U.S.A. v. Buckowich
| Decision Date | 22 March 2001 |
| Docket Number | No. 99-4105,99-4105 |
| Citation | 243 F.3d 1081 |
| Parties | (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Cora Buckowich, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-CR-215--Thomas J. Curran, Judge.
Before Posner, Easterbrook, and Ripple, Circuit Judges.
Cora Buckowich raised money using the lure of spectacular profits. She promised that an investment of $500,000 placed in overseas "bank note trading programs" would grow to $93 million within three months. The offer was ludicrous; a promise of extravagant returns is a signal of fraud (and it also should have posed the question why, if Buckowich had such amazing opportunities, she would allow the profits to go to strangers rather than reaping them herself). Yet Gordon Ralph was taken in; and the oddity that a well-to-do person would be such a sucker was compounded by the fact that Ralph had his lawyer William Wylie represent him in the transaction. How any competent attorney could have failed to protect his client from this scam is a mystery, but Wylie and his partner Grant Markuson seem to have been more naive than Ralph. At least Ralph knew that he needed professional assistance. Wylie and Markuson not only failed to steer Ralph away from the fraud but also did not keep tabs on the money. Buckowich used a series of bank transfers to spirit the funds from Markuson's lax supervision during a trip to London for the supposed closing. By the time prosecutors caught up with her, Buckowich had spent the proceeds and could not make restitution. She has been sentenced to 40 months' imprisonment for wire fraud, 18 U.S.C. sec.1343, and unlawful financial transactions, 18 U.S.C. sec.1957.
Buckowich's sole argument on appeal is that the district judge erroneously believed that he lacked authority to sentence her below the applicable range under the Sentencing Guidelines, and would have given her the benefit of a downward departure had he recognized the extent of his discretion. This is an implausible line of argument, because the district judge did not act as if constrained to sentence Buckowich to a longer term than the judge believed appropriate. After concluding that the guidelines prescribed a range of 33-41 months' imprisonment, the judge selected a sentence of 40 months, almost the top of the range. A judge who preferred to depart downward, but thought that legal rules blocked such a step, would sentence the defendant at the bottom of the available range. We do not mean that a sentence above the bottom of the range makes it legally impossible for a defendant to argue on appeal that the judge imposed an excessive sentence because he misunderstood the extent of his discretion; perhaps some odd events that we do not foresee would reconcile a top-of- range sentence with a desire to depart downward, if that step were lawful. But a top-of-range sentence surely dispels ambiguity in the district judge's rulings. If there are two possible ways to understand the district court's ruling--either as a discretionary decision not to depart downward, or as a statement of belief that the law precludes downward departure, the former not reviewable on appeal, see United States v. Franz, 886 F.2d 973 (7th Cir. 1989), but the latter reviewable under 18 U.S.C. sec.3742(a)--a top-of- range sentence demonstrates that the judge meant the former. A high-in-range sentence also usually demonstrates that, even if the judge erred in believing that he lacked discretion to depart, this error did not harm the defendant and so does not furnish grounds for reversal.
Inferences drawn from the high-in-range sentence resolve this appeal against Buckowich, for the district court's ruling is ambiguous--doubtless because Buckowich's lawyer presented a garbled oral argument at sentencing. (A different lawyer represents Buckowich on appeal and is not responsible for the events we describe.) After receiving a copy of the presentence report, Buckowich's lawyer filed several documents. One of these, entitled "Objections to Presentence Report", sets out 14 numbered objections to statements and calculations in the report. Objections 7 through 10 contend, in slightly different ways, that the district court should start with the base offense level for fraud under U.S.S.G. sec.2F1.1(a), rather than the base offense level for money laundering in sec.2S1.2(a). (The guidelines treat a violation of sec.1957 as a form of money laundering, and we do likewise.) The base offense level for fraud is 6, with a 9-level increase for a loss between $350,000 and $500,000, adding up to a total offense level of 15. But the base offense level for money laundering is 17, with 3 more levels under sec.2S1.1(b)(2)(D) for laundering between $350,000 and $600,000, yielding a total offense level of 20. Objection 10 argues that the district court should not "group" the two offenses under sec.3D1.2. Counsel apparently believed that non-grouping would enable the district judge to treat the total offense level as 15. Actually it would have increased the offense level to 22, because it would have added a second "unit" with a corresponding increase under sec.3D1.4. The district court denied this request, grouped the offenses, and as sec.3D1.3(a) requires settled on a final offense level of 20. Buckowich's criminal history of I produced the 33-41 month sentencing range.
Another document filed by Buckowich's lawyer, captioned "Memorandum re: Sentencing", argued for a downward departure on several grounds, including Buckowich's medical problems (she is a diabetic and has been diagnosed with cancer), the consequences suffered in her private life (her husband left her as a result of these events, and she is financially ruined), her assertion that someone else was the mastermind of the crime, and her contention that Ralph should have been able to avoid the loss he suffered. The district judge did not think that these circumstances, individually or collectively, justified a downward departure, and under Franz such a decision is not reviewable.
On his feet at sentencing, counsel offered an admixture of these arguments. He suggested that it is unjust that the base offense levels for fraud and money laundering are so different; argued that money laundering was just incidental to Buckowich's fraud offense, making sec.2F1.1 the more appropriate guideline to use; and continued:
[T]his circuit agrees with several other circuits in the grouping theory versus the distinct offense theory of at least four other circuits which conflict with this circuit. And fortunately, the Seventh Circuit grouping, as the probation department in grouping in taking the highest offense level, highest offense level in this case, if we have to use money laundering we go from the wire fraud of 6 to the money laundering of 17, even though these are monetary instruments of personal checks in her account. Not within the heartland of cases I would suggest to the court that are within the ambit of application of the money laundering statute. Where does this leave us? What I'm going to suggest to the court is that the court follow the Eighth Circuit which is also a grouping circuit that follows the Seventh Circuit, and whatever guideline it applies it does a downward departure to make up for what could be an injustice in this case of going from a base offense level of 7 to 17.
This nearly incoherent argument drew the unsurprising response from the court that it would apply seventh circuit rather than eighth circuit law. That is the response that, according to Buckowich's appellate counsel, makes the error of supposing that departure was legally impossible.
Put grouping aside, for it has nothing to do with the subject. Counsel did at least use one of the code words of a request for a departure--the submission that the circumstances are not within the "heartland" of the applicable guideline. See Koon v. United States, 518 U.S. 81, 93-100 (1996). Departure is proper only when "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. sec.3553(b). Lawyers and judges often use "outside the heartland" to allude to these statutory requirements. Counsel might have been suggesting...
To continue reading
Request your trial
- U.S. v. Ceballos
- United States v. Harris
-
U.S.A. v. Gracia
...downward departure but wants us to simply disregard the money laundering count. This same argument was addressed in United States v. Buckowich, 243 F.3d 1081 (7th Cir. 2001). In Buckowich, the defendant was convicted of wire fraud under 18 U.S.C. sec. 1343 and unlawful financial transaction......
- United States v. Harris