properly included the
accrued interest in its loss calculation.
Zimmer next contests the district court’s inclusion of the original line of
credit in its loss assessment. He points to the district court’s conclusion that his use
of the credit card reflected “an intent not to pay any of it back at any time” and
argues that he obtained the original extension of credit by legitimate means, made
wholly legitimate payments toward the balance for one year before his fraudulent
conduct began, and continued to make legitimate payments during the time he also
made fraudulent payments.
The district court’s refusal to reduce the loss calculation by an amount equal
to the original extension of credit was not error. “Loss” for purpose of § 2F1.1(b) is
the amount of loss stemming from the defendant’s fraudulent conduct. See
Berheide, 421 F.3d at 540; United States v. Munoz, 430 F.3d 1357, 1369 (11th Cir.
2005). Although isolated cases suggest that an original loan amount should not be
included in a § 2F1.1 loss calculation where the loan was legitimately obtained but
subsequently maintained by fraud, see, e.g., Berheide, 421 F.3d at 540; United
States v. Wilson, 980 F.2d 259, 262 (4th Cir. 1992), the amounts included in the
district court’s loss calculation resulted from Zimmer’s fraudulent conduct. Zimmer
presented his first bad check in the amount of $10,000 to Firstar in April 1999 at a
time when his original credit line was nearly exhausted. He then made additional,
undisputed “payments” to Firstar using bad checks totaling $137,000. Although
Zimmer also made legitimate payments to Firstar, he made fraudulent payments
totaling at least $147,000 following exhaustion of his original credit line. This
amount corresponds with the district court’s loss assessment before interest of
$145,484.09. Accordingly, the district court’s loss calculation should not be reduced
by the amount of Zimmer’s original credit line.
Zimmer also challenges the district court’s inclusion of what he says are
erroneous debits of $12,000 and $20,000. He argues that remand is necessary
No. 05-4294 Page 6
because the district court failed to make an explicit finding concerning the contested
charges. See Fed. R. Crim. P. 32.
Zimmer is correct in part. Federal Rule of Criminal Procedure 32 requires
that the district 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); see
United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005). And the district
court never addressed Zimmer’s objection at sentencing to inclusion in the loss
computation of amounts he claimed were erroneously debited to his account. This
was error. See Cunningham, 429 F.3d at 679 (“A judge who fails to mention a
ground of recognized legal merit (provided it has a factual basis) is likely to have
committed an error or oversight.”). But failure to comply with Rule 32 is harmless
error when resolution of the contested issue would not affect a defendant’s sentence.
Id. at 679; United States v. Darwich, 337 F.3d 645, 666 (6th Cir. 2003).
The amounts Zimmer says were erroneously debited to his account do not
affect his guidelines range, so we have no reason to conclude that the district court’s
failure to address his objection would have affected his ultimate sentence. Even if
we assume that the district court would have found in Zimmer’s favor and deducted
$32,000 from its loss calculation of $158,682.39, losses for purposes of U.S.S.G.
§ 2F1.1 would still total $126,682.39. This figure falls between $120,000 and
$200,000, so Zimmer’s imprisonment range under the 1998 guidelines would remain
unchanged.
In addition, if remanded, Zimmer would be resentenced under the current
guidelines, not the 1998 guidelines. We recently held in United States v. DeMaree,
459 F.3d 791, 795 (7th Cir. 2006), that the Supreme Court’s decision in Booker
eliminated any ex post facto concern previously thought to arise from the
application of guidelines that became more onerous after the offense was
committed. Thus a defendant’s guidelines range will always be calculated using the
guidelines in effect at the time of sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii).
Under the 2005 guidelines, Zimmer’s total offense level would be 19—base offense
level of seven, see U.S.S.G. § 2B1.1(a)(1) (2005), increased by ten levels for losses in
excess of $120,000 but not more than $200,000, see id. § 2B1.1(b)(1)(F), (G), plus a
two-level adjustment for obstruction of justice, see id. § 3C1.1—resulting in a
guidelines imprisonment range of 30 to 37 months, a higher range than that
calculated by the district court at Zimmer’s sentencing.
Finally, we cannot say that Zimmer’s 48-month sentence is unreasonable. In
determining the sentence, the district court considered the factors set forth in
§ 3553(a), including the advisory guidelines range and Zimmer’s history,
No. 05-4294 Page 7
characteristics, and need to deter further criminal conduct. See 18 U.S.C. § 3553(a);
United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006). The court also
explained that it found Zimmer’s conduct following his initial sentencing hearing
particularly influential to its decision to impose an above-guidelines sentence.
Because these are appropriate considerations at sentencing, see Walker, 447 F.3d at
1007, and the district court adequately explained its decision to impose a sentence
18 months above the advisory guideline range, we AFFIRM Zimmer’s sentence.