613 F.3d 706 (7th Cir. 2010), 09-2862, United States v. Gary

Docket Nº:09-2862.
Citation:613 F.3d 706
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Keith A. GARY, Defendant-Appellant.
Attorney:William E. Coonan, Office of the United States Attorney, Civil Division, Fairview Heights, IL, for Plaintiff-Appellee. Stephen C. Williams, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
Judge Panel:Before POSNER, WOOD, and HAMILTON, Circuit Judges.
Case Date:July 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 706

613 F.3d 706 (7th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Keith A. GARY, Defendant-Appellant.

No. 09-2862.

United States Court of Appeals, Seventh Circuit

July 28, 2010

Argued June 9, 2010.

Page 707

William E. Coonan, Office of the United States Attorney, Civil Division, Fairview Heights, IL, for Plaintiff-Appellee.

Stephen C. Williams, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Keith Gary appeals from his sentence for bankruptcy fraud, arguing that the district court failed to give sufficient consideration to his family circumstances. See United States v. Schroeder, 536 F.3d 746, 755-56 (7th Cir.2008) (remanding for further consideration of defendant's extraordinary family circumstances). We conclude that the district court gave the family issue sufficient consideration, as shown by its efforts to arrange for Gary and his ex-wife to serve staggered prison sentences for their joint crimes. We affirm Gary's sentence.

I. The Facts

Keith Gary and his ex-wife Stacie Gary divorced in 2002, but both remained in the same house taking care of their two children. The Garys' legal troubles began in March 2007, when they filed a joint Chapter 13 bankruptcy petition. Stacie had received a substantial monetary settlement for a workers' compensation claim just days before filing for bankruptcy. The Garys failed to disclose the award in their bankruptcy petition and lied about it while testifying under oath at a later creditors' meeting. After the fraud came to light, both of the Garys were indicted on multiple counts of bankruptcy fraud. Keith pled guilty to three counts for making false statements and taking a false oath. See 18 U.S.C. § 152(2) & (3). Stacie pled guilty to five counts.

In a joint sentencing hearing, the district court sentenced Keith at the bottom of his guideline range to a total of 12 months and 1 day in prison. Stacie had a significant criminal history, and the court sentenced her at the top of her higher guideline range to 21 months in prison. Out of concern for the Garys' two children, who faced separation from both parents, the district court tried to ensure that the two defendants would serve their prison terms in sequence.

In the sentencing hearing, Keith argued for a below-guideline sentence, either limited to probation with a condition of home confinement or a split sentence combining no more than five months in prison followed by five months of home confinement. He argued that he was less culpable than Stacie, who had controlled most of the settlement money and had taken steps to hide it in different bank accounts. His primary argument for a below-guideline sentence in the district court was based on his recent employment history. He argued that he had demonstrated his commitment to addressing the financial problems that motivated the bankruptcy fraud, and that his family responsibilities meant he was less likely to commit new crimes.

Page 708

As might be expected when both parents of young children are facing prison sentences, the defendants' family circumstances were one focus of the sentencing hearing. Keith claimed that his arrest served as a much needed wake-up call to begin to turn things around for himself and his children. Despite earlier struggles with depression and a recent suicide attempt, he said he had tried to make up for his mistakes while he awaited sentencing. He had taken on two jobs to provide for the children, to pay off family debts, and to establish some financial stability. He hoped the district court would recognize his efforts.

Keith acknowledged that, if both he and Stacie were imprisoned, other family members could care for their children. Nevertheless, his attorney asserted in a sentencing memorandum that his absence would take an " extreme" toll on the family because his children would lose the " financial and emotional support" that he was providing as the " sole breadwinner." Keith also urged that, if he was going to be sent to prison, the court should...

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