383 F.3d 615 (7th Cir. 2004), 03-3557, United States v. Loutos

Docket Nº:03-3557.
Citation:383 F.3d 615
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Peter A. LOUTOS, Sr., Defendant-Appellant.
Case Date:September 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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383 F.3d 615 (7th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Peter A. LOUTOS, Sr., Defendant-Appellant.

No. 03-3557.

United States Court of Appeals, Seventh Circuit

September 8, 2004

Argued April 14, 2004.

Rehearing Denied Oct. 13, 2004.

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Christopher P. Hotaling (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Allan A. Ackerman (argued), Patrick A. Tuite, Arnstein & Lehr, Chicago, IL, for Defendant-Appellant.

Before BAUER, COFFEY, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

On October 30, 2002, Peter Loutos pleaded guilty to knowingly aiding and abetting an individual in making a false statement for the purpose of opening an account at the First of America Bank in violation of 18 U.S.C. §§ 1014 and 2. The district court imposed a 37-month custodial sentence. For the reasons stated herein,

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we affirm his conviction but remand to the district court for resentencing.


I. The Offense

In June of 1996, Loutos and his co-defendant Daniel Benson went to the First America Bank in Park Ridge, Illinois. Loutos accompanied Benson to the bank to aid him in opening a bank account for a corporation named Lennox Investment Group, Ltd. ("Lennox"). At that time, Loutos knew that Benson was not an owner, officer, or employee of Lennox, and that Benson did not have the authorization documents from Lennox that would enable Benson to open a bank account on behalf of Lennox. At the bank, Loutos and Benson met with a bank employee to open the Lennox account. Loutos, an attorney who had a long relationship with the bank, convinced the bank employee to open the Lennox account without the usual corporate authorization documents. As part of the application process, Benson and Loutos each completed a deposit account signature card and Benson completed a sole owner certification. To influence the bank in opening the account, and in Loutos' presence and with his knowledge, Benson falsely represented that he [Benson] was the sole owner of Lennox and he identified Loutos as a signatory on the account.

II. The Guilty Plea

On October 21, 2001, an indictment was returned, charging Loutos with eight counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2, one count of conspiring to commit money laundering offenses in violation of 18 U.S.C.§ 1956(h), and seven counts of money laundering in violation of 18 U.S.C. §§ 1956(a) (1) (B) (i), 1957, and 2. 1 However, on October 30, 2002, shortly before trial, a superseding information was filed and, in accordance with a written plea agreement, Loutos pleaded guilty to one count of making a false statement on an application for the purpose of influencing a federally insured bank in violation of 18 U.S.C. §§ 1014 and 2. 2

The provisional Sentencing Guidelines calculations contained in the Plea Agreement indicated a Guideline sentencing range of 0-6 months of incarceration. At the time of the plea, the court deferred its decision to accept or reject the Plea Agreement. As had been scheduled, the trial of Loutos' co-defendants began on November 4, 2002. On December 11, 2002, the jury returned a verdict of guilty as to all counts against each defendant, except that they returned a verdict of not guilty as to one count of violating § 1957.

After receiving a copy of the presentencing report ("PSR"), the district court requested that the parties address some additional sentencing issues and indicated that Loutos' sentencing range may exceed 0-6 months. Specifically, the district court asked the parties to address the following issues: (1) whether any of the fraud proven at the trial of the other defendants was relevant conduct for Loutos' offense; (2) assuming relevant conduct, what amount of loss should be calculated; and (3) assuming relevant conduct, whether any of adjustment should be made based on Loutos' role in the offense.

III. Loutos' Motion to Withdraw his Plea

On February 27, 2003, Loutos filed a motion to vacate his guilty plea based on four grounds: (1) that he has the absolute

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right to withdraw his guilty plea because the court has not actually accepted his plea in that U.S.S.G. § 6B1.1 precludes accepting the plea until after the supplemental or revised PSR has been considered; (2) that under Fed.R.Crim.P. 11, he was not properly advised by the court prior to pleading guilty; (3) that he has a fair and just reason for withdrawing the plea because of a mutual mistake of the parties as to the correct guideline calculation; and (4) that he has a fair and just reason for withdrawing the plea because he is legally innocent of the bank fraud. On April 3, 2003, the district court denied the defendant's motion to vacate his guilty plea in a forty-five page memorandum opinion and order that addressed each of the claims raised by Loutos.

IV. Sentencing

On July 2, 2003, the district court entered another memorandum and order concerning Loutos' sentence. In his opinion, the district court concluded that the $11 million investment fraud proven during the trial of Loutos' co-defendants should be considered as relevant conduct for the bank fraud to which Loutos pleaded guilty. Based on this determination, the district court recalculated the defendant's total offense level under the Sentencing Guidelines to reflect this relevant conduct. This resulted in a total offense level of 21. A total offense level of 21 and a criminal history category of I provided for a sentencing range of 37 to 46 months. The...

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