United States v. Fechete

497 F. App'x 626
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 4, 2012
DocketNo. 12-1600
StatusPublished

This text of 497 F. App'x 626 (United States v. Fechete) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fechete, 497 F. App'x 626 (7th Cir. 2012).

Opinion

ORDER

In 2006, Adrian Fechete was arrested in connection with a large-scale internet fraud scheme and charged with six counts of wire fraud in violation of 18 U.S.C. § 1343, four counts of receiving stolen property that had been transported interstate in -violation of 18 U.S.C. § 2315, one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. A jury found Fechete guilty of all charges, and the district court subsequently sentenced him to 324 months of imprisonment. On appeal, we affirmed his conviction for money laundering, vacated his conviction for aggravated identity theft, and vacated and remanded his sentence for further proceedings. United States v. Aslan, 644 F.3d 526 (7th Cir.2011).

On remand, the district court resen-tenced Fechete to 262 months of imprisonment. Fechete wishes to appeal his new sentence but his lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), contending that Fechete has no non-frivolous issues to raise on appeal. Fechete responded to our invitation to reply to his attorney’s motion. See Circuit Rule 51(b). We confine our review of the record to the potential issues raised in the attorney’s facially-adequate brief and Fechete’s Rule 51(b) response. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002); United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997).

Fechete’s attorney presents several potential issues for review: (1) whether the district court committed a procedural error in resentencing Fechete; (2) whether the district court failed to conduct a proper analysis under 18 U.S.C. § 3553(a); (3) whether the revised sentence was substantially unreasonable; (4) whether the district court considered matters outside the scope of this court’s limited remand; and (5) whether the issues that Fechete raised with appellate counsel have any merit. Fechete himself filed an additional brief in which he claimed that the court erred by (1) failing to consider the disparity between his sentence and the average sentence imposed by courts on defendants nationally for similar crimes; (2) giving inadequate reasons on the record for imposing the sentence; (3) failing to ask Fechete and his lawyer whether they had read the presentence report (“PSR”);2 and (4) refusing to acknowledge Fechete’s post-conviction rehabilitation, or to credit his acceptance of responsibility and expression of remorse for his crime.

We begin with the issues presented by counsel. Our review of sentencing decisions is limited to whether they are reasonable, applying the abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We first must ensure that the district court committed no significant procedural error. Gall, 552 U.S. at 51, 128 S.Ct. 586. Procedural errors include, among other things, failing to calculate or incorrectly calculating the guidelines range, treating the guidelines as mandatory, failing to consider the § 3553(a) factors, or failing to explain adequately the chosen sentence, including an explanation [629]*629for any deviation from the guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586. If the district court’s decision is procedurally sound, we then consider the substantive reasonableness of the sentence using the abuse of discretion standard. Gall, 552 U.S. at 51, 128 S.Ct. 586. We review the district court’s interpretation of the sentencing guidelines de novo. United States v. Veazey, 491 F.3d 700, 706 (7th Cir.2007); United States v. Chamness, 435 F.3d 724, 726 (7th Cir.2006). Sentences that are within the properly calculated guidelines range are entitled to a rebutta-ble presumption of reasonableness. Rita v. United States, 551 U.S. 338, 341-49, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Veazey, 491 F.3d at 706; United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045 (7th Cir.2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).

Counsel is correct that our remand was limited to correcting four errors we identified in the initial appeal: (1) mathematical errors in computing the losses attributable to Fechete on account of the conduct of two co-defendants, Schneider and Vega; (2) the inclusion in the sentence of the vacated conviction for aggravated identity theft; (3) the erroneous application of a section 2Bl.l(b)(14) enhancement for possession of a dangerous weapon in connection with the offense; and (4) the lack of adequate findings as to jointly undertaken activity among Fechete and two other co-defendants, Moloman and Salem. On reviewing the transcript, we agree with counsel that the court addressed every one of those errors and did not exceed the scope of the remand in calculating the new sentence.

Specifically, the court corrected the amount of the loss caused by Schneider, Vega and Fechete to $894,000, a loss suffered by 227 victims of the three co-schemers.3 The court did not include in the sentence the vacated identity theft count. The court also adjusted the sentence to remove the effect of the dangerous weapon enhancement. The court then made adequate factual findings as to the scope of the criminal activity undertaken jointly with Moloman and Salem before attributing an additional $192,000 loss and an additional 101 victims to Fechete. The total loss was calculated to be $1,086,000, taken from 328 victims. After correcting the four errors from the first appeal, the court then correctly calculated the guidelines sentence, applying adjustments that were unchallenged (or affirmed) in the first appeal, and arriving at a total offense level of 37 and a Criminal History Category of I. The resulting sentencing range was 210 to 262 months.

The court then applied the section 3553(a) factors. In particular, after reviewing letters from the victims and listening to a statement from Fechete as well as the arguments of counsel, the court found that a sentence on the high end of the guidelines was necessary for both general and specific deterrence.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Aslan
644 F.3d 526 (Seventh Circuit, 2011)
United States v. Eunice Husband
312 F.3d 247 (Seventh Circuit, 2002)
United States v. Loumard Harris
394 F.3d 543 (Seventh Circuit, 2005)
United States v. Robert Mykytiuk
415 F.3d 606 (Seventh Circuit, 2005)
United States v. Carlos Rodriguez-Alvarez
425 F.3d 1041 (Seventh Circuit, 2005)
United States v. John Chamness
435 F.3d 724 (Seventh Circuit, 2006)
United States v. William H. Veazey
491 F.3d 700 (Seventh Circuit, 2007)
United States v. Rondale Chapman
694 F.3d 908 (Seventh Circuit, 2012)
United States v. Haskins
511 F.3d 688 (Seventh Circuit, 2007)

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Bluebook (online)
497 F. App'x 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fechete-ca7-2012.