United States v. Oliver

873 F.3d 601, 2017 WL 4639476, 2017 U.S. App. LEXIS 20255
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 17, 2017
DocketNo. 16-3611
StatusPublished
Cited by74 cases

This text of 873 F.3d 601 (United States v. Oliver) 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. Oliver, 873 F.3d 601, 2017 WL 4639476, 2017 U.S. App. LEXIS 20255 (7th Cir. 2017).

Opinion

FLAUM, Circuit Judge.

Travis Oliver pled guilty to wire fraud for defrauding investors. The district court sentenced Oliver to fifty-one months in prison followed by three years of supervised release. Oliver challenges that sentence on appeal. He argues that the district court erred by failing to consider unwarranted sentencing disparities, relying on inaccurate information, not calculating the Guidelines range for supervision, and imposing a two-level leadership enhancement. For the reasons stated below, we affirm.

I. Background

Between 2009 and 2012, Travis Oliver and his co-defendant Todd Smith1 defrauded investors in Electus Asset Holdings, LLC (“Electus”). Oliver, the sole managing member of Electus, recruited Smith to help solicit investors in the Rockford, Illinois area. At Oliver’s direction, Smith mailed flyers to potential investors inviting them to attend retirement planning seminars. At these seminars, Smith told investors that their funds would be invested in Electus, that they could withdraw their funds at any time, that their initial investments would be returned within a year, and that their investments would yield a guaranteed monthly return.

In reality, the investors’ money was not invested in Electus. Instead, Oliver used the money to pay personal expenses, including commissions for himself and Smith, and to make interest and principal payments to other Electus investors. He placed the remaining funds in risky, non-guaranteed investments, including Cash Flow Financial (“CFF”), a large Ponzi scheme operated by Alan Watson.

To conceal the fraud, Oliver mailed monthly statements and Internal Revenue Service 1099-INT forms to Electus investors, which falsely claimed that the investments had earned interest. When investors asked to have their investments returned, Oliver and Smith told them that their checks would be issued soon, that their checks had been lost in the mail, or that their money had been invested in a company whose assets were frozen pursuant to an investigation by the Federal Trade Commission. As a result of this scheme, Electus’s investors lost a total of $983,654.

On February 11, 2014, a grand jury indicted Oliver on fifteen counts of wire fraud in violation of 18 U.S.C. § 1343 and eight counts of mail fraud in violation of 18 U.S.C. § 1341. On May 31, 2016, Oliver pled guilty to one count of wire fraud. The judge accepted the guilty plea and ordered the probation office to prepare a presen-tence investigation report (“PSR”).

In the PSR, the probation office determined that Oliver’s total offense level was, twenty-four. Starting with a base offense level of seven, U.S.S.G. § 2B1.1, the probation office imposed the following enhancements: a fourteen-level enhancement because the total loss was greater than $550,000, id. § 2Bl.l(b)(l)(H); a two-level enhancement because the offense involved ten or more victims, id. § 2Bl.l(b)(2)(A)(i); a two-level enhancement because Oliver abused his position of trust as Electus’s sole managing member to commit the offense, id. § 3B1.3; and a two-level enhancement because Oliver acted in a leadership capacity in carrying out the fraudulent scheme, id. § 3Bl.l(c). The probation office also gave Oliver a three-level reduction for his timely acceptance of responsibility. Id, § 3El,l(a)-(b). With a total offense level of twenty-four and a criminal history category of I, the Sentencing Guidelines suggested a prison term of fifty-one to sixty-three months and a supervised release term of one to three years. In his sentencing memorandum, Oliver stated that he did not object to the factual determinations or Guidelines calculations in the PSR.2

On- September 19, 2016, the district court held a sentencing hearing. At the beginning of the hearing, Oliver reiterated to,the court that he did not object to the PSR’s factual findings or Guidelines calculations, Accordingly, the court adopted the PSR in those respects.

The district court proceeded to hear from several of Oliver’s victims. Two victims testified that Oliver caused them severe financial and personal hardship. In addition, the PSR included a statement from a third victim who stated that she had “problems with [her] nerves” and “cried for days.” She added: “My husband had heart trouble and this didn’t help. He has passed since then.”

Next, the court asked the government whether other criminal prosecutions arose from the related Ponzi schemes into which Oliver had invested money. The government informed the court that Watson had been convicted of wire fraud in the Eastern District 'of Virginia, sentenced tó twelve years in prison, and ordered to pay $37 million in restitution.'

After hearing from both parties, the .district judge told Oliyer:

I just want you to know at the outset that the only redemption—and you’re never going to pay these people back, whether you’re working or whether I sentence you to the Bureau of Prisons and you come out. These persons, many of them are going to be dead, and you’ve taken some years off their lives just by what your conduct has done and the tragedy and emotional effect it’s had on these victims.

The court then considered Oliver’s mitigation arguments and addressed each of the statutory sentencing factors under 18 U.S.C. § 3553(a). The district court ultimately imposed a prison term of fifty-one months followed by three years of supervised release, both of which fell within the recommended Guidelines range. With respect to supervised release, the district judge noted that he was “imposing] the maximum of three years because of all the reasons [he] just stated” and to “try to get restitution over that period of time.” The court ordered Oliver to pay $983,654 in restitution to his victims and declined to order restitution jointly and severally “because there’s been no other person found to be responsible.”

After announcing Oliver’s sentence and the conditions of supervised release, the district' judge asked defense counsel whether there was “any argument of yours as to the sentence that I haven’t addressed.” Defense counsel responded, “Not at this time, Judge. The special conditions I think the court has covered," and in terms of covering the terms of the court’s sentence, T think the court has covered that appropriately.”

The district court issued its written judgment on September 20, 2016. This appeal followed.

II. Discussion

On appeal, Oliver argues that the district court proeedurally erred by failing to address an unwarranted sentencing disparity, making unsupported factual determinations, and failing to calculate the Guidelines range for his term of supervised release. He also contends that the district court plainly erred by imposing a two-level leadership enhancement.

A. Standard of Review

Generally, we review the district court’s sentencing procedures de novo and its factual findings for clear error. See United States v.

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Cite This Page — Counsel Stack

Bluebook (online)
873 F.3d 601, 2017 WL 4639476, 2017 U.S. App. LEXIS 20255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oliver-ca7-2017.