U.S.A. v. Parolin

Citation239 F.3d 922
Decision Date12 February 2001
Docket NumberNo. 00-1676,00-1676
Parties(7th Cir. 2001) United States of America, Plaintiff-Appellee, v. John F. Parolin, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 912--Charles R. Norgle, Sr., Judge.

Before Flaum, Chief Judge, and Cudahy and Posner, Circuit Judges.

Flaum, Chief Judge.

John F. Parolin pled guilty to two counts of mail fraud in violation of 18 U.S.C. sec. 1341 and one count of interstate transportation of stolen property in violation of 18 U.S.C. sec. 2314. Parolin now appeals his sentence, arguing that: (1) the district court during the sentencing hearing did not make sufficient findings regarding certain proposed enhancements; (2) the district court erred when it enhanced Parolin's sentence for defrauding vulnerable victims, U.S.S.G. sec. 3A1.1(b)(1); (3) the district court erred when it increased Parolin's offense level for misrepresenting that he was acting on behalf of a government agency, U.S.S.G. sec. 2F1.1(b)(4)(A); (4) the district court erred when it enhanced his sentence for violating a judicial order, U.S.S.G. sec. 2F1.1(b)(4)(B); and (5) the district court did not comply with Apprendi v. New Jersey, 530 U.S. 466 (2000), when it imposed a sentence that exceeded the statutory maximum for each individual count. For the reasons stated herein, we affirm.

Background

John F. Parolin defrauded several individuals and entities and the resulting loss to the involved parties was approximately $2.5 million. He was an attorney from 1976 until May of 1995, when he voluntarily surrendered his law license. His schemes were numerous and at times complex. Since most of the frauds he engaged in are not relevant to this appeal, we will describe those schemes which are relevant to Parolin's legal challenges. Parolin defrauded Elisabeth Jesswein of: (1) $100,000 in a stock purchase scheme; (2) $200,000 in a loan scam; and (3) $15,000 for falsely representing that he made two estimated tax payments on her behalf to the IRS. He did send Jesswein various amounts of money concerning each of the above schemes, but he never repaid her fully. In February of 1993, he defrauded Matilda Moss of approximately $75,000, which came from the proceeds of a life insurance policy. As her financial advisor, he also said that he would negotiate with a bank concerning her second mortgage. He never did so and failed to make certain mortgage payments. Almost three years later, in January of 1996, Parolin gave Moss a check for approximately $1,258, which was worthless because it was drawn on a bank account that had been closed for six months. Despite Parolin's continual assurances that he would repay her, he never fulfilled his promise. During 1995, Parolin also defrauded Klaus Wieske and Hans Meng of approximately $712,5000. He represented that he could act as their attorney and help them purchase a building in Chicago, Illinois that he said the U.S. Department of Housing and Urban Development ("HUD") had foreclosed upon, when in fact HUD had not done so.

Parolin pled guilty to a three-count superseding information on November 2, 1999: Counts One and Three involved mail fraud in violation of 18 U.S.C. sec. 1341 and Count Two concerned transportation of stolen property in violation of 18 U.S.C. sec. 2314. On March 2, 2000, the district court sentenced Parolin to 188 months of imprisonment on Counts One, Two, and Three, and to a consecutive six months pursuant to 18 U.S.C. sec. 3147. The court also ordered that he pay restitution of $2.5 million, minus one dollar. Parolin now appeals his sentence.

Discussion
A. The District Court's Findings Regarding Parolin's Sentence

Initially, we must address Parolin's contention that the district court did not make particularized findings with regard to the following sentencing enhancements: (1) vulnerable victims, U.S.S.G. sec. 3A1.1(b)(1); (2) misrepresenting that he was acting on behalf of a government agency, U.S.S.G. sec. 2F1.1(b)(4)(A); and (3) violating a judicial order, U.S.S.G. sec. 2F1.1(b)(4)(B). The Sentencing Guidelines instruct a district court to resolve disputes concerning sentencing factors at a sentencing hearing in accordance with Fed.R.Crim.P. 32(c)(1). See U.S.S.G. sec. 6A1.3(b) (1998). For our purposes, the portion of Fed.R.Crim.P. 32(c)(1) at issue is: "At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the presentence report. . . . For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing." We turn to whether the district court complied with Fed.R.Crim.P. 32(c)(1).

The record indicates that the district court's findings were of some concern to both parties. Initially, the government asked the court whether it was "going to either adopt the PSI [presentence investigation report] or [make] oral rulings or written rulings on the other matters?" The district court responded, "Well, implicit in what I said was that the Court adopts the presentence investigation report, which is consistent with the government's position." Some time later in the hearing, Parolin's counsel again raised the issue of whether adequate findings had been made by the court, "Judge, additionally, I know the government had already asked, but your Honor is not going to draft any written findings regarding each of the Guideline issues?" The court at this point attempted to elicit a more specific objection, "Well, if you want me to say anything more than what I have said, you can bring it to my attention. I feel that I have said enough. And if you want me, however, to say more, what is it you want me to say?" Parolin's counsel then acknowledged that the district court had "basically adopted [the] probation's and the government's position." Once again, the court reiterated its position: "[A]s to an amount of loss and . . . acceptance of responsibility, . . . I have agreed with the defendant. Otherwise I am adopting the probation department's presentence investigation report, . . . which is consistent with the government's position on all of these other key issues and the ultimate determination of the number of points assessed." Parolin's counsel did not make any further objections to the district court's explanation of its findings.1 These exchanges reveal that the district court purposefully and clearly adopted the presentence investigation report ("PSR") as constituting its own findings on certain contested sentencing factors.

As the record reflects, the court was familiar with the relevant sentencing disputes. Both sides briefed the contested sentencing questions and were given an opportunity during the sentencing hearing to argue the issues and present evidence. The court stated that it had reviewed the defendant's and the government's submissions, and remarked to Parolin's counsel, "I want to assure counsel that I have read all of your submissions and given this case a great deal of thought." We have no reason to doubt the district court's assertion that it carefully considered what would be an appropriate sentence for Parolin. A court can satisfy the requirements of Rule 32 by adopting the findings and calculations contained in the PSR, "provided that those findings are based upon sufficiently reliable information. In fact, when a defendant has failed to produce any evidence calling the report's accuracy into question, a district court may rely entirely on the PSR." United States v. Taylor, 72 F.3d 533, 547 (7th Cir. 1995) (internal citations omitted). Parolin made no affirmative contention that the PSR was inaccurate; therefore, we have no reason to question the court's reliance upon the PSR. The court stated that it had adopted the PSR and a district court's "reference to the findings and rationale in the presentence report allows us, as a reviewing court, to evaluate the district court's decision, and that is all that is required." United States v. Taylor, 135 F.3d 478, 483 (7th Cir. 1998). Therefore, we find that the district court's adoption of the PSR was proper and allows us to review the defendant's objections to particular sentencing enhancements that the district court imposed.

B. Vulnerable Victims

Parolin challenges the district court's decision to enhance his sentence two offense levels based upon its conclusion that Matilda Moss and Elisabeth Jesswein were vulnerable victims. Section 3A1.1(b)(1) of the Sentencing Guidelines provides that "[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels." The Sentencing Guidelines commentary states that a vulnerable victim is an individual "(A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under sec.1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." U.S.S.G. sec. 3A1.1(b)(1), cmt. n.2. Determining whether a defendant's victims were "unusually vulnerable" is a question of fact that is reversible only for clear error. See United States v. Billingsley, 115 F.3d 458, 462 (7th Cir. 1997); see also United States v. Sutherland, 955 F.2d 25, 26 (7th Cir. 1992). To warrant the imposition of the vulnerable victim enhancement, it is only necessary that the government establish that a single individual was vulnerable. See United States v. Paneras, 222 F.3d 406, 414 (7th Cir. 2000).

Parolin's main contention is that...

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