United States v. Janet Hallahan , 744 F.3d 497 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-3748, 12-3750, 12-3781, and 12-3787
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JANET HALLAHAN and
NELSON G. HALLAHAN,
Defendants-Appellants.
Appeals from the United States District Court for the
Central District of Illinois.
Nos. 12-CR-10054 and 99-CR-10045 — Joe Billy McDade, Judge.
ARGUED JANUARY 10, 2014 — DECIDED MARCH 7, 2014
Before FLAUM and EASTERBROOK, Circuit Judges, and
GRIESBACH, District Judge.*
GRIESBACH, District Judge. Defendants-Appellants Janet and
Nelson Hallahan engaged in a prolonged fraud that bilked
investors out of more than $1,000,000. They pled guilty, as part
*
Of the Eastern District of Wisconsin, sitting by designation.
2 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
of plea agreements, to two counts of conspiracy. Rather than
face sentencing for their crimes, the defendants chose to flee
the district. They remained on the run for twelve years. After
they were finally arrested, both pled guilty without a plea
agreement to the additional crime of failing to appear for
sentencing. At their long-delayed sentencing in 2012, the
district court imposed above-guideline sentences of 270
months on Nelson Hallahan and 195 months on Janet
Hallahan. They now challenge their sentences on a variety of
grounds, despite having waived their rights to appeal in their
original plea agreements. We affirm.
I. BACKGROUND
On January 6, 2000, the defendants pled guilty to conspir-
acy to commit mail and bank fraud, in violation of 18 U.S.C.
§§ 371, 1341, and 1344, and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h), as part of plea
agreements. The charges stemmed from their actions begin-
ning in 1993 or earlier until 1999, during which time they
convinced individuals to provide loans ostensibly for Janet
Hallahan’s tanning business. As a result of these acts, they
were charged with sixteen counts of mail fraud, nine counts of
money laundering, and three counts of bank fraud, in addition
to the conspiracy charges. In exchange for their guilty pleas on
the conspiracy counts, the government agreed to move to
dismiss the other charges, not bring additional charges related
to the offenses, recommend a downward adjustment for
acceptance of responsibility, and recommend a sentence at the
low end of the applicable guideline range. The plea agreements
also included appeal waivers:
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 3
[T]he defendant knowingly waives the right to
appeal any sentence within the maximum provided
in the statute of conviction (or the manner in which
that sentence was determined) on the grounds set
forth in Title 18, United States Code, Section 3742 or
on any ground whatever, in exchange for the con-
cessions made by the United States in this plea
agreement.
After a full and complete plea colloquy in accordance with
Rule 11 of the Federal Rules of Criminal Procedure, the district
court accepted both pleas, finding that Janet and Nelson
Hallahan were competent to enter their pleas and did so
knowingly and voluntarily.
The defendants were scheduled to be sentenced on May 4,
2000, but they did not appear. Instead, the defendants chose to
flee. The probation office discovered the defendants had
absconded on January 18, 2000—just twelve days after they
pled guilty. For the next twelve years, they eluded justice while
living in Missouri and Arizona. They were arrested on May 12,
2012, in Arizona, where they were residing under false names.
Upon their return, Janet and Nelson Hallahan were charged
with, and pled guilty to, willfully failing to appear for sentenc-
ing, in violation of 18 U.S.C. § 3146(a)(1).
On November 28, 2012, the district court finally sentenced
Janet and Nelson Hallahan on the conspiracy and failure to
appear counts. Both Janet and Nelson Hallahan argued that the
court should use the version of the United States Sentencing
Guidelines Manual (U.S.S.G. or Guidelines) that was in effect
at the time of the offenses, rather than the version in effect at
4 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
the time of the sentencing, to avoid a violation of the Ex Post
Facto Clause. The district court disagreed and calculated the
advisory sentencing range using the 2012 Guidelines which
were in effect at the time of sentencing, consistent with this
Court’s decision in United States v. Demaree, 459 F.3d 791 (7th
Cir. 2006). Based on the 2012 Guidelines, the district court
calculated the advisory range to be 210 to 262 months for
Nelson Hallahan and 135 to 168 months for Janet Hallahan.
Under the 1998 Guidelines, which were in effect at the time of
the offenses, the advisory range would have been 121 to 151
months for Nelson Hallahan and 97 to 121 months for Janet
Hallahan.
After hearing arguments from all of the parties, including
the government’s request for the “longest of sentences,” the
district court imposed a sentence of 270 months on Nelson
Hallahan and 195 months on Janet Hallahan based on its
consideration of the sentencing factors under 18 U.S.C.
§ 3553(a). These sentences represented upward variances from
the sentencing range under the 2012 Guidelines. Nelson and
Janet Hallahan filed timely appeals. We consolidated the
appeals on our own motion for purposes of briefing and
disposition.
II. ANALYSIS
On June 10, 2013, while these appeals were pending, the
Supreme Court decided Peugh v. United States, ___ U.S. ___, 133
S. Ct. 2072, 2078 (2013), in which it abrogated this Court’s
decision in Demaree and held that the Ex Post Facto Clause is
violated “when a defendant is sentenced under Guidelines
promulgated after he committed his criminal acts and the new
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 5
version provides a higher applicable Guidelines sentencing
range than the version in place at the time of the offense.” In
light of the Supreme Court’s decision in Peugh, the defendants
contend that the district court violated the Ex Post Facto Clause
when it used the 2012 Guidelines in determining their sen-
tences. They also argue that the district court incorrectly
calculated the base offense level for the conspiracy to commit
money laundering count, regardless of which version of the
Guidelines applies, and that the district court failed to follow
the procedure prescribed by the Guidelines for determining
their sentences for the failure to appear counts. Janet Hallahan
separately presents two additional challenges. First, she argues
the district court erred when it failed to rule on her motion to
withdraw from the appeal waiver provision of the plea
agreement. Second, she contends that the district court’s 195-
month sentence was substantively unreasonable.
In response, the government has forcefully argued that the
challenges related to the two conspiracy counts to which
Nelson and Janet Hallahan pled guilty in 2000 are barred by
the appeal waivers in their plea agreements. According to the
government, even if the district court did err in applying the
2012 Guidelines or in calculating the base offense level for the
money laundering offense, Nelson and Janet Hallahan bar-
gained away their rights to appeal as part of valid and enforce-
able plea agreements. On the merits, the government argues
that there is no ex post facto violation because, under the one-
book rule, the latter version of the Guidelines applies when the
earlier offense is grouped with a subsequent crime. The
government concedes, however, that the base offense level was
miscalculated on the money laundering count, but contends
6 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
that the district court correctly applied the Guidelines for the
failure to appear count. As for Janet Hallahan’s separate
challenges, the government argues that the district court
provided ample reasons to support her sentence and the
district court’s failure to rule on her motion to withdraw from
the plea agreement is not reversible error because it has no
chance of success on remand.
A. Appeal Waivers
The parties have focused much of their attention on the
enforceability of the appeal waivers contained in the plea
agreements the defendants signed in 2000 when they pled
guilty to the conspiracy counts. In response to the govern-
ment’s contention that they waived their rights to challenge the
guideline calculation for the conspiracy offenses as part of their
plea agreements, the defendants have argued that the appeal
waivers are not enforceable. Regardless of whether they are
enforceable, however, we conclude that the appeal waivers do
not bar our review of the district court’s guideline calculation
on the conspiracy counts. This is because the district court used
the same guideline to determine the defendants’ sentences for
the additional offense of failure to appear. As we explain
below, all three offenses were, in Guidelines terminology,
grouped, and therefore any error in the guideline calculation
for the conspiracy counts necessarily affected the sentence
imposed by the district court for the failure to appear count.
Since the defendants did not waive their right to appeal when
they entered their guilty pleas to that offense, they are entitled
to review of the guideline calculations that were used as a
starting point in the sentencing determination.
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 7
The issue of whether the waivers are enforceable is never-
theless relevant at least as to Janet, however, because she also
challenges her sentence for the conspiracy offenses on substan-
tive grounds. If her appeal waiver is enforceable, then her
challenge to her sentence on those counts is barred. We
therefore must determine whether the government is entitled
to enforce Janet’s waiver of her right to appeal. Before deciding
that issue we turn first to Janet’s claim that the district court
committed plain error when it failed to rule on her motion to
withdraw from the plea agreement. We decide that issue first,
for if she should ultimately prevail on her motion, the appeal
waiver does not apply to her in any event.
1. Failure to Rule on Motion to Withdraw from the Plea
Agreement
After Janet and Nelson were arrested in Arizona, but before
they were sentenced, Janet filed a motion to withdraw her
guilty plea to the conspiracy counts and, alternatively, to
withdraw from her plea agreement. Rule 11 requires “a fair
and just reason” for withdrawing a guilty plea before sentenc-
ing. Fed. R. Crim. P. 11(d)(2)(B). Janet asserted that there were
three fair and just reasons for the district court to permit her to
withdraw her plea: (1) she was innocent of the charges; (2) her
attorney provided ineffective assistance; and (3) she was
coerced and intimidated into accepting the plea agreement by
Nelson.
In support of her alternative request that she be allowed to
withdraw from her plea agreement, Janet alleged that the
reasons were “obvious” in that “[a]ll the benefits Ms. Hallahan
sought from a plea agreement are no longer binding on the
8 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
Government or this court.” She noted that the government
would no longer be required to make recommendations for a
three-level reduction to her offense severity score for accep-
tance of responsibility or for a sentence at the low end of the
applicable guideline range. Janet also argued that the govern-
ment would no longer be bound to dismiss the remaining
counts in the indictment or refrain from filing additional
charges based on the same course of conduct. Whereas the
benefits she derived from the plea agreement had been lost,
Janet noted that her appeal waiver remained. She explained
that she wished to preserve her appeal rights to seek review of
the district court’s order and sentence in the event the court
did not allow her to withdraw her plea or sentenced her under
the current version of the Guidelines.
Relying on United States v. Darnell, 716 F.2d 479 (7th Cir.
1983), the district court summarily denied Janet’s motion to
withdraw her plea on the ground of laches. In Darnell, the
defendant sought to withdraw his plea some twenty years after
his conviction. Though the defendant alleged “a repugnant tale
of violations of his constitutional and statutory rights,” this
Court found it unnecessary to determine the truth of the
allegations and affirmed the district court’s denial of the
motion on the ground that “Darnell has not exercised reason-
able diligence in ascertaining and presenting the asserted
grounds for relief.” Id. at 479–80. The Court identified two facts
that justified the district court’s conclusion that the motion was
barred: (1) the government’s ability to meet successfully the
allegations of the motion or to present a case against the
defendant if he was granted a new trial would be greatly
diminished by the passage of time; and (2) Darnell had not
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 9
even attempted to demonstrate that the twenty-year delay was
excusable. Id. at 480–81.
In denying Janet’s motion to withdraw her plea in this case,
the district court likewise concluded that the government
would suffer significant prejudice as a result of the twelve-year
delay in the event Janet’s motion was granted. The case was
complex, and the events underlying the offenses dated back
more than twenty-five years. The law enforcement officers who
investigated the case had all retired, and it would be difficult,
if not impossible, to present testimony from many of the
victims and witnesses, who were already quite elderly at the
time the crimes were committed. The district court also found
that Janet had failed to provide a legitimate excuse for her
delay in bringing her motion. Indeed, the court found that the
twelve-year delay resulted solely and directly from her
unlawful decision to flee the court’s jurisdiction in an effort to
avoid being held accountable for her crimes. Based on these
facts alone, the district court concluded that Janet’s motion to
withdraw her plea was barred under the doctrine of laches.
Janet does not challenge the district court’s denial of her
motion to withdraw her plea to the conspiracy counts. Instead,
she contends that the court erred in failing to address her
motion to withdraw from the plea agreement. She argues that
her motion to withdraw her plea was separate and distinct
from her motion to withdraw from the plea agreement and that
it was error for the district court not to address it separately.
Because of that error, Janet contends that her case should be
remanded.
10 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
We find no error in the district court’s handling of Janet’s
motion to withdraw from the plea agreement that would
warrant a remand. Although a motion to withdraw a plea is
distinct from a motion to withdraw from a plea agreement, we
have observed that “the plea agreement and the plea are
‘bound up together,’” and thus held that the same standard of
“a fair and just reason” for withdrawal applies. United States v.
Standiford, 148 F.3d 864, 868 (7th Cir. 1998) (quoting United
States v. Hyde, 520 U.S. 670, 677 (1997)). The district court
properly rejected Janet’s proffered reasons for withdrawing her
plea, and she failed to offer any fair and just reason for a
different ruling on her motion to withdraw from the plea
agreement.
In essence, Janet sought to be relieved of the provision of
her plea agreement in which she waived her right to appeal
because she no longer thought it was in her interest. She
realized that because she had absconded, the government was
no longer bound to recommend a reduction in her offense
severity score for acceptance of responsibility or that she
receive a sentence at the low end of the applicable guideline
range. She also recognized that if it so chose, the government
would be free to pursue the remaining charges in the indict-
ment and even issue additional charges based on the same
course of conduct. Since the government was no longer bound
by the plea agreement, she argued it was only fair that she be
released from it as well.
But the government did not seek to be relieved of its
obligations to dismiss the remaining charges or refrain from
issuing additional charges based on the same course of conduct
that led to the initial charges. As we explain below, the fact that
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 11
the government was relieved of its obligation to recommend a
more lenient sentence was a consequence of Janet’s own breach
of the plea agreement. It does not constitute a breach of the
agreement by the government; nor does it provide a ground
for Janet to withdraw from the agreement. A plea agreement
is a contract, and absent some breach by the government, a
defendant cannot repudiate the contract simply because she no
longer thinks it is in her interest. United States v. Ellison, 798
F.2d 1102, 1104 (7th Cir. 1986) (“Defendant pled guilty pursu-
ant to his promise to the government and, absent some breach
by the government, now cannot attempt to repudiate the
contract unless he does so pursuant to Rule 32(d).”).
While it is perhaps true that the district court should have
explicitly addressed Janet’s alternative request, its failure to do
so does not warrant a remand. We have consistently declined
to remand cases for further proceedings when the outcome of
such proceedings is clear and remand would be futile. See, e.g.,
United States v. Stephens, 514 F.3d 703, 713 (7th Cir. 2008)
(“Thus, remand would be futile as there is only one plausible
conclusion based on the entire record—that there was no
Batson violation.”); United States v. Purchess, 107 F.3d 1261, 1269
(7th Cir. 1997) (“Normally, we would remand … . However, in
this case, a careful review of the record reveals that the denial
of the acceptance of responsibility reduction is well grounded
in a permissible factor—the district court’s finding that
Purchess was not remorseful but was simply trying to obtain
a lower sentence. Therefore, remand would be futile, and we
affirm the district court’s denial of the reduction.”). Here,
Janet’s alternative motion could only have been denied since
she offered no “fair and just reason” to withdraw from her plea
12 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
agreement. Sandiford, 148 F.3d at 868. We thus turn to the effect
of the plea agreements, in particular, the enforceability of the
appeal waivers.
2. Enforceability of Appeal Waivers
In their plea agreements, the defendants waived the right
to appeal “any sentence within the maximum provided in the
statute of conviction (or the manner in which that sentence was
determined) on the grounds set forth in [18 U.S.C. §] 3742 or on
any ground whatever, in exchange for the concessions made by
the United States in this plea agreement.” Thus, if the appellate
waiver is enforceable, then the defendants’ arguments regard-
ing the violation of the Ex Post Facto Clause and the incorrect
calculation of the base offense level, as they apply to the
conspiracy offenses alone, are barred.
We have consistently stated that “[a] defendant may waive
his appeal rights as part of a plea agreement, provided the
waiver is clear and unambiguous.” United States v. Jones, 381
F.3d 615, 619 (7th Cir. 2004) (citing United States v. Mason, 343
F.3d 893, 893–94 (7th Cir. 2003); United States v. Nave, 302 F.3d
719, 720 (7th Cir. 2002); United States v. Woolley, 123 F.3d 627,
631–32 (7th Cir. 1997)). An “appellate waiver ‘stands and falls
with the rest of the bargain.’” United States v. Sakellarion, 649
F.3d 634, 639 (7th Cir. 2011) (quoting United States v. Whitlow,
287 F.3d 638, 640 (7th Cir. 2002)). A knowing and voluntary
appeal waiver precludes appellate review. Jones, 381 F.3d at
619.
The defendants do not argue that their appeal waivers are
invalid because their pleas or plea agreements in 2000 were
made unknowingly or involuntarily. Instead, they contend that
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 13
their appeal waivers are unenforceable because the govern-
ment breached their plea agreements by failing to recommend
sentences at the low end of the applicable guideline range.
Because the government breached its obligations under the
plea agreements, the defendants argue that it cannot enforce
the appeal waivers against them.
The government, on the other hand, insists that it did not
breach the plea agreements. Instead, the government contends
that it was relieved of its obligation to recommend a sentence
at the low end of the applicable guideline range by the defen-
dants’ own breach of the plea agreements. More specifically,
the government argues that its more lenient sentencing
recommendation was conditioned on the defendants appearing
for sentencing and not absconding. Because they left the state
and avoided sentencing for twelve years, the government
argues that its obligation to make the favorable sentencing
recommendation called for by their plea agreements was
excused. It thus follows, the government contends, that it did
not breach the agreements and the appeal waivers should be
enforced.
As already noted, a plea agreement is a form of contract.
United States v. Diaz-Jimenez, 622 F.3d 692, 694 (7th Cir. 2010).
Consequently, we have often remarked that “[d]isputes over
plea agreements are usefully viewed through the lens of
contract law.” E.g., United States v. Bownes, 405 F.3d 634, 636
(7th Cir. 2005) (collecting cases). A breach of a plea agreement
by the prosecutor is actionable, and the general rule is that
where such a breach has been shown, the defendant is entitled
to either specific performance or rescission, i.e., withdrawal of
the plea. Santobello v. New York, 404 U.S. 257, 263 (1971); United
14 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
States v. Grimm, 170 F.3d 760, 765 (7th Cir. 1999). Of course, a
plea agreement also creates obligations for the defendant.
In this case, the defendants waived their rights to a trial and
entered pleas of guilty to the two conspiracy counts pursuant
to their plea agreements. Yet, these were not their only obliga-
tions. An implied but obvious term of any plea agreement is
that the defendant show up for sentencing and not flee the
jurisdiction. United States v. Munoz, 718 F.3d 726, 729 (7th Cir.
2013). The defendants breached this obligation when they fled
the district and avoided the punishment for their crimes for
twelve years. The defendants’ flight constituted a material
breach, depriving them of the ability to hold the government
to its promise to recommend the low end of the applicable
guideline range. Id. at 730 (“No defendant could reasonably
expect that he could abscond for five years and still hold the
government to its promises under the plea agreement.”); see
also United States v. Delacruz, 144 F.3d 492, 495 (7th Cir. 1998)
(“Since defendant failed to appear for sentencing and contin-
ued his criminal conduct, the government was no longer
obligated to recommend a sentence of 24 months at his
sentencing hearing.”). In the language of contract law, the
government’s obligation to recommend a low end of the
guideline sentence was excused by the defendants’ breach of
their obligation to show up for sentencing and not flee the
jurisdiction. See Puckett v. United States, 556 U.S. 129, 140 n.2
(2009) (citing 39 WILLISTON ON CONTRACTS § 39:3 (4th ed.
2009)).
The defendants contend, however, that if the government
is relieved of its obligation to recommend a lesser sentence
then they are likewise relieved of the appeal waivers. They cite
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 15
Munoz in support of their argument, noting that in that case the
government treated the plea agreement as rescinded after the
defendant absconded and therefore did not attempt to enforce
the appeal waiver in the agreement. 718 F.3d at 730–31. We
acknowledged in Munoz that we would face a more difficult
issue if the government had sought to enforce the appeal
waiver. Id. Here the government does seek to enforce the
waiver, and so the issue is now before us. We again find the
answer in well established principles of contract law.
“[A] classic rule of contract law, is that a party should be
prevented from benefitting from its own breach.” Assaf v.
Trinity Medical Center, 696 F.3d 681, 686 (7th Cir. 2012) (citing
23 WILLISTON § 63:8). Thus, the fact that a party has breached
a portion of a contract does not automatically result in the
discharge of that party’s remaining obligations. Otherwise, a
party would have the power to escape an unwanted contrac-
tual obligation simply by breaching another provision of the
contract under which it arises. 13 WILLISTON § 39.1. Such a rule
would seriously undermine the law of contracts. Id. Instead,
the rule is that where one party commits a material breach, the
non-breaching party may elect to terminate the entire agree-
ment or seek to enforce the remainder of the contract. See 23
WILLISTON § 63:8 (“When a contract is breached, the injured
party is not required to repudiate the contract in order to
preserve its right to sue the other for breach of the contract;
after a breach, the injured party may elect to continue the
agreement and claim damages from the defaulting party for his
nonperformance.”) (citing RESTATEMENT (SECOND) OF CON-
TRACTS § 246). Here, the government has elected to enforce the
remaining provisions of the plea agreements, including the
16 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
appeal waivers. We see no reason why it should not be allowed
to do so.
As we have already explained, the government did not
breach the defendants’ plea agreements by failing to recom-
mend sentences at the low end of the applicable guideline
ranges because the obligation to make such a recommendation
was excused by the defendants’ flight to avoid sentencing and
the twelve-year reprieve they gained as a result. Given the fact
that the defendants not only failed to accept responsibility for
their crimes, but entirely escaped responsibility for twelve
years, a recommendation for leniency would have made no
sense on its face. The law does not require the government to
make a nonsensical recommendation.
The defendants also contend, however, that the govern-
ment breached their plea agreements in two other ways. They
note that the government also stated in their agreements that
it “will fully apprise the District Court and the United States
Probation Office of the nature, scope and extent of defendant’s
conduct regarding the charges against him [and her], and
related matters, including matters in aggravation and mitiga-
tion relevant to the issue of sentencing.” Plea Agreements ¶ 14.
Additionally, the government agreed “to bring no additional
criminal charges in the Central District of Illinois against the
defendant[s] relating to or arising from the offenses charged in
this indictment, except for any crime of violence which might
have been committed with regard to this or other matters and
which is not known to the government at this time.” Id. ¶ 17.
The defendants contend that the government failed to perform
both of these obligations as well. It did not apprise the district
court of matters in mitigation, and it charged them with failing
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 17
to appear at their sentencing, a charge “relating to” the
conspiracy charges in the indictment. Having failed to perform
its own obligations under the plea agreements, the defendants
contend, the government is not entitled to enforcement of the
appeal waivers.
We reject the defendants’ argument that the government
breached the plea agreements by failing to apprise the district
court of matters in mitigation and by bringing additional
charges relating to the offenses charged in the fraud indict-
ment. As to mitigating factors, the defendants contend that the
government never mentioned Janet’s lesser role in the offense
or Nelson’s health issues. They also contend that the govern-
ment failed to acknowledge that neither had a criminal record
prior to the conspiracy and that they had lived “a simple,
lawful life while on the lam.” But there was no need for the
government to advise the sentencing judge of Janet’s role,
Nelson’s health, or that neither had a prior criminal record.
These facts were apparent from the pre-sentence report, and
the government never disputed them. As for their claim that
their lifestyle while on the lam was simple and law abiding, we
simply note that fleeing the district to avoid sentencing and
then living and working under false identities so as to avoid
apprehension for twelve years are not mitigating factors. The
government did not violate the defendants’ plea agreements by
failing to say otherwise.
We also reject the defendants’ argument that the charges for
failure to appear at sentencing violated the government’s
obligation not to bring additional charges “relating to or
arising from the offenses charged in the indictment.” Under
their reading of the plea agreements, the defendants would
18 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
have been immune from prosecution for any offense they
could have thereafter committed in the Central District of
Illinois as long as they could tie it somehow to their previous
fraud. A bank robbery to fund their get-away, for example, or
even a retaliatory murder of a government witness (only
crimes of violence already committed are excluded) would be
“related to” the fraud offenses in the same sense as their failure
to appear. Such a reading of the agreements would be both
absurd and contrary to public policy.
“Plea agreements are contracts, and their content and
meaning are determined according to ordinary contract
principles.” United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir.
1992). This means that when a plea agreement is unambiguous
on its face, this Court generally interprets the agreement
according to its plain meaning. United States v. Monroe, 580 F.3d
552, 556 (7th Cir. 2009). “When the language of an agreement
is ambiguous, however, the essence of the particular agreement
and the Government’s conduct relating to its obligations in that
case are determinative.” Id. (internal quotations omitted).
“Although the government must fulfill any express or implied
promise made in exchange for a guilty plea, the parties’ rights
under the plea agreement are limited to those matters upon
which they actually agreed.” United States v. Williams, 102 F.3d
923, 927 (7th Cir. 1996) (citing United States v. Jimenez, 992 F.2d
131, 134 (7th Cir. 1993)). Moreover, “[w]hen interpreting
such agreements, . . . we must bear in mind the special
public-interest concerns that arise in the plea agreement
context.” Monroe, 580 F.3d at 556. Finally, courts eschew
interpretations of contract provisions that make them unrea-
sonable or illegal. 11 WILLISTON § 32:11; Aronson v. K. Arakelian,
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 19
Inc., 154 F.2d 231, 233 (7th Cir. 1946) (“[A] contract will not be
presumed to have imposed an absurd or impossible condition
on one of the parties, but will be interpreted as the parties must
be supposed to have understood the conditions at the time.”).
Applying these principles here, we conclude that the
government’s promise to bring no additional charges against
the defendants was limited to charges that were based on the
same course of conduct as the conspiracy charges. Neither
party believed the prohibition applied to future crimes, and
while it certainly could have been more clearly written, a
reasonable reading of the entire provision supports such an
interpretation. The fact that the exclusion for crimes of violence
is limited to past crimes suggests that the general prohibition
was so limited as well. More importantly, not limiting the
prohibition to past crimes would make it absurd and probably
illegal. It therefore follows that the government’s decision to
charge the defendants with failure to appear did not breach
their plea agreements.
As a final argument against enforcement of their appeal
waivers, the defendants argue that the government misled the
sentencing court by representing that even if the appeal
waivers remained enforceable, they would be able to benefit
from a favorable ruling in Peugh, which was then pending
before the Supreme Court. That is not the law. See United States
v. McGraw, 571 F.3d 624, 631 (7th Cir. 2009) (“We have consis-
tently rejected arguments that an appeal waiver is invalid
because the defendant did not anticipate subsequent legal
developments.”). The defendants contend that the govern-
ment’s misstatement of the law convinced the district court
that they would be able to obtain relief if Peugh were decided
20 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
in their favor. Because of its misrepresentation of law, they
argue that the government is estopped from now enforcing the
waivers.
“Judicial estoppel is an equitable concept that prevents
parties from playing ‘fast and loose’ with the courts by
prevailing twice on opposing theories.” In re Airadigm Commu-
nications, Inc., 616 F.3d 642, 661 (7th Cir. 2010) (quoting Butler
v. Vill. of Round Lake Police Dep’t., 585 F.3d 1020, 1022 (7th Cir.
2009)). Although there is no formula for judicial estoppel, the
Supreme Court has identified at least three pertinent factors for
courts to examine: “(1) whether the party’s later position was
‘clearly inconsistent’ with its earlier position; (2) whether the
party against whom estoppel is asserted in a later proceeding
has succeeded in persuading the court in the earlier proceed-
ing; and (3) whether the party ‘seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.’” Id. (quoting
New Hampshire v. Maine, 532 U.S. 742, 750–01 (2001). The
doctrine does not apply here.
The question of whether the defendants would be able to
appeal in the event the Supreme Court abrogated Demaree was
raised by the district judge in the context of a hastily scheduled
telephone hearing on Nelson Hallahan’s motion to continue
the sentencing hearing or withdraw from the appeal waiver
provision of the plea agreement. After the government stated
it was “not willing to carve out a portion of the plea agree-
ment,” the court asked the government if it was its understand-
ing that the appeal waiver would preclude the defendants
from seeking relief if Peugh was decided in their favor. One of
the two prosecutors on the line responded:
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 21
If the Supreme Court makes a change in the law, if
there is a change in the law, and in that instance, I
think – I’m not sure but I think that there would be an
avenue available to him if I’m not mistaken. In other
words, if there was a mistake in law in the sentence,
then I think that would come under the words of a
miscarriage of justice if I’m not mistaken; and that he
could petition the Seventh Circuit to bring an action
in the district court. I’m not certain about that but I
think that there is an avenue available for him to do
that if he were sentenced in violation of law.
Based on what the prosecutor said and his own under-
standing of the law, the judge stated he thought there was “a
possibility” that the defendants would be able to seek relief. It
was not on that basis, however, that the court denied Nelson’s
motion. As the district court explained at sentencing two days
later, it denied the motion because it did not believe it had the
authority to strike certain portions of the plea agreements the
parties had negotiated over one party’s objection.
The government’s tentative response to the court’s ques-
tion, offered with explicit cautions of its uncertainty, is not the
kind of statement that can support a claim of judicial estoppel.
Even if it could, it did not form the basis of the court’s ruling
against the defendants. The government did not derive an
unfair advantage from its response, nor did the defendants
incur an unfair detriment. The government is thus not
estopped from asserting the appeal waivers.
We therefore conclude that the defendants’ appeal waivers
are enforceable. But as we said before we began down this
22 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
road, the waivers do not bar entirely the defendants’ claims
that the district court erred in calculating the guidelines on the
conspiracy counts. The defendants did not waive their right to
appeal the sentences imposed for their failure to appear at
sentencing, and to the extent that the district court’s guideline
calculation on the conspiracy counts was used to determine the
guideline sentence for their failure to appear, their argument
that the district court erred in its guideline calculation is
properly before us. It is to that issue that we now turn.
B. Calculation of Sentence Guideline for Failure to
Appear
The district court sentenced each of the defendants on three
separate counts. The underlying offenses of conspiracy to
commit mail and bank fraud, and conspiracy to commit money
laundering carried maximum terms of 20 years and 5 years,
respectively. 18 U.S.C. §§ 1341, 1956(h), and 371. The offense of
failure to appear for sentencing on a felony punishable by
more than 15 years in prison is itself punishable by a term of
imprisonment of not more than ten years. 18 U.S.C.
§ 3146(b)(A)(i). In addition, a term of imprisonment imposed
for an offense of failure to appear must be consecutive to the
sentence of imprisonment for any other offense. 18 U.S.C.
§ 3146(b)(2).
The Guidelines prescribe that when a defendant is to be
sentenced at the same time for more than one offense, closely
related counts are grouped and a single offense level is
determined. U.S.S.G. § 3D1.1(a). Two or more counts are
considered closely related if they involve substantially the
same harm. Id. § 3D1.2. Counts are deemed to involve substan-
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 23
tially the same harm when they “involve the same victim and
two or more acts or transactions connected by a common
criminal objective or constituting part of a common scheme or
plan.” Id. § 3D1.2(b). Counts also involve substantially the
same harm when “one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other adjust-
ment to, the guideline applicable to another of the counts.” Id.
§ 3D1.2(c). For offenses that are grouped together, the count
that has the highest offense level is used to determine the
proper guideline range for the entire group. Id. § 3D1.3(a).
In this case, the failure to appear count was properly
grouped with the two conspiracy counts because the conduct
it embodied was treated as an adjustment to the offense level
applicable to the underlying counts. Failure to appear before
sentencing is treated as an obstruction of the underlying
offense under § 3C1.1, and the offense level is increased by two
levels. Id. § 2J1.6 cmt. n.3. When a defendant is sentenced both
for the underlying offense and failure to appear, the sentencing
court is to determine the total punishment and then impose a
portion of the total as the sentence for the failure to appear
count that is to run consecutive to the underlying offense or
offenses. Id. By way of illustration, the Application Note offers
the following example:
[I]f the combined applicable guideline range for
both counts is 30–37 months and the court deter-
mines that a “total punishment” of 36 months is
appropriate, a sentence of 30 months for the under-
lying offense plus a consecutive six months’ sen-
tence for the failure to appear count would satisfy
these requirements.
24 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
Id.
It is clear from the above example that any error in calculat-
ing the combined guideline range will have a direct impact on
the court’s sentencing determination for failure to appear. This
follows because the combined guideline range is the starting
point for determining the total sentence, a portion of which
must be imposed for the failure to appear. It may be that the
district court would have imposed the same sentence for the
failure to appear counts even if it started with lower combined
guideline ranges. But because we cannot know whether it
would have done so, we cannot say that an error in calculating
the combined guideline is harmless. See United States v. Love,
680 F.3d 994, 998 (7th Cir. 2012) (“Such an error is not harmless
because it is impossible to know whether the district court
would have imposed the same sentence had it not committed
this procedural error.”). Notwithstanding their appeal waivers
on the conspiracy counts, the defendants thus retain their right
to challenge the combined guideline calculation used in the
determination of their sentences for failing to appear.
The count with the highest offense level among the three on
which the defendants were sentenced was conspiracy to
commit money laundering. It was the offense level for that
count that was therefore used to determine the guideline
sentence range for the entire group, including the failure to
appear. The defendants contend that the district court erred in
calculating the offense level for the conspiracy to commit
money laundering count in two respects: (1) the court used the
wrong Guidelines; and (2) the court applied the wrong base
level. As a result, they contend that the court used the wrong
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 25
sentence range in determining their sentences for failure to
appear. We will address each in turn.
1. Wrong Guidelines
The defendants first argue based on Peugh that, under the
Ex Post Facto Clause, the district court was required to use the
version of the Guidelines that was in effect at the time they
committed those crimes. As noted above, under the Guidelines
in effect at the time of the offenses, the advisory range would
have been 121 to 151 months for Nelson and 97 to 121 months
for Janet. Under the 2012 version of the Guidelines, the district
court determined that their advisory sentence ranges were 210
to 262 months for Nelson and 135 to 168 months for Janet.
Because the district court’s reliance on the more recent version
of the Guidelines resulted in a higher combined offense level
that was also used to determine their sentences on the failure
to appear counts, the defendants contend that at least the
sentence on that count must be vacated. And because the
sentences the district court imposed for the failure to appear
counts were determined in relation to the sentences it imposed
on the conspiracy counts, they argue that the entire sentence
should be vacated so that the district court can fashion a
complete and coherent sentencing package. See United States v.
Martenson, 178 F.3d 457, 462 (7th Cir. 1999) (“When one or
more components of a defendant’s sentence are held to be
illegal, trial judges are permitted to reevaluate the sentencing
package in light of the changed circumstances and resentence
the defendant to effectuate the original sentencing intent.”)
(internal quotation marks omitted).
26 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
In response, the government argues that, notwithstanding
Peugh, the district court’s use of the newer version of the
Guidelines did not violate the Ex Post Facto Clause. The
government’s argument rests on the Guidelines’ “one-book
rule.” That rule states that “[i]f the defendant is convicted of
two offenses, the first committed before, and the second after,
a revised edition of the Guidelines Manual became effective,
the revised edition of the Guidelines Manual is to be applied to
both offenses.” U.S.S.G. § 1B1.11(b)(3). Essentially the same
rule was contained in the 1998 Guidelines. The crime of failure
to appear, the government notes, is a continuing offense. See
United States v. McIntosh, 702 F.3d 381, 387 (7th Cir. 2012)
(“Each day that he knowingly and wilfully continued to evade
the service of his prison sentence violated the statute.”). Thus,
the defendants continued to commit that offense until they
were apprehended in May 2012, and under the one-book rule,
the latter version of the Guidelines should apply. The govern-
ment points out that in United States v. Vivit, this Court rejected
an ex post facto challenge to the application of the one-book
rule where the defendant was sentenced for multiple offenses,
one of which occurred after a higher guideline became effec-
tive. There the Court held that “[t]he grouping rules, enacted
in 1987, provide warning to criminals that completing another
criminal offense similar to one committed previously places
them in peril of sentencing under a revised version of the
Guidelines.” 214 F.3d 908, 919 (7th Cir. 2000). It likewise
follows here, the government contends, that application of the
newer version of the Guidelines in this case did not violate the
defendants’ rights under the Ex Post Facto Clause.
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 27
The defendants argue in reply that the government waived
its argument under the one-book rule because it failed to
present it in the district court. But of course, there was no need
to make the argument in the district court because under then-
existing circuit precedent, use of the Guidelines in effect at the
time of sentencing was not considered a violation of the Ex
Post Facto Clause. It was only after the Supreme Court ruled
otherwise in Peugh that the issue arose. A party does not waive
an argument it does not make in the trial court which, under
then-existing precedent, it had no reason to offer.
The defendants also argue that McIntosh involved the crime
of failure to surrender for service of a sentence, as opposed to
the crime of failure to appear for sentencing and, further, that
it did not involve a claimed ex post facto violation. We fail to
see any principled reason why a failure to appear for sentenc-
ing would be any less a continuing offense than a failure to
surrender for service of a sentence, and the defendants have
offered none. Indeed, other courts that have considered the
issue have likewise concluded that failure to appear for
sentencing is a continuing offense. See, e.g., United States v.
Green, 305 F.3d 422, 432 (6th Cir. 2002); United States v. Gray,
876 F.2d 1411 (9th Cir. 1989); United States v. Lopez, 961 F.2d
1058 (2d Cir. 1992). Thus, in United States v. Alcarez Camacho the
Guidelines were found to apply to a defendant who failed to
appear for his trial before the effective date of the Guidelines,
but was apprehended thereafter. 340 F.3d 794 (9th Cir. 2003).
The fact that McIntosh did not involve a claimed ex post
facto violation is likewise irrelevant. It is the reasoning of Vivit
that demonstrates why application of the one-book rule in this
case does not result in an ex post facto violation. Vivit rested on
28 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
the Supreme Court’s observation that “[c]ritical to relief under
the Ex Post Facto Clause is not an individual’s right to less
punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond
what was prescribed when the crime was consummated.” 214
F.3d at 919 (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)).
Vivit held that the grouping and one-book rules provided
sufficient notice to the defendant in that case that his earlier
offenses would be sentenced under the revised guidelines if he
continued to commit related offenses. 214 F.3d at 919. The
same conclusion was reached in the overwhelming majority of
circuits that considered the issue prior to Peugh and by the only
other circuit that has considered the issue since. United States
v. Pagan-Ferrer, 736 F.3d 573, 597–99 (1st Cir. 2013) (collecting
cases).
We see no reason why a different result should follow here.
We therefore reject the defendants’ argument that the district
court erred in failing to use the 1998 version of the Guidelines
to calculate the offense level for the conspiracy counts. While
it appears, based on the date of their arrest, that the 2011
version of the Guidelines should have been used, the defen-
dants have offered no argument that their sentence ranges
would have been lower. We therefore find no error in using the
later version.
2. Wrong Base Level
Wholly apart from which version of the Guidelines applies,
the defendants argue further that the district court erred in
determining the base offense level for the money laundering
offense. They claim that the error occurred when the district
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 29
court adopted the offense level recommended by the probation
officer in the pre-sentence report. The offense level recom-
mended by the probation officer was one level too high, they
contend, because the agent erroneously set the base level for
the money laundering offense at seven as opposed to six. After
adding in the other applicable adjustments, the probation
officer recommended an offense level of 33 for Janet and 37 for
Nelson. Neither party objected, and the district court therefore
adopted the probation officer’s recommendations for its
guideline calculation. Reducing the offense level by one would
have resulted in a lower sentence range of 121 to 151 months
for Janet and 188 to 235 months for Nelson. The defendants
contend that this error alone amounts to plain error and
requires that their sentences be vacated.
The government concedes that the district court plainly
erred in calculating the offense level on the conspiracy counts,
but argues that relief is unavailable since the defendants
waived their right to appeal their sentences on the conspiracy
counts. As we have already pointed out, however, because the
failure to appear offenses were grouped with the conspiracy
counts, any error in the offense level calculation for those
offenses would infect the court’s sentence determination for
the failure to appear. We therefore do not consider their rights
to appeal the issue waived.
This Court generally “review[s] the district court’s applica-
tion of the Sentencing Guidelines de novo and its factual
findings for clear error.” United States v. Jumah, 599 F.3d 799,
811 (7th Cir. 2010). But where, as here, a sentencing argument
is raised for the first time on appeal, this Court’s review is for
plain error. See Fed. R. Crim. P. 52(b) (“A plain error that
30 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
affects substantial rights may be considered even though it was
not brought to the court’s attention.”). Plain error is a rigorous
standard. United States v. Orr, 622 F.3d 864, 868 (7th Cir. 2010).
Under this rule, we may, in our discretion “correct an error not
raised at trial only where the appellant demonstrates that (1)
there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appel-
lant’s substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings; and (4)
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560
U.S. 258, 262 (2010) (internal quotation marks and brackets
omitted). We find no plain error here.
Indeed, as to the calculation of the guideline sentence, we
find no error at all, notwithstanding the government’s conces-
sion that the district court erred in adopting the recommended
offense level in the pre-sentence report. The defendants
contend that the sentence range recommended by the proba-
tion officer was in error because she used a base level of seven
instead of six to calculate the total offense level for the money
laundering offense. We disagree. Under § 2S1.1 of the Guide-
lines, the base offense level for money laundering is:
The offense level for the underlying offense from
which the laundered funds were derived, if (A) the
defendant committed the underlying offense (or
would be accountable for the underlying offense
under subsection (a)(1)(A) of § 1B1.3 (Relevant
Conduct)); and (B) the offense level for that offense
can be determined.
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 31
U.S.S.G. § 2S1.1(a)(1). The underlying offense from which the
laundered funds were obtained here was the conspiracy to
commit mail and bank fraud, which the defendants also
committed, and the offense level for that offense could be
determined. Thus, the base level for the money laundering
offense was the offense level for the fraud conspiracy.
The base level for a conspiracy is taken from the guideline
for the substantive offense. Id. § 2X1.1(a). The guideline for
mail and bank fraud is § 2B1.1, which states that the base level
is seven “if (A) the defendant was convicted of an offense
referenced to this guideline; and (B) that offense of conviction
has a statutory maximum term of imprisonment of 20 years or
more.” Id. § 2B1.1(a)(1). Mail and bank fraud are referenced to
§ 2B1.1 in the statutory index to the Guidelines, and each has
a statutory maximum term of imprisonment of 20 years or
more. It therefore follows that seven was the proper base level
for that offense.
The only other adjustment that the defendants challenge is
a two-level upward adjustment to Nelson’s offense level, but
as the government points out, that was for violation of a 1995
State administrative order to which only Nelson was subject.
This adjustment, to which the defendants offer no reply, plus
the remaining adjustments, over which there is no dispute,
result in the offense levels used by the district court to calculate
the defendants’ guideline sentences. We therefore conclude
that the district court did not err in calculating the guideline
range.
32 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
C. Imposition of Sentence for Failure to Appear
The defendants also argue that the district court failed to
properly follow the Guidelines procedure for imposing the
sentences on the failure to appear counts. Rather than deter-
mine the total sentence and then apportion it between the
underlying conspiracy offenses and the offense of failure to
appear as the Guidelines Manual directs, they contend that the
district court simply imposed a low end of the guideline
sentence for the conspiracy offenses and then imposed an
additional five years for the failure to appear. They also note
that the probation officer who prepared the pre-sentence
reports failed to even include a separate guideline calculation
for the failure to appear count in his report. A proper calcula-
tion would have shown that the guideline range for that
offense alone was between 12 and 18 months. Although they
concede that the guideline range for the money laundering
conspiracy provided the total sentence range for all three
offenses, the defendants contend that by failing to include the
individual calculation for the failure to appear, the probation
officer failed to provide the district court with essential
guidance as to that offense. This, they contend, also constitutes
plain error that requires their sentences be vacated.
We reject the defendants’ arguments that the district court
failed to properly apply § 2J1.6 and that the failure to calculate
a separate sentencing range for the failure to appear offense
amounts to plain error. Although the pre-sentence report may
not have demonstrated a clear understanding of the failure to
appear guideline, the district court certainly did. In its sentenc-
ing comments, the court explained that it recognized that the
advisory guideline ranges for the defendants reflected an
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 33
adjustment for their failure to appear and that the range was
intended to encompass the total punishment the defendants
were to receive for all of the offenses. The court specifically
acknowledged that it was to apportion part of the total
sentence it decided to impose on the underlying offenses and
part on the offense of failure to appear. The court also recog-
nized, however, that it could impose a sentence above the
guideline range if it concluded such sentence was appropriate
upon consideration of the factors set forth in 18 U.S.C. § 3553.
Because of the aggravating circumstances of the crimes and, in
particular, the fact that “for 12 years these hundreds of trusting
people were denied justice,” the court concluded that a
variance was warranted. The court therefore sentenced Janet
to 195 months and Nelson to 270 months, each representing
five years above the low end of their respective guidelines.
The defendants contend, however, that the district court
failed to adequately explain how it arrived at the total sen-
tences it imposed. They note that the court failed to tie the 60-
month sentence it imposed on the failure to appear counts to
the guideline range that would have applied for that offense
alone. They also contend that the court showed no recognition
that the calculated guideline range for all three offenses
already included a two-level enhancement for their failure to
appear. These errors, the defendants argue, were prejudicial
and seriously affect the fairness, integrity and public reputa-
tion of the judicial proceedings.
We disagree. First, we note it is simply not true that the
district court failed to recognize that the guideline range it
calculated for the entire group of offenses included a two-level
enhancement for their failure to appear. As noted above, the
34 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
court gave explicit recognition of this fact in its sentencing
comments. It is true that the court did not consider a separate
guideline range for the failure to appear counts alone. But as
the defendants acknowledge, the guideline for that offense by
itself played no role in determining the applicable guideline
range in this case because their failure to appear offenses were
grouped with the conspiracy counts. True, we have said that
when a court imposes an above guideline sentence for an
additional crime that is already factored into the guideline
range “it is wise to see how much incremental punishment the
Sentencing Commission recommends.” United States v.
Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009). But we have never
said that a district court’s failure to consider a guideline range
that does not directly apply constitutes reversible error by
itself. In Kirkpatrick, the district court imposed a sentence that
was more than double the top of the guideline range for
possession of a firearm by a felon based on the fact that the
defendant had lied to investigating officers. Id. at 415. Given
the amount of the variance, we held that the sentencing court
had a greater duty to tie its sentence to the Guidelines. Here,
the variance was far less, only 16% over the top end of the
guideline range for Janet and even less for Nelson. The
aggravating factors highlighted by the district court adequately
justified the upward adjustments it imposed.
In its sentencing comments, the district court noted that the
victims of the defendants’ fraud were neither wealthy nor
sophisticated, and many were elderly. The money they lost
was their life savings that they intended as a loan to someone
they regarded as a friend, not an investment with attendant
risk. But the truly aggravating factor that warranted the
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 35
upward variance, the court explained, was the fact that the
defendants had avoided the consequences of their crimes for
twelve years. Not only did they fail to accept responsibility,
they escaped responsibility. The court noted that “for 12 years
these hundreds of trusting people were denied justice.” As the
court observed, the defendants not only stole their victims’
money, but then stole their right to a sense of justice for the
wrong they had suffered, particularly as to those victims who
died before the defendants were apprehended.
We also note that by absconding, the defendants “flouted
the judicial process and interfered with the efficient operation
of the courts.” United States v. Morgan, 254 F.3d 424, 427 (2d
Cir. 2001). As we explained in United States v. Elliott where the
defendant had been a fugitive for almost 15 years, “the law’s
deterrent and retributive effect can be maintained, in the event
of prolonged fugitive status, only by substantial incremental
penalties.” 467 F.3d 688, 692 (7th Cir. 2006). There, we noted,
“[e]ven imposing the statutory maximum of 10 years for
Elliott’s failure-to-report offense would not bring the law’s
deterrent power in 2004 up to what it would have been had
Elliott reported as required in 1989.” Id. Given the number of
years the defendants were able avoid the prison sentences they
knew they had earned, the failure to appear guideline range,
by itself, would have provided little guidance to the sentencing
court in arriving at a just sentence. The district court’s failure
to consider it under these circumstances does not amount to
plain error.
36 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
D. Substantive Reasonableness
Finally, we turn to Janet Hallahan’s contention that the
district court’s above-guideline 195-month sentence was
substantively unreasonable. “We ‘will uphold an
above-guidelines sentence so long as the district court offered
an adequate statement of its reasons, consistent with 18 U.S.C.
§ 3553(a), for imposing such a sentence.’ There is no presump-
tion that a sentence outside the guidelines’ range is unreason-
able.” United States v. Aldridge, 642 F.3d 537, 544 (7th Cir. 2011)
(quoting United States v. McIntyre, 531 F.3d 481, 483 (7th Cir.
2008)). It is also not enough that we “might reasonably have
concluded that a different sentence was appropriate … .” Gall
v. United States, 552 U.S. 38, 51 (2007). “Because the district
court has greater familiarity with the case and the individual
defendant and therefore an institutional advantage over an
appellate court in making sentencing determinations, we must
defer, absent an abuse of discretion, to its ruling.” Id. at 790.
“An above-guidelines sentence is more likely to be reasonable
if it is based on factors sufficiently particularized to the
individual circumstances of the case rather than factors
common to offenders with like crimes.” United States v. Jackson,
547 F.3d 786, 792–93 (7th Cir. 2008) (internal quotation marks
omitted).
First, to the extent that Janet Hallahan’s challenge to the
substantive reasonableness of her sentence relates to the
conspiracy and underlying fraud, the appellate waiver acts as
a bar to her arguments. Second, as to the permissible argu-
ments regarding her life as a fugitive, which she describes as
free of crime and without wealth, as well as other mitigating
facts like her age, her argument that the district court did not
Nos. 12-3748, 12-3750, 12-3781, and 12-3787 37
consider these facts is inconsistent with the record. Specifically,
the district explained that while Janet and Nelson Hallahan
“have suffered also from the absence of family connections,
living a hunted life, that’s of their choosing. They have chose
[sic] to live this way. They could have stopped it at any
moment, initially by not leaving or by returning at any time
during the past 12 years.” The court also emphasized that
“[Janet] chose to turn her back on the family overtures and to
stay on the run.” The district court also considered the age of
Janet Hallahan, 55 at the time, noting “some sympathy for
sentencing anyone in the winter of their life to prison for long
terms when they should be at home with their grandchildren
and family.” In addition, the district court considered the
testimony of the victims, the nature of the offense, her violation
of the trusting relationships with the victims, the length of the
flight from justice, and the effect that flight had on the victims.
We are convinced that the district court considered the
factors in § 3553(a) and adequately articulated its decision to
impose an above-guideline sentence. Janet Hallahan obviously
disagrees with the district court’s sentence, and would place
the emphasis on other facts, but she has not demonstrated that
the district court failed to justify the magnitude of the variance.
We find no abuse of discretion in sentencing her to 195 months
of imprisonment. Cf. United States v. Stinefast, 724 F.3d 925,
932–33 (7th Cir. 2013) (upholding 216-month sentence where
the guideline range was 121 to 151 months); United States v.
Taylor, 701 F.3d 1166, 1174–75 (7th Cir. 2012) (upholding 480-
month sentence where the guideline range was 262 to 327
months); United States v. Abebe, 651 F.3d 653, 656 (7th Cir. 2011)
(upholding 300-month sentence where the guideline range was
38 Nos. 12-3748, 12-3750, 12-3781, and 12-3787
84 to 105 months); United States v. Ellis, 622 F.3d 784, 800 (7th
Cir. 2010) (upholding 90-month sentence where the guideline
range was 46 to 57 months); United States v. McKinney, 543 F.3d
911, 912–14 (7th Cir. 2008) (upholding 293-month sentence
where the guideline range was 188 to 235 months).
III. CONCLUSION
Accordingly, and for the reasons set forth above, the
judgments of the district court are AFFIRMED.