U.S. v. Kopshever, s. 92-2562

• Decision Date: 23 September 1993
• Docket Number: 92-2563,Nos. 92-2562,s. 92-2562
• Citation: 6 F.3d 1218
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. KOPSHEVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1218

6 F.3d 1218

UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. KOPSHEVER, Defendant-Appellant.

Nos. 92-2562, 92-2563.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1993.

Decided Sept. 23, 1993.

Norman R. Smith, Asst. U.S. Atty., Crim. Div., Fairview Heights, IL (argued), for plaintiff-appellee.

Phillip J. Kavanaugh, Office of the Federal Public Defender, East St. Louis, IL, for defendant-appellant.

Before RIPPLE and MANION, Circuit Judges, and SHADUR, Senior District Judge. ^*

SHADUR, Senior District Judge.

Thomas Kopshever ("Kopshever") appeals from the concurrent sentences imposed on him after he pleaded guilty to two informations, one based on a charge of counterfeiting a large number of $20 Federal Reserve Notes and the other charging both (1) fraud against financial institutions and (2) wire fraud. We have jurisdiction of his appeals under 28 U.S.C. Sec. 1291.

We dismiss Kopshever's appeal on the counterfeiting charge for lack of standing. But because his sentence on the fraud charges involved at least two clear errors, we reverse and remand our No. 92-2653 (Case No. 92 CR 40021-JLF in the district court) for resentencing.

Facts and Procedural History

On April 2, 1992 Kopshever changed his original pleas of not guilty to two indictments, which had been brought in the Southern District of Illinois, to pleas of guilty to newly-brought superseding informations embracing the same charges. Case No. 91-40056-JLF charged him with the use of a color photocopier and other tools to counterfeit 756 Federal Reserve Notes in violation of 18 U.S.C. Sec. 471. Case No. 92-40021-JLF comprised two lengthy and detailed counts:

1. Count 1 charged a conspiracy to commit loan and credit application fraud in violation of 18 U.S.C. Sec. 371. Kopshever--who owned Jackson County RV and Marine Center--and his co-conspirators would solicit acquaintances to put their names on false credit applications and sales agreements. However, the loan proceeds went not towards financing the sale of goods but for the business and personal use of the conspirators.

2. Count 2 charged wire fraud in violation of 18 U.S.C. Sec. 1343. Substantively it alleged Kopshever's extensive abuse of his trustee status to bilk three elderly women of their life savings.

As is usually the case with negotiated pleas, the plea agreement included an estimate of the components entering into the calculation under the Sentencing Guidelines ("Guidelines") ¹--in this instance a calculation agreed on by the parties and then concurred in by the probation officer who was assigned to prepare the presentence investigation report ("PSI"). That estimate reflected an adjusted offense level of 20 without additional enhancements, producing a suggested Guidelines range of 33 to 41 months' incarceration.

Under the plea agreement the government had stated its intention to recommend a

midrange custodial sentence of 37 months. But when the parties arrived at the district court for sentencing, the district judge expressed dissatisfaction with the Guidelines calculations and their outside limit of a 41-month sentence, warning of a possible departure as well as identifying one error that the judge perceived in the calculations. ² Kopshever's counsel then asked for added time to be able to address the district judge's stated concerns, and the judge postponed sentencing for three weeks. In the meantime, he requested that the parties submit filings as to the possible enhancement of the sentence and that the probation officer tender an addendum on the subject.

When that addendum was submitted, the probation officer had responded to the district court's concerns by recommending no fewer than four upward adjustments to the earlier Guidelines calculation of the offense level:

1. a four-level increase under Guideline Sec. 2F1.1(b)(6) for fraud affecting a financial institution and involving more than $1 million in gross receipts to the defendant;

2. a two-level increase under Guideline Sec. 3B1.1 for the defendant's being an organizer, leader or supervisor of criminal activity;

3. another two-level increase under Guideline Sec. 3A1.1 for the defendant's targeting of unusually vulnerable victims; and

4. an upward departure from the Guidelines in light of the factor mentioned in Guideline Sec. 5K2.3: extreme psychological injury to the victims.

Meanwhile the prosecutor had filed a detailed point-by-point memorandum in support of the parties' original agreed-upon calculation. That was then followed by a less-extended memorandum by defense counsel to the same effect.

At the postponed hearing the district judge reasserted his belief that neither the original PSI nor the plea agreement would call for a sufficiently stiff penalty (June 22, 1992 Tr. 5):

I feel an upward departure is very much warranted in this case, and I'll state my reasons pretty much here in a minute. I'm willing to hear anything you wish to say about it but this is an aggrievous [sic] case. There are victims. There are people out there that are hurting, financial institutions that have been taken advantage of, and I think it merits a substantial enhancement, and maybe even a departure after the enhancement.

True to his word, the district judge increased the offense level from 20 to 28 by adopting each of the first three suggestions contained in the probation officer's addendum, then decreed a two-level upward departure on the basis reflected in the addendum's fourth suggestion. That led to concurrent custodial sentences of 60 months on Count 1 (that was the maximum statutory sentence under 18 U.S.C. Sec. 471) and 120 months on Count 2 in Case No. 92-40021-JLF, and a concurrent sentence of 24 months on the single count in Case No. 91-40056-JLF.

Kopshever's Counterfeiting Sentence

Kopshever's appeal from his sentencing on the counterfeiting information is puzzling: It stems from his counsel's mistaken belief that the district court had imposed a 120-month sentence on that charge, rather than the actually-pronounced sentence of 24 months. Almost equally puzzling is the district judge's apparent reason for the imposition of that sentence to begin with: It was based on his mistaken belief that the counterfeiting charge was subject to a separate Guidelines calculation leading to a sentencing range of 18 to 24 months (that belief is reflected in the judge's determination of the Guidelines range that he included in the judgment and commitment order on that charge). On the contrary, as Guideline Secs. 3D1.1-3D1.5 teach (and as the probation officer had set out in the PSI), the appropriate Guidelines treatment of any sentencing on multiple charges is to make a single calculation for all of those charges (containing appropriate adjustments to reflect the number and grouping of the counts and the relative seriousness of the crimes involved).

As it turns out, those combined mistakes insulate the 24-month counterfeiting sentence from review. It will be recalled that the original plea agreement had reflected Kopshever's agreement to an analysis that produced a sentencing range of 33 to 41 months. Had the district judge imposed a sentence within that range, any attempted appeal by Kopshever would have been dismissed for lack of jurisdiction--typical of our numerous decisions to that effect is our statement in United States v. Solis, 923 F.2d 548, 551 (7th Cir.1991):

Absent an error of law or a misapplication of the guidelines, this court lacks jurisdiction to review sentences within the appropriate guidelines range.

Under the unusual situation presented here, whether the proper Guidelines calculation is that contained in the plea agreement or the much higher number adopted by the district judge or anything in between, in all events the 24-month sentence is below the Guidelines range. Kopshever lacks standing, then, to challenge that sentence so long as it remains concurrent with the sentence to be imposed on the other counts on remand. Accordingly his appeal in Case No. 91 CR 40056-JLF (our No. 92-2652) is dismissed.

Kopshever's Fraud Sentences

Kopshever attacks each respect in which the district judge elevated his sights for sentencing purposes above those that had been jointly sponsored by the parties in the plea agreement and that were initially concurred in by the probation officer. Because certain of those adjustments were clearly in error, while the other matters either (1) will not recur on resentencing (such as Kopshever's claim of having been given insufficient advance notice of adverse facts, in violation of Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991)) or (2) may be perceived differently by another judge on resentencing, we will limit our discussion to two errors identified by Kopshever's counsel.

1. Selection of the Applicable Guidelines

Until November 1, 1991 Guideline Sec. 2F1.1(b)(6) provided:

If the offense substantially jeopardized the safety and soundness of a financial institution, increase by 4 levels. If the resulting offense level is less than level 24, increase to level 24.

By an amendment effective November 1, 1991 the Sentencing Commission expanded that four-level increase to apply not only where the offense "substantially jeopardized" a financial institution (now Guideline Sec. 2F1.1(b)(6)(A)) but also where the offense "affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense" (Guideline Sec. 2F1.1(b)(6)(B), the "added subparagraph").

In this instance Kopshever's frauds clearly "affected" financial institutions, and his frauds certainly topped the $1 million mark. Even though his counsel contends otherwise (in part by arguing that the defrauded institutions must be looked at individually rather than collectively), his objections carry no persuasiveness. But nothing in the record suggests that the more demanding test of "substantially jeopardiz[ing] the safety and...