United States v. Anthony Banas

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1499
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY B ANAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 976-2—Ruben Castillo, Judge.
A RGUED JANUARY 25, 2013—D ECIDED M ARCH 14, 2013
Before E ASTERBROOK, Chief Judge, and B AUER and
K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Anthony Banas committed extra-
ordinary crimes—he bilked investors out of more than
$70,000,000 and lined his own pockets with the health
care savings of people who trusted him. Anthony Banas
also showed extraordinary contrition—he admitted his
guilt, accepted responsibility for his actions, and he
has worked hard to secure some degree of restitution
2 No. 12-1499
for his victims. Faced with the ancient tension between
justice and mercy, the district judge sentenced Banas to
160 months of imprisonment. That was a significant
sentence, but one well below the Guidelines range.
Banas appealed, challenging his sentence on both proce-
dural and substantive grounds. Because Banas’s sentence
was reasonable and free of procedural error, we affirm.
I. B ACKGROUND
The facts of this case, which we draw from the
Presentence Investigation Report (“PSR”), Banas’s plea
agreement, and the plea agreement of his co-defendant,
are largely undisputed. The story begins in 2003, when
Congress created Health Savings Accounts. See Medicare
Prescription Drug, Improvement, and Modernization
Act of 2003, Pub. L. 108-173, § 1201, 117 Stat. 2066, 2469-79
(2003). These accounts help people with high-deductible
health plans save for health care costs by providing tax-
preferred treatment for money saved for future med-
ical expenses. See 26 U.S.C. § 223. In 2004, defendant
Anthony Banas, along with Jeremy Blackburn and
Vikram Kashyap, started a company called Canopy
Financial, Inc. The company created a suite of software
products that allowed savers to manage their Health
Savings Accounts online. Blackburn served as Canopy’s
president, Kashyap as its CEO, and Banas as its Chief
Technology Officer.
Canopy’s innovative software won praise throughout
the industry. Business grew, and, by 2009, Canopy had
over a hundred employees. Its success also attracted
No. 12-1499 3
the attention of venture capital and private equity firms.
Before deciding to invest, these firms required Canopy
to turn over various financial documents. Canopy pro-
vided them, including financial statements audited by
KPMG, a respected international accounting firm. Satis-
fied that Canopy was a solid investment, a group called
Spectrum Equity Investors bought $62,400,000 in pre-
ferred stock. Investors at other firms bought another
$12,500,000 in preferred stock.
There was only one problem: Canopy had cooked the
books. For starters, there never was a KPMG audit.
Instead, Blackburn concocted financial statements out of
thin air and put them on fake KPMG letterhead. These
counterfeits suggested—falsely—that Canopy’s revenue
exceeded its expenses. Banas played a part, too; he re-
viewed the phony papers to make sure they looked
like real KPMG documents. Banas also sent emails,
drafted by Blackburn, that falsely suggested Canopy
was in contact with KPMG auditors.
The two men took other steps to further their fraud.
Banas recruited a Canopy employee to pose as a
customer on calls with investors. Banas and Blackburn
used this fake “customer” to funnel more false informa-
tion to Spectrum. Blackburn also concocted fake bank
statements in Canopy’s name, and Banas knowingly
forwarded these statements on to Spectrum.
Worse, Blackburn and Banas started raiding their
clients’ Health Savings Accounts. Given the nature of its
business, Canopy had access to millions of dollars in
client funds. Eventually, the allure of that cash proved too
4 No. 12-1499
great, and Banas and Blackburn started using it to pay
Canopy’s operating expenses and to feather their own
nests. At the same time, they made fraudulent misrepre-
sentations to induce their clients to keep the money
coming. Banas, for instance, falsely represented to a
corporate customer (who represented roughly 700 indi-
vidual clients) that the clients’ deposits were earning
4.25% interest. In fact, they were earning far less.
By the time Banas and Blackburn were stopped, they
had misappropriated more than $18,000,000 in client
funds. Blackburn spent roughly $6,000,000 in client
funds on home renovations, fancy watches, a fleet of
luxury cars, and a lease on a corporate jet. Banas stole
less—somewhere in the area of $700,000—but he still
lived the high life. He rented a mansion in California for
$20,000 a month, drove a Lamborghini, and threw lavish
parties. Of the $700,000 in client money that he stole,
Banas invested about $300,000 in a nightclub and another
$400,000 for his own “personal expenditures.” (Plea
Agreement at 8.) The people he stole from were less
fortunate. Victims who lost their health savings in-
cluded retirees, working families, and a breast cancer
patient who “desperately needed” the lost money to pay
for surgery and chemotherapy. (PSR at 6-8.)
In early 2009, Canopy’s board of directors started to
get suspicious and ordered an internal investigation.
The FBI also got involved after an insurance provider
noticed that Canopy’s customers were bouncing checks
for health care services. When the FBI confronted Banas
on December 20, 2009, he gave a full confession. Once
the fraud came to light, Canopy went bankrupt.
No. 12-1499 5
Following his confession, Banas consented to several
civil judgments against him and cooperated with the
FBI, IRS, SEC, and Canopy’s bankruptcy trustee. He also
scaled back his lifestyle and turned over almost all of his
assets as restitution to his victims. On March 1, 2010,
the government returned an information against Banas
for two counts of wire fraud under 18 U.S.C. § 1343.
Banas waived indictment, and on September 8, 2010,
pled guilty to one count of wire fraud. Blackburn also
pled guilty. On January 24, 2012, the district court sen-
tenced Blackburn to 180 months of imprisonment.
Blackburn will not serve that sentence; he was found
dead the day before he was to report to prison.
Banas appeared before the same district judge for
sentencing a few weeks later. The probation office calcu-
lated Banas’s Guidelines sentencing range at 188-235
months, and the government asked for a 180-month
sentence. Banas, on the other hand, argued that his sen-
tence should be “significantly less than Mr. Blackburn’s”
180-month sentence. (Sentencing Tr. at 24.) Ultimately,
the district judge sentenced Banas to 160 months of im-
prisonment. Banas now appeals, arguing that this sen-
tence was both procedurally improper and substantively
unreasonable. For the reasons that follow, we disagree.
II. A NALYSIS
A. Procedural Error
District judges, not appellate judges, are best posi-
tioned to determine criminal sentences. See United States
6 No. 12-1499
v. Gammicchia, 498 F.3d 467, 469 (7th Cir. 2007). As a
result, we generally defer to a sentencing court’s judg-
ment and review the substance of criminal sentences only
for abuse of discretion. See United States v. Leiskunas, 656
F.3d 732, 736-37 (7th Cir. 2011). But whenever “a district
judge is required to make a discretionary ruling that is
subject to appellate review, we have to satisfy ourselves,
before we can conclude that the judge did not abuse
his discretion, that he exercised his discretion, that is,
that he considered the factors relevant to that exercise.”
United States v. Robertson, 662 F.3d 871, 880 (7th Cir. 2011).
In other words, we will not defer to a sentencing court
until we are satisfied, under de novo review, that the
court followed proper sentencing procedure. United
States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012).
That procedure begins with calculating the advisory
range under the Sentencing Guidelines. Id. at 700. Fol-
lowing that, “the defendant must be given the oppor-
tunity to bring to the court’s attention any factors under
[18 U.S.C.] § 3553(a) that might warrant a sentence
below the Guidelines range.” Id. The sentencing judge
is then required to consider these statutory factors.
United States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005).
That said, “the judge need not discuss and make
findings as to each of these factors,” id., and “we reg-
ularly affirm sentences where the district judge does
not explicitly mention each mitigation argument raised
by the defendant,” United States v. Paige, 611 F.3d 397,
398 (7th Cir. 2010). Instead, it “is enough that the
record confirms that the judge has given meaningful
consideration to the section 3553(a) factors.” Williams,
425 F.3d at 480.
No. 12-1499 7
Banas’s opening brief contends that the district court
made a procedural mistake by failing to consider two of
his arguments in mitigation.1 Banas acknowledges that
the district court “referenced” his “main arguments” that
(1) Blackburn manipulated him; and (2) Banas fully
cooperated with the government. (Appellant’s Br. at 12.)
But, Banas continues, the district judge did not “provide
any insight into how those items were considered in
calculating Banas’[s] sentence.” (Id.) Thus, Banas con-
cludes, the district court “provided no reasoned basis
for the chosen sentence.” (Id.)
We disagree. The district judge specifically stated that
he had weighed “all of the 3553 factors” both in mitiga-
tion and in aggravation. (Sentencing Tr. at 29.) Moreover,
it is clear from the face of the record that the judge
gave “meaningful consideration,” Williams, 425 F.3d at
480, to both of Banas’s key arguments. Regarding
Banas’s manipulation argument, the district judge had
this to say:
I could see how there was some manipulation
by Mr. Blackburn of Mr. Banas and a long-term
friendship. Mr. Blackburn is certainly a character
in and of himself, as shown by not only the finan-
cial fraud and his ability to sell himself and his
company but also in his personal lifestyle. Some
would refer to Mr. Blackburn as a bad seed.
1
Banas raises additional procedural arguments in his reply
brief. Because Banas did not raise these arguments in his
opening brief, they are forfeited, and we will not address them.
See United States v. Carter, 695 F.3d 690, 701 n.6 (7th Cir. 2012).
8 No. 12-1499
But, Mr. Banas, when you run into a bad seed,
you are ultimately left with a choice. You either
help the bad seed succeed or you walk away
from the whole thing. Or the best choice of all is
to stop the bad seed. And there is no doubt, your
attorney Mr. Roadman points out, that you
could and should have stopped this fraud. And
you did not. And I wish you had because that
would make sentencing you so much easier.
(Sentencing Tr. at 28.)
And regarding Banas’s cooperation, the district judge
stated:
I certainly credit your cooperation. Your efforts
with the Trustee [appointed to recover assets for
the victims of the fraud] are very commendable.
The letters that have been written on your behalf
I think are somewhat different than the letters
that have been—were written for Mr. Blackburn.
I think there is much more character to you. And
in particular I will tell you the letters written by
your parents are heartbreaking. It is heart-
breaking for a son to have to have letters like
that from his parents.
But I will tell you, just as heartbreaking are the
letters from victims in this case who are
searching for those funds to take care of their
medical needs.
(Id. at 28-29.)
No. 12-1499 9
There is little for us to add. The record clearly shows
that the district judge meaningfully considered Banas’s
arguments. As a result, there was no procedural error.
See Williams, 425 F.3d at 480.
B. Substantive Error
Banas also argues that his sentence was substantively
unreasonable because it (1) failed to account for
various mitigating factors; and (2) is disproportionately
long compared to Blackburn’s sentence. Our review is
deferential, and we will reverse only if the district court
abused its discretion. United States v. Matthews, 701
F.3d 1199, 1203 (7th Cir. 2012). Where, as here, the sen-
tence is below the Guidelines range, we presume that it
is reasonable. United States v. Klug, 670 F.3d 797, 800
(7th Cir. 2012). Moreover, where, as here, the district
court “has correctly calculated a Guidelines range, we
assume that significant consideration has been given to
avoiding unwarranted disparities between sentences.”
United States v. Statham, 581 F.3d 548, 556 (7th Cir. 2009).
This assumption also applies “with added force” in this
case because Banas does not challenge “the technical
accuracy of the district court’s Guidelines calculation”
and “the district court imposed a sentence well below
the suggested Guidelines range.” United States v. Dean, ___
F.3d ___, No. 12-1539, 2013 WL 362781, at *3 (7th Cir.
Jan. 31, 2013).
The district court sentenced Banas to 160 months of
imprisonment. Banas acknowledges, as he must, that
this sentence is below the Guidelines range of 188-235
10 No. 12-1499
months. He also acknowledges that this sentence was
below the 180-month sentence given to Blackburn, his co-
defendant. Nevertheless, Banas argues that his sentence
was objectively unreasonable because it was not even
lower.
We disagree. True, many facts weigh in favor of mitiga-
tion. Banas is a first-time offender and is unlikely to
recidivate. To his great credit, he admitted his guilt,
took responsibility for his actions, and has worked to
provide restitution to his victims. Arguably, he was
less involved in planning the fraud than Blackburn. And,
even if Banas was greedy and unscrupulous when he
looted Canopy, at least he did not manage to loot quite
as much as Blackburn did.
But the district judge heard and considered all of
these facts.2 And set against them, the district judge also
had to consider the extraordinarily serious nature of the
underlying crime. Banas was a key player in more than
2
Banas also argues that an earlier release would allow him to
earn more money to pay as restitution to his victims. (Appel-
lant’s Br. at 19-20.) But Banas did not present this argument
to the district court. (See R. 84); (Sentencing Tr. at 12-24). As a
result, the argument is forfeited, and we review it only for
plain error. See United States v. Taylor, 628 F.3d 420, 424 (7th Cir.
2010). We do not think that a plain error occurred here. A
plain error is (1) an error (2) that is “clear” or “obvious” and
(3) affected the defendant’s “substantial rights.” United States
v. Olano, 507 U.S. 725, 734 (1993). We do not think it would
have been a “clear” or “obvious” error to conclude that the
value of the extra restitution Banas might earn was out-
weighed by the need to punish Banas for his crimes.
No. 12-1499 11
$90,000,000 of theft and fraud. That fact alone could
reasonably justify a significant sentence. See United
States v. Vallone, 698 F.3d 416, 497-98 (7th Cir. 2012) (in
sentencing defendant for tax crimes, mail fraud, wire
fraud, and conspiracy, the district judge could reasonably
consider the $50,000,000 loss amount as a “significant
factor” in favor of a longer sentence).
Even worse was Banas’s choice of victims. Banas stole
medical savings from his clients and used them to
finance his own high-rolling lifestyle. Surely stealing
health care money from sick people also justifies a
lengthy sentence. Cf. United States v. Schlueter, 634 F.3d
965, 967 (7th Cir. 2011) (“an above-range sentence was
appropriate because Schlueter . . . took advantage of
personal relationships to cheat them out of significant
sums they needed at critical stages of their lives”); United
States v. Tockes, 530 F.3d 628, 634 (7th Cir. 2008) (approving
above-range sentence for defrauding an elderly couple);
United States v. King, 506 F.3d 532, 536-37 (7th Cir. 2007)
(approving above-range sentence for defendant who
“pocket[ed] funds set aside for victims of Hurricane
Katrina”). And the district judge here reasonably recog-
nized this fact; he stated that he had “never seen another
financial crime this aggravated” in eighteen years as a
federal judge. (Sentencing Tr. at 27.) Given the severity
of the crime, and the fact that Banas still received a below-
Guidelines sentence, we do not think that the district
judge’s sentence was unreasonably harsh.
Finally, Banas argues that he was entitled to “a far
lesser sentence than Blackburn” because he was less
12 No. 12-1499
culpable than Blackburn. (Appellant’s Br. at 17.) This
argument borders on frivolous. Banas received a lower
sentence than Blackburn; Banas got 160 months, and
Blackburn 180 months. And, because that sentence
was below-Guidelines, we presume it to be reasonable.
See Klug, 670 F.3d at 800. Banas has not overcome that
presumption. It was not unreasonable—or an abuse
of discretion—for the district court to decline to give
an even lower sentence for such a serious crime.
III. C ONCLUSION
We A FFIRM Banas’s sentence.
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