U.S. v. Schlueter, 10–2426.
| Citation | 634 F.3d 965 |
| Decision Date | 10 March 2011 |
| Docket Number | No. 10–2426.,10–2426. |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Scott SCHLUETER, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Jennifer Hudson (argued), Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff–Appellee.
William S. Margulis (argued), Attorney, Margulis & Grant, St. Louis, MO, for Defendant–Appellant.Before KANNE, EVANS, and WILLIAMS, Circuit Judges.EVANS, Circuit Judge.
For almost three years Scott Schlueter, a registered broker-dealer, engaged in a fraudulent investment scheme and bilked several people who trusted him out of more than $300,000. He pleaded guilty to securities fraud, see 15 U.S.C. § 77q, mail fraud, see 18 U.S.C. § 1341, and wire fraud, id. § 1343. The district judge concluded that the agreed guideline range of 33 to 41 months failed to adequately account for the harm Schlueter's fraud caused his victims (or the egregiousness of his conduct) so he sentenced him to serve a term of 48 months. Schlueter, who asked for a sentence of 24 months, appeals arguing that his sentence is unreasonable.
The targets of Schlueter's fraud were people he knew as friends. He admits that rather than investing money on their behalf in what he claimed were no-risk investments, he instead pocketed the proceeds, only occasionally paying out interest. For example, Schlueter solicited funds from his friends, the Watersons, both of whom are of retirement age (it's unclear whether they were actually retired), and convinced them to invest close to $280,000 in a nonexistent fund. Mr. Waterson, who at the time was 75 years old, testified at sentencing that Schlueter put an additional $300,000 into annuities that Mr. Waterson can't reach without penalty until he is 98, contrary to Mr. Waterson's direction that the money be accessible within a year. The Watersons and Schlueter were friends for ten years, shared meals together, and spent time with each other's families, yet, Mr. Waterson said, when he confronted Schlueter about the funds, Schlueter treated him “like [he] was a dog.” Mr. Waterson told the district judge that because of Schlueter's grift, Mr. Waterson had to return to work and couldn't help his son save his home from foreclosure. Additionally, he and his wife explained in their victim-impact statement, they could not make improvements to their own house, buy a coveted motor home, or go shopping.
Schlueter also admitted scamming a woman named Staley out of about $40,000. Schlueter, a friend of Mrs. Staley's late husband, convinced her to invest the money she received from her husband's life insurance policy in a fictional real estate deal. Schlueter promised her $750 every two months in interest payments; she received only three payments after she parted with the $40,000. As a result of Schlueter's fraud, she had to take on a second job. The probation officer, in the presentence report, noted that Schlueter conned another couple, also friends, out of $23,000, soliciting them to invest in nonexistent, no-risk funds.
The probation officer calculated Schlueter's base offense level at 7, see U.S.S.G. § 2B1.1(a)(1), added 12 levels because the total loss was more than $200,000 but less than $400,000, see id. § 2B1.1(b)(1)(G), added 4 levels because Schlueter was a registered broker-dealer who had violated the securities laws, see id. § 2B1.1(b)(17)(A), and deducted 3 levels for acceptance of responsibility, see id. § 3E1.1(a)–(b). Schlueter had no criminal history, so the guideline range was 33 to 41 months' imprisonment. Schlueter did not object to any of the information in the presentence report, and the government didn't ask for any additional adjustments.
Schlueter argued for a 24–month sentence because of his difficult childhood (the judge noted that he had a “lousy relationship with his parents and family that continues to this day”) and, among other things, because he suffered from alcoholism. But the government advocated a sentence within the guideline range because Schlueter defrauded vulnerable victims, including an elderly couple on the verge of retirement and a new widow.
As we said, the district judge settled on a sentence of 48 months. The judge determined that the guideline range did not adequately account for the severe impact that Schlueter's fraud had on the victims and the abject nature of the offense. The judge was also concerned that Mr. Waterson, at 75 years old, would have to return to work. And had it not been for Schlueter's deception, the judge continued, Mr. Waterson would have been able to retire, remodel his home, buy a motor home, take his wife shopping, and help his son prevent foreclosure. The judge further observed that the guidelines didn't account for Schlueter's treatment of Mr. Waterson when he approached him about the missing money; Schlueter “kicked him to the curb.” The judge was also troubled by the fact that Schlueter swindled a widow out of her insurance money. Despite Schlueter's “lousy life,” the judge thought these facts warranted a sentence above the guideline range. A lesser sentence, the judge stated, would not provide just punishment, deter him or others from committing similar conduct, or promote respect for the law.
Schlueter argues that the judge committed procedural error by failing to adequately explain the reason for imposing the above-range sentence. The procedural error, he argues, was that the judge incorrectly stated that the guidelines failed to take into account circumstances that are, in fact, provided for in the guidelines. Specifically, Schlueter points to the adjustment allowed for vulnerable victims, see U.S.S.G. § 3A1.1(b), and departures for extreme psychological injury, see id. § 5K2.3, property damage or loss, see id. § 5K2.5, and extreme conduct, see id. § 5K2.8. ( Id.)
A judge commits a procedural error at sentencing if he calculates the guidelines incorrectly, treats the guidelines as...
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