United States v. John T. Burns, III , 843 F.3d 679 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2824
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN T. BURNS, III,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 394 — Charles P. Kocoras, Judge.
____________________
ARGUED SEPTEMBER 13, 2016 — DECIDED DECEMBER 12, 2016
____________________
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. John Burns made fraudulent misrep-
resentations when soliciting investments for his employer,
USA Retirement Services (“USARMS”). Burns told investors
that he had experience managing investments and that he had
personally invested in USARMS’s promissory notes. His
statements were false. Moreover, without Burns’s knowledge,
the investment opportunity was fraudulent. USARMS’s own-
ers were operating a Ponzi scheme.
2 No. 15-2824
With USARMS’s owners out of the picture for various rea-
sons, the government filed a superseding indictment against
Burns. The government alleged that Burns committed fraud
by making material misrepresentations to investors. A jury
convicted Burns on two counts of wire fraud and three counts
of mail fraud. Despite not alleging that Burns knew of or par-
ticipated in the Ponzi scheme, the government sought to hold
Burns accountable for the entire $3.3 million the investors that
he solicited lost as a result of the Ponzi scheme. The district
court enhanced Burns’s sentence, ordered restitution, and or-
dered forfeiture based on the victims’ $3.3 million total loss.
On appeal, Burns argues that there was insufficient evi-
dence to convict him of making material misrepresentations.
Burns also challenges the sentencing enhancement and the
restitution order on grounds that the district court did not de-
termine that he proximately caused the victims’ loss. Finally,
Burns argues that the forfeiture order was improper because
it was based on the victims’ loss and not on his gain. Because
there was sufficient evidence to convict, we affirm Burns’s
conviction. But because the district court erred in calculating
the sentence, restitution order, and forfeiture order, we re-
mand for resentencing.
I. BACKGROUND
At USARMS, Burns’s primary job was to provide estate-
planning services to clients. In addition to those services,
Burns would offer clients an opportunity to invest in promis-
sory notes that USARMS sold. The notes were allegedly
backed by Turkish bonds. USARMS’s owners, Francois
Durmaz and Robert Pribilski, claimed to have a connection in
the Turkish government that allowed them to purchase the
bonds at a below-market rate. USARMS guaranteed an 8.5
No. 15-2824 3
percent rate of return and told investors that returns could be
as high as 14 percent.
As the high guaranteed rate of return might have hinted,
the investment opportunity was too good to be true. USARMS
never purchased Turkish bonds. Instead, Durmaz and Pribil-
ski used the investments for their personal use and to pay ear-
lier investors “returns” on their investment—indicia of a clas-
sic Ponzi scheme.
The government’s original criminal complaint charged
only Durmaz with wire fraud in connection with the Ponzi
scheme. Perhaps aware that the scam had run its course and
was about to collapse, Durmaz fled the country before the
original complaint was filed. Roughly two years later, the
government filed an indictment against Durmaz, Pribilski,
and Burns, charging them with various counts of wire and
mail fraud. Pribilski pled guilty to the charges. But before he
could be sentenced, he died.
With only Burns left alive and in the United States, the
government filed a superseding indictment. The government
alleged that Burns had induced certain victims to invest in
USARMS by falsely telling them that he had experience man-
aging investments and that he and his family had invested in
the Turkish bonds. The superseding indictment made no ref-
erence to the Ponzi scheme. In its response to Burns’s motion
in limine, the government stated that the “Defendant is not al-
leged to have knowingly participated in the Ponzi scheme”
and that the lies about his credentials and his personal invest-
ment are “the only crimes that defendant is alleged to have
committed.” (R. 104 at 4.)
4 No. 15-2824
At trial, the government called six of the victims Burns had
solicited investments from. Five victims testified that they had
relied on Burns’s statements that he and his family had in-
vested in the Turkish bonds. A sixth victim testified that Burns
said that he had experience handling investments and that he
personally allocated Turkish bonds to investor accounts.
At the close of evidence, the jury convicted Burns on two
counts of wire fraud and three counts of mail fraud. The dis-
trict court sentenced Burns to eighty-four months in prison
and three years’ supervised release. When calculating the sen-
tence, the district court applied an 18-level enhancement to
account for the roughly $3.3 million Burns’s victims lost in
their investment with USARMS. The district court also en-
tered a restitution order and forfeiture order, both for $3.3
million. Burns filed a motion for judgment of acquittal and a
motion for a new trial. The district court denied the motions,
and this appeal followed.
II. ANALYSIS
On appeal, Burns challenges his conviction, his sentence,
the restitution order, and the forfeiture order. Burns argues
that his statements about his financial background and his
personal investment in USARMS were puffery and thus could
not have been material misrepresentations. Regarding the
length of his sentence and the restitution order, Burns con-
tends that the district court did not establish that he proxi-
mately caused the victims’ loss. Accordingly, Burns claims
that the court improperly enhanced his sentence and ordered
him to pay more in restitution than the loss that he caused.
Finally, Burns challenges the forfeiture order because the
court ordered forfeiture based on the victims’ $3.3 million loss
No. 15-2824 5
instead of the amount that he gained from his unlawful con-
duct.
A. Sufficiency of the Evidence
We review de novo the denial of a motion for the judgment
of acquittal. United States v. Peterson, 823 F.3d 1113, 1120 (7th
Cir. 2016). In reality, however, we apply the same analysis that
we use when reviewing for the sufficiency of the evidence. Id.The burden for proving insufficiency of the evidence is
“heavy” and “nearly insurmountable.” United States v. Des-
sart, 823 F.3d 395, 403 (7th Cir. 2016). Burns must prove “that
even after viewing the evidence in the light most favorable to
the prosecution, no rational trier of fact could have found him
guilty beyond a reasonable doubt.” Id. (internal quotation
marks omitted); see also United States v. Clarke, 801 F.3d 824,
827 (7th Cir. 2015).
A statement is material if it has the ability to influence a
person’s decision. United States v. Seidling, 737 F.3d 1155, 1160
(7th Cir. 2013) (citing Neder v. United States, 527 U.S. 1, 16
(1999)). Burns’s argument that his statements were puffery,
akin to a used-car salesman’s sales pitch, is unavailing. “Puff-
ing” is “[t]he expression of an exaggerated opinion—as op-
posed to a factual misrepresentation—with the intent to sell a
good or service.” Black’s Law Dictionary 1269 (8th ed. 2004). We
have said that puffery is nonactionable because no reasonable
person would rely on such “empty superlatives.” F.T.C. v. Tru-
deau, 579 F.3d 754, 765 (7th Cir. 2009).
Whereas puffery involves ambiguous and vague prom-
ises, Burns's comments were factual and specific. He told in-
vestors that he and his family had invested in the bonds and
were reaping the rewards of having done so. He told investors
6 No. 15-2824
that he had a history of managing investments. He told inves-
tors that he had quit a reputable bank job to work at USARMS.
All of these were factual misrepresentations, not exaggerated
opinions. All of these were a far cry from promises of a "good"
investment, "can't miss" opportunity, or other equivocal sales
pitches buyers hear every day and are expected to discern and
discount. United States v. Coffman, 94 F.3d 330, 334 (7th Cir.
1996). Accordingly, the jury’s verdict will be affirmed.
B. Sentencing, Restitution, and Forfeiture
The government argues that Burns waived or at least for-
feited his arguments about his sentence, the restitution order,
and the forfeiture order. Consequently, we must first deter-
mine whether he preserved, forfeited, or waived his objection
to the calculations.
1. Waiver
To preserve an issue for appeal, an appellant must make a
“timely and specific objection” at trial in order to notify the
court and the opposing party of the potential error and the
ground for objection. United States v. Ousley, 698 F.3d 972, 975
(7th Cir. 2012).
Burns failed to preserve his objections in this case. When
discussing the restitution and forfeiture orders at sentencing,
Burns asked only if he alone would be responsible for the $3.3
million or if the awards would be apportioned (presumably
among USARMS’s owners and himself). The apportionment
argument does not articulate a specific objection to how resti-
tution and forfeiture were calculated.
Nor did Burns specifically object to the loss calculation
used to enhance his sentence. At sentencing, Burns argued
that he should be responsible for 10 percent of the victims’
No. 15-2824 7
$3.3 million loss. But that argument was based on the fact that
$3.3 million was only 10 percent of the entire loss that the
Ponzi scheme caused. Although Burns intimated that he was
not responsible alone for the loss, he never articulated the
proximate-cause objection that he makes here.
Because Burns did not properly preserve his objection
during sentencing, we must determine whether Burns waived
or merely forfeited his objection. “Waiver is the intentional re-
linquishment of a known right” and precludes judicial review
by extinguishing the error. United States v. Butler, 777 F.3d 382,
387 (7th Cir. 2015) (citing United States v. Olano, 507 U.S. 725,
733 (1993)). Forfeiture, however, “is the failure to make the
timely assertion of a right … by accident or neglect.” Id. (cita-
tion and internal quotation marks omitted). Courts have only
a limited power to correct forfeited errors. Id. at 386 (citing
Olano, 507 U.S. at 731).
The difference between forfeiture and waiver is hard to de-
lineate. United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009).
At one point, the case law in this circuit suggested that a de-
fendant’s failure to specifically object at sentencing estab-
lished waiver in the strict sense of the term. See United States
v. Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir. 2002); United
States v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001). We have
since declined to read those early cases as creating a bright-
line rule that every objection not raised at sentencing is
waived. Instead, we have held that “the important concern is
whether a defendant chose, as a matter of strategy, not to pre-
sent an argument.” Garcia, 580 F.3d at 541; see also United States
v. Brodie, 507 F.3d 527, 531 (7th Cir. 2007); United States v.
Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005). A strategic de-
cision demonstrates that the defendant made a knowing and
8 No. 15-2824
intelligent waiver and did not negligently fail to raise the ar-
gument. The analysis requires some conjecture on our part in
light of the record viewed as a whole. Garcia, 580 F.3d at 542.
Conscious of the rule that waiver is to be “construed liber-
ally in favor of the defendant,” Butler, 777 F.3d at 387, we can-
not find that Burns waived his objections at sentencing.
The government offers three strategic reasons why Burns
waived the objections that he makes here: (1) he accepted re-
sponsibility for the total loss so that he could argue for a lesser
prison sentence, which would allow him to work and repay
the debt quicker; (2) he agreed that $3.3 million was the ap-
propriate number; and (3) he accepted $3.3 million because it
was less than the total loss that the Ponzi scheme caused. All
three arguments hinge on the idea that Burns accepted that he
was responsible for the victims’ $3.3 million loss. All three ar-
guments fail because the sentencing transcript belies Burns’s
acceptance.
We consider restitution and forfeiture first. At sentencing,
Burns questioned whether he would be responsible for the en-
tirety of the orders. By asking whether the restitution and for-
feiture orders would be apportioned, Burns necessarily im-
plied that he should have to pay less than $3.3 million. The
record does not reflect a strategic decision to accept the $3.3
million figure because Burns actually argued (although in a
legally deficient manner) that the orders should be reduced.
The omission was not “the result of a deliberate and strategic
choice to pursue one sentencing argument” over another, and
therefore, the argument is not waived. Butler, 777 F.3d at 387.
The same holds true for Burns’s objection to the loss
amount used to enhance his sentence. Again using the $3.3
No. 15-2824 9
million figure, the district court increased Burns’s offense
level by 18. U.S.S.G. § 2B1.1(b)(1)(I) (2014). Although failing
to properly preserve the objection, Burns argued at sentenc-
ing that using $3.3 million to enhance his sentence was exces-
sive because of how small a portion his investors’ losses were
out of the entire loss caused by the Ponzi scheme. That the
argument was based on questionable legal reasoning is irrel-
evant. However weak the argument presented at sentencing
may have been, it shows that he did not intentionally waive
his objection to the loss amount used to enhance his sentence.
A defendant does not strategically waive an argument that
was inartfully articulated; instead, counsel was deficient for
failing to properly raise the objection. Brodie, 507 F.3d at 532.
Despite our discussion above, the dissent makes much of
the fact that Burns “agreed” with the $3.3 million number. The
full dialogue at the sentencing hearing contradicts the dis-
sent’s argument that Burns agreed that he proximately caused
the full loss. The judge told Burns that he thought Burns
agreed with the government’s loss number. Burns’s counsel
responded that, “Well, we agree with the number. The only
question is whether or not he is going to be responsible for the
entire amount, which, I guess, is a restitution issue, or if it will
be apportioned.” (R. 174 at 2.) The second part of Burns’s re-
sponse discredits any claim that he agreed that he caused the
victims’ full loss. That interpretation is buttressed by addi-
tional dialogue at sentencing. Moments later, Burns’s counsel
again said, “We agree that that is the correct number, Judge.”
(R. 174 at 3.) But that statement came only after counsel stated
that $3.3 million “is the total amount of the loss.” (R. 174 at 3.)
In context, we read Burns’s comments at sentencing as agree-
ing only that his victims lost $3.3 million, not that he proxi-
10 No. 15-2824
mately caused the full loss. Burns did not make a strategic de-
cision to forgo the arguments he raises here when he actually
argued that he shouldn’t be responsible for the entirety of the
victims’ loss. At most, Burns’s attorney negligently failed to
raise the proximate-cause and forfeiture arguments. United
States v. Jenkins, 772 F.3d 1092, 1096 (7th Cir. 2014).
We also remain unconvinced that Burns strategically de-
cided to accept the $3.3 million figure so that he could plead
for leniency in his sentence. Burns asked the judge for a lesser
sentence so that he could work to pay off the restitution and
forfeiture orders. Again, however, that argument did not de-
pend on accepting responsibility for the full $3.3 million that
his victims lost. He argued for leniency after he argued that
he should be responsible for only 10 percent of the victims’
loss for sentencing purposes and that the restitution and for-
feiture awards should be apportioned.
“Our duty when considering waiver is to divine from the
record an intent to forego an argument … .” Garcia, 580 F.3d
at 542. We cannot divine a strategic decision to forgo an argu-
ment when a defendant makes both arguments. See Butler, 777
F.3d at 387 (finding forfeiture because the “omission was due
to defense counsel's oversight, rather than the result of a de-
liberate and strategic choice to pursue one sentencing argu-
ment while forgoing another”). The substance of what Burns
argued at sentencing would have had the same effect as the
arguments he makes on appeal—namely a shorter sentence
and reduced restitution and forfeiture orders. Agreeing with
the victims’ loss total or indicating that a punishment is just
no more signifies a knowing and intelligent waiver than ex-
plicitly telling the district court there are no further objections
to a sentence. “We must consider the lawyer’s statement in
No. 15-2824 11
light of the surrounding circumstances and determine
whether counsel made a knowing and intentional decision.”
Garcia, 580 F.3d at 542. Without a convincing strategic expla-
nation that would demonstrate a knowing and intelligent
waiver, we conclude that Burns forfeited—but did not
waive—his objections. Jaimes-Jaimes, 406 F.3d at 848.
2. Plain-Error Review
Because Burns forfeited his arguments, we review the dis-
trict court’s decision for plain error. Under plain-error review,
we reverse the district court “only when we find: (1) an error
or defect (2) that is clear or obvious (3) affecting the defend-
ant's substantial rights (4) and seriously impugning the fair-
ness, integrity, or public reputation of judicial proceedings.”
United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010).
We pause here to address the dissent’s concern about our
application of plain-error review. Our opinion should not be
read as chastising Judge Kocoras for failing to address the ar-
guments Burns presents here: indeed, we review for plain er-
ror because we explicitly hold that Burns did not preserve the
arguments he now makes. Judge Kocoras, a learned and ex-
perienced jurist, did not intentionally or knowingly fail to ad-
dress the arguments Burns raises here. The second element in
plain-error review, that the error was “plain,” means that the
error was “clear” or “obvious.” Olano, 507 U.S. at 734. We
have never required, however, that the error be obvious to the
district court, only that the error was obvious under the law.
See Jenkins, 772 F.3d at 1098 (holding that the district court
plainly erred when it adopted “erroneous information in a
PSR” no matter how “correct such information appears”); see
also Henderson v. United States, 133 S. Ct. 1121, 1130 (2013)
(“The Rule’s requirement that an error be ‘plain’ means that
12 No. 15-2824
lower court decisions that are questionable but not plainly
wrong (at time of trial or at time of appeal) fall outside the
Rule’s scope.”). That Judge Kocoras understandably did not
recognize the errors we address here does not factor into our
analysis of whether the errors were plain.
If a plain error has occurred, the next step is to determine
whether the defendant’s substantial rights are affected. Sub-
stantial rights are affected when the defendant can show “a
reasonable probability that, but for the error, the outcome of
the proceeding would have been different.” United States v.
Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (quoting Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). The de-
fendant need not show that the outcome certainly would have
been different. Id.; see also United States v. Feinberg, 89 F.3d 333,
336 (7th Cir. 1996) (holding that to show prejudice, a defend-
ant “must show that but for the [error], the outcome of the
trial probably would have been different”). We agree with the
dissent that plain-error review is to be applied rigorously.
United States v. Hallahan, 756 F.3d 962, 979 (7th Cir. 2014). We
disagree, however, about whether the facts show a reasonable
probability that, but for the error, the outcome of the proceed-
ing would have been different. For the reasons discussed be-
low, we hold that there is a reasonable probability that the
outcome at sentencing would have been different absent the
error.
a. Sentencing Enhancement
Under the Sentencing Guidelines, a defendant’s base level
is increased according to the loss associated with the crime.
U.S.S.G. § 2B1.1(b)(1). “Loss” in § 2B1.1(b)(1) is defined as
No. 15-2824 13
“the greater of actual loss or intended loss.”1 U.S.S.G. § 2B1.1
cmt. n.3(A). “‘Actual loss’ means the reasonably foreseeable
pecuniary harm that resulted from the offense.” U.S.S.G.
§ 2B1.1 cmt. n.3(A)(i). “Reasonably foreseeable pecuniary
harm” means loss that the defendant knew or reasonably
should have known “was a potential result of the offense.”
U.S.S.G. § 2B1.1 cmt. n.3(A)(iv). We have held that determin-
ing whether loss was reasonably foreseeable requires causa-
tion analysis. United States v. Domnenko, 763 F.3d 768, 777 (7th
Cir. 2014); United States v. Whiting, 471 F.3d 792, 802 (7th Cir.
2006). Causation includes two separate analyses: but for cau-
sation and proximate causation. Whiting, 471 F.3d at 802.
A district court that does not adequately explain a sen-
tence commits procedural error. United States v. Leiskunas, 656
F.3d 732, 738 (7th Cir. 2011). Further, a district court errs when
it fails to set out “explicit and clear factual findings and deter-
minations” that form the basis of its decision. United States v.
Titus, 821 F.3d 930, 934 (7th Cir. 2016). Thus, we have re-
manded cases when the district court improperly applied the
causation analysis and when the district court did not address
causation at all. Whiting, 471 F.3d at 802; Domnenko, 763 F.3d
at 776–77.
The words “reasonable foreseeability” and “proximate
cause” and their variants do not appear in the sentencing tran-
script. At most, the district court held that Burns’s conduct was
not reasonable in that he should have verified the investments
instead of trusting what USARMS’s owners told him about
1 Intended loss is irrelevant in this case because the district court based its
enhancement on the victims’ actual loss.
14 No. 15-2824
the Turkish bonds. That his conduct was unreasonable, how-
ever, does not necessarily mean that he proximately caused
the victims’ loss. Without a clear ruling on proximate causa-
tion, the district court erred.
Because the court did not discuss proximate causation,
Burns’s substantial rights were affected. The district court
used the $3.3 million loss number to enhance Burns’s sentence
by 18 levels. The 18-level enhancement increased Burns’s sen-
tencing guideline range from 12–18 months to 108–135
months. When a district court improperly applies a sentenc-
ing enhancement, the defendant’s substantial rights are af-
fected. See United States v. Doss, 741 F.3d 763, 768 (7th Cir.
2013); Leiskunas, 656 F.3d at 738; cf. United States v. Tovar-Pina,
713 F.3d 1143, 1148 (7th Cir. 2013) (holding that, when a dis-
trict court judge increases a sentence but fails to explain why,
the error is not harmless and requires remand for resentenc-
ing). Even though the district court may determine that Burns
proximately caused the actual loss on remand, there is a rea-
sonable probability that the outcome will be different because
the government did not claim that Burns knew about the
Ponzi scheme. For that reason alone, the Ponzi scheme can
reasonably be seen as a superseding cause that breaks the
causal chain.
Finally, an error that significantly increases a defendant’s
prison sentence without a proper factual basis seriously im-
pugns the fairness, integrity, and public reputation of judicial
proceedings. Doss, 741 F.3d at 768. Thus, the district court
committed reversible plain error.
No. 15-2824 15
b. Restitution
Courts lack inherent authority to order restitution and
may do so only when authorized or required by statute.
United States v. Locke, 643 F.3d 235, 246 (7th Cir. 2011). The
Mandatory Victims Restitution Act (“MVRA”) requires courts
to order restitution if the offense of conviction “involves as an
element a scheme, conspiracy, or pattern of criminal activity.”
18 U.S.C. § 3663A(a)(2). Both wire fraud and mail fraud in-
clude as an element a scheme to defraud. United States v. Dan-
iel, 749 F.3d 608, 613 (7th Cir. 2014).
The MVRA has a proximate cause requirement. The stat-
ute defines a victim to whom restitution must be paid as “a
person directly and proximately harmed as a result of the
commission of an offense for which restitution may be or-
dered… .” 18 U.S.C. § 3663A(a)(2); see also Robers v. United
States, 134 S. Ct. 1854, 1859 (2014); United States v. Clark, 787
F.3d 451, 463 (7th Cir. 2015). As already discussed, the district
court did not address proximate causation during sentencing.
That error affects Burns’s substantial rights. A defendant’s
substantial rights are affected when he may have been re-
quired to pay more in restitution than he owes. United States
v. Allen, 529 F.3d 390, 397 (7th Cir. 2008); United States v. Randle,
324 F.3d 550, 558 (7th Cir. 2003) (“In requiring [the defendant]
to pay several thousand dollars in restitution, without a stat-
utory basis for doing so, the error affects [the defendant’s]
substantial rights.”). Under the current restitution order,
Burns may have to pay more than he owes because, without
a proximate cause analysis, there is no way of knowing if he
caused the victims’ full loss. Moreover, the fairness, integrity,
and public reputation of judicial proceedings are harmed
16 No. 15-2824
when the district court acts without statutory authority. Locke,
643 F.3d at 248; Allen, 529 F.3d at 397; Randle, 324 F.3d at 558.
Ordering restitution beyond what Burns may have caused
exceeds the statutory authority that Congress has given courts
and requires reconsideration.
c. Forfeiture
The parties dispute whether forfeiture should be calcu-
lated under 18 U.S.C. § 981(a)(2)(A) or (B). Under either sec-
tion, the defendant must forfeit “proceeds”; the difference in
the subsections is in how “proceeds” is defined. Put simply,
“proceeds” may mean either receipts (in subsection (A)) or
profits (in subsection (B)).
We need not decide that issue here because it is irrelevant.
Burns does not argue that the district court should have re-
duced the forfeiture award by his direct costs in providing the
financial services (which would be allowed under (B) but not
(A)); rather, Burns argues that the district court erred by
awarding forfeiture based on the victims’ loss and not his
gain. Forfeiture is based on the theory that a defendant should
not profit from his illegal activity, and thus, forfeiture orders
reflect the defendant’s gain as opposed to the victims’ loss.
United States v. Webber, 536 F.3d 584, 603 (7th Cir. 2008); United
States v. Genova, 333 F.3d 750, 761 (7th Cir. 2003). For our pur-
poses then, the only issue is whether the district court ordered
forfeiture in the amount that Burns received from his fraud.
It did not. Neither side alleges that Burns actually gained
$3.3 million from his fraud. Burns alleges that he did not
profit at all from his fraud. According to Burns, he received a
salary and a guaranteed bonus under his employment con-
tract. His compensation didn’t depend on his performance,
No. 15-2824 17
and therefore, he didn’t gain from his fraud. Alternatively,
Burns argues that, even if he profited from his fraud, he could
at most be required to forfeit the money he actually received
for his work ($220,000 over 17 months). The government’s
only argument that Burns should forfeit $3.3 million is “that
a court may order a defendant to forfeit proceeds received by
others who participated jointly in the crime, provided the ac-
tions generating those proceeds were reasonably foreseeable
to the defendant.” United States v. Contorinis, 692 F.3d 136, 147
(2d Cir. 2012).
At sentencing, the district court only tangentially ad-
dressed what Burns profited from his fraud. And the limited
discussion reveals that even the district court did not believe
that Burns made $3.3 million from his fraud. The district court
stated that Burns “induced [the victims] to part with millions
of dollars, which went to your company and which you indi-
rectly benefitted, through your salary and through your bo-
nuses -- the generous bonuses you received.” (R. 174 at 89–
90.)
Further, the government’s reliance on Contorinis is mis-
guided. In its brief, the government ignored the court’s ad-
monition that it was “not aware of, and the government has
not cited, any decision standing for the proposition that a de-
fendant may be required to forfeit funds never acquired by
him or someone working in concert with him.” Contorinis, 692
F.3d at 147. In its brief in support of its motion in limine, the
government stated that “Defendant is not alleged to have
knowingly participated in the Ponzi scheme that happened at
USA Retirement.” (R. 104 at 4.) The government’s response to
Burns’s post-trial motions specified that “Defendant is alleged
by himself to have told material lies to investors that caused
18 No. 15-2824
them to part with their money and invest it with USA Retire-
ment.” (R. 125 at 9) (emphasis in original). The government
cannot disclaim allegations that Burns acted in concert with
USARMS’s owners but then seek a forfeiture order based on
what USARMS’s owners made from the Ponzi scheme.
That error affects Burns’s substantial rights because he was
ordered to pay more than he gained from his fraud. See Locke,
643 F.3d at 248; Allen, 529 F.3d at 397; Randle, 324 F.3d at 558.
The fairness, integrity, and public reputation of judicial pro-
ceedings require that we exercise our authority to correct an
error that would cause Burns to forfeit over $3 million more
than he gained from his fraud.
III. CONCLUSION
The jury verdict is supported by sufficient evidence, so we
AFFIRM Burns’s conviction. The district court erred, however,
in using the full amount of the victims’ loss to enhance Burns’s
sentence and ordering restitution without determining that
Burns proximately caused that loss. Moreover, the district
court also erred by ordering forfeiture in the full amount of
the victims’ loss without determining that Burns actually
gained that full amount from his fraud. Accordingly, because
the errors were plain, we must, and hereby do, VACATE
Burns’s sentence, restitution order, and forfeiture order, and
REMAND those matters for resentencing proceedings con-
sistent with this opinion.
No. 15-2824 19
HAMILTON, Circuit Judge, dissenting in part. I agree that we
should affirm Burns’ conviction. I would also affirm his sen-
tence. The majority errs by reversing the below-guideline sen-
tence on an issue that Burns simply did not present to the dis-
trict court—whether he caused the full $3.3 million loss for
which he was held accountable at sentencing. That was the
total amount lost by the twelve customers whom Burns con-
vinced to invest in the larger Ponzi scheme.
The majority actually errs twice. First, in the district court,
Burns waived the issues he pursues for the first time on ap-
peal. He actually agreed that $3.3 million was the correct fig-
ure for the loss amount, restitution, and forfeiture. He even
said that the $3.3 million restitution order would be “just pun-
ishment” for his offense! Dkt. No. 146 at 19-20. Burns also
made strategic use of the $3.3 million figure, making it the ba-
sis of his principal argument for leniency: he asked for proba-
tion instead of incarceration so that he could repay the vic-
tims. That’s textbook waiver.
Second, even if Burns merely forfeited his objection on the
causation issue, there was no plain error. Burns’ substantial
rights were not affected by the absence of a more explicit find-
ing on causation. The evidence easily supports such a finding.
We should not find “plain error” for the mere lack of a finding
that the judge was not asked to make, at least when the evi-
dence will support such a finding.
I doubt that this unusual reversal signals a lasting shift in
our approach to sentencing appeals. The majority’s approach,
though, will encourage defendants to search records for new
issues to raise on appeal. That is inconsistent with our usual
and sound approach to sentencing appeals. “The sentencing
in the district court is the main event. The parties prepare and
20 No. 15-2824
identify the issues they wish to address.” United States v.
Lewis, 823 F.3d 1075, 1083 (7th Cir. 2016) (finding waiver of
issues first raised on appeal).
When available objections are not raised, the parties and
the court should not and need not waste time on issues that
are not actually disputed. The sentencing process here was
thorough. Judge Kocoras addressed—thoughtfully and in de-
tail—the many issues the parties actually raised before him.
We do a disservice to district judges by reversing and remand-
ing for supposedly failing to make findings they were not
asked to make on issues that were not disputed. I respectfully
dissent from the reversal and remand of Burns’ sentence.
I. Waiver of Objections to Loss Amount, Restitution, and Forfei-
ture
The majority concedes that Burns “never articulated the
proximate-cause objection that he makes here.” Ante at 7. In
fact, he not only failed to object to the loss amount, he affirm-
atively embraced it. Burns and his counsel submitted numer-
ous objections to the presentence report. Yet in both the writ-
ten objections and at the hearing, they embraced the $3.3 mil-
lion figure and used it to recommend what would have been
a remarkably lenient sentence, 60 months of probation.
A. The Presentence Investigation Report and Burns’ Objec-
tions
The waiver here was as thorough as one is likely to see. It
began with the presentence investigation report and Burns’
written objections to it. Written objections are prepared with
time to consider all issues and to select which to pursue. See,
e.g., United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)
No. 15-2824 21
(finding waiver; there is “stronger case for waiver” when de-
fendant is given “advance notice of the PSR’s contents and an
opportunity to object before and during the sentencing hear-
ing,” yet fails to object).
The presentence investigation report recommended a total
loss amount of $3.3 million, the amount lost by the twelve vic-
tims who worked with Burns. (¶26) This amount led to an 18-
level increase in the offense level. (¶41) The report recom-
mended the same figure for restitution. (¶¶121, 144) Burns’
counsel advised the probation office that he did not dispute
the loss amount. (¶40)
Burns filed detailed written objections to the presentence
investigation report. He objected to the inclusion of victim im-
pact statements in the report. He asked the court to sentence
him under a proposed guideline amendment that would ad-
just the loss ranges for inflation and reduce the adjustment
from 18 to 16 levels. He objected to a sentencing adjustment
for abuse of a position of trust. Yet he did not challenge the
$3.3 million loss amount in any way.
Burns then outlined his sentencing request: 60 months of
probation. His principal argument was that probation would
enable him to repay his victims the $3.3 million. He made this
claim several times in his objections to the presentence report.
Dkt. No. 146 at 13, 19–20. His argument reflects a strategic
choice to rely on the full loss amount to support his request
for probation instead of incarceration. Burns even called the
$3.3 million restitution—which he now challenges on ap-
peal—just punishment for his crime: “Requiring Mr. Burns to
pay back the $3.3 million in restitution, coupled with the life-
long hardships that he will experience as a result of being a
22 No. 15-2824
convicted felon, are just punishments for his offense.” Id. at
19-20.1
In his objections to the presentence report, Burns also ar-
gued for leniency because of his relatively minor role in the
larger USARMS scheme. He illustrated this twice by saying
the $3.3 million his victims lost was only ten percent of the
larger $37 million fraud:
This scheme, in which Mr. Burns was not a
knowing participant, netted approximately $37
million from 130 investors. There are 12 victims
that the government attributes to interacting
with Mr. Burns, who lost a total of $3.3 million.
1 Here is the full context of Burns’ written request for leniency:
John [Burns] also has to face the daunting task of paying more
than $3.3 million dollars in restitution to the victims in this case.
If Mr. Burns is incarcerated for any period of time, he will not be able to
make any meaningful contribution to that restitution. Mr. Burns is 55-
years-old. Incarcerating him for the 87 months that the probation
officer recommends will bring any restitution payments to a screech-
ing halt. If he is sentenced to probation, he can begin making res-
titution payments immediately because he is currently employed.
Further, the prospects of him finding a job at age 61 (the approxi-
mate age he will be upon release if this Court follows the proba-
tion officers’ recommendation of an 87-month sentence and Mr.
Burns receives the Drug and Alcohol Program) are improbable.
Understandably, the bitter victims want to see someone go to jail
as retribution for their losses. But perhaps if given the choice, they
would rather have Mr. Burns working and making restitution
payments to them. Requiring Mr. Burns to pay back the $3.3 million
in restitution, coupled with the lifelong hardships that he will experience
as a result of being a convicted felon, are just punishments for his offense.
Dkt. No. 146 at 19–20 (emphasis added).
No. 15-2824 23
This loss attributable to Mr. Burns is a mere 10
percent of Durmaz and Pribilski’s scheme. Mr.
Burns was not a necessary or integral part of the
scheme because the Partners were doing just
fine raising investment funds before they hired
him.
Dkt. No. 146. at 18.2 This was not an objection to the $3.3 mil-
lion loss amount. Indeed, this ten-percent argument de-
pended on his accepting the $3.3 million amount. The defense
obviously considered a challenge to the loss amount and
chose a different approach.
B. The Sentencing and Forfeiture Hearing
Burns waived his appellate objections again at the hearing
on sentencing and forfeiture. Three times at the beginning of
the hearing, Burns’ counsel agreed to the $3.3 million figure.
Sent. Tr. 2–3. The judge first asked whether there was any ob-
jection to the preliminary order of forfeiture for $3.3 million.
Burns’ counsel responded: “Well, we agree with the number.
The only question is whether or not he is going to be respon-
sible for the entire amount, which, I guess, is a restitution is-
sue, or if it will be apportioned.” Id. at 2.
Saying his “only question” was about restitution fell far
short of an actual objection for any purpose. It also implicitly
accepted the $3.3 million figure as the correct forfeiture
amount. After the court rejected apportionment, Burns’ coun-
sel agreed that $3.3 million “is the total amount of the loss.”
2 Burns’ counsel made the same claim earlier in the memorandum: “This
scheme netted approximately $37 million from a total of 130 investors. The
amount attributable to Mr. Burns is $3,383,183, which is less than ten per-
cent of the total scam.” Dkt. No. 146 at 15.
24 No. 15-2824
Id. at 3. The judge then said: “there is a commonality to the
forfeiture order, as well as the upcoming consideration of the
restitution order. Those numbers are the same and they cover
the same conduct.” Burns’ counsel responded: “We agree that
that is the correct number, Judge.” Id. Burns thus agreed that
$3.3 million was the correct figure for all three purposes: loss
amount, restitution, and forfeiture.3
3 Here is the full exchange at pages 2–3 of the sentencing transcript:
THE COURT: Good morning. Is there any objection to the preliminary
order of forfeiture?
MR. LOPEZ [Counsel for Burns]: Judge, I have not had an opportunity
really to respond to it. The only issue that we had –
THE COURT: I thought you agreed with their number?
MR. LOPEZ: Well, we agree with the number. The only question is
whether or not he is going to be responsible for the entire amount, which,
I guess, is a restitution issue, or if it will be apportioned.
THE COURT: I do not think it is apportionment. This is an indictment
solely against Mr. Burns. These properties were counts of the indictment.
And, so, whether anyone else may be responsible, Mr. Burns would be
responsible for the entirety. That is the way I see it. Do you see it that way?
MR. HEDGES [Prosecutor]: Yes, your Honor.
THE COURT: They are not asking for any larger sum, other than what
was tried before me.
MR. LOPEZ: Right. That is the total amount of the loss. I understand
that.
THE COURT: Here.
MR. LOPEZ: Here. But I guess the restitution is a different issue.
THE COURT: Well, the restitution that is proposed is the same figure.
MR. HEDGES: That is correct, your Honor.
No. 15-2824 25
After sorting through the objections the parties actually
raised, the judge summed up his guideline findings and gave
the parties a further chance to object:
So, here is what we have. We have the Guide-
lines and what they produce. It is a Level 29 and
a Criminal History Category of I. That is the end
result. And in that calculation, everyone is in
agreement, I think – “everyone,” meaning the
two parties here – there were 12 victims and the
loss amount for these victims was $3,383,113. I
think that amount is not in dispute.
Id. at 22. The defense knew how to object. It remained silent
when the judge said the amount was “not in dispute.”
Later in the hearing, when Burns himself addressed the
court, he followed through on the written argument and
again relied on the full $3.3 million loss amount to ask for le-
niency. He claimed that sentencing him to “any type of incar-
ceration will only serve to delay my ability to start repaying
restitution.” Id. at 87. Although the “restitution of $3.3 million
is daunting” he would “go to work” and “willingly make re-
payment to all of these people.” Id. He argued that allowing
him to work while on probation would “serve a much better
purpose … than having me sent to some minimum security
THE COURT: Yes. So, there is a commonality to the forfeiture order,
as well as the upcoming consideration of the restitution order. Those num-
bers are the same and they cover the same conduct.
MR. LOPEZ: We agree that that is the correct number, Judge.
THE COURT: All right. Then I am going to grant that motion, so we
can dispense with that.
26 No. 15-2824
camp, where I will be of no use to anyone.” Id. His counsel
had made the same argument. Id. at 51.
C. The Majority’s Theory to Avoid Waiver
To avoid these unusually extensive signs of waiver, the
majority relies on two passages in the sentencing transcript:
the question about Burns’ responsibility for the full restitution
amount, and a virtually incoherent variation on the ten-per-
cent argument discussed above. Neither offers a sound basis
for excusing Burns’ repeated failure to object and his affirma-
tive embrace of the $3.3 million figure.
As quoted above in note 3, at the beginning of the hearing,
Burns’ lawyer asked whether he would be responsible for the
entire restitution amount or if the amount would be appor-
tioned. The question was only about restitution, not forfei-
ture, and as the dialogue continued, the court concluded that
that the amounts for forfeiture and restitution “are the same
and cover the same conduct.” Burns’ lawyer responded: “We
agree that that is the correct number, Judge.” Id. at 3. Missing
from this exchange is anything recognizable as an objection.
Yet the majority finds that the mere question “necessarily im-
plied that he should have to pay less than $3.3 million,” ante
at 8, which leads the majority to conclude that Burns did not
accept the $3.3 million figure or make strategic use of it.
Lawyers and judges in federal courts understand the dif-
ference between questions and objections. A lawyer who does
not like an answer to a question can register an objection if
there is one. Here there was none. Yet the majority finds that
the judge erred by not treating the mere question about pos-
sible apportionment as if it were a signal that Burns wanted
No. 15-2824 27
to raise every possible objection to the amount used for guide-
line loss, restitution, and forfeiture.
That is not a sound approach to appellate review. Where
counsel and client select issues to pursue at sentencing, as
happened here, the selection of issues waives other issues that
might well have distracted from the issues presented. See Sta-
ples, 202 F.3d at 995 (finding waiver of sentencing issues not
raised in written objection to presentence report); see also
United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005)
(“There may be sound strategic reasons why a criminal de-
fendant will elect to pursue one sentencing argument while
also choosing to forgo another, and when the defendant se-
lects as a matter of strategy, he also waives those arguments
he decided not to present.”); see also United States v. Hible, 700
F.3d 958, 961 (7th Cir. 2012) (collecting cases).4
After concluding that Burns did not accept the $3.3 million
restitution and forfeiture, the majority turns to the guideline
loss amount, finding that Burns showed he was not accepting
the $3.3 million loss amount based on a statement “inartfully
4 We apply the same approach to waiver in the selection of issues on ap-
peal, where we do not insist on extra evidence of strategy. When lawyers
select the issues to argue on appeal, we treat as waived issues that might
have been raised but were not. See, e.g., Smeigh v. Johns Manville, Inc., 643
F.3d 554, 565 (7th Cir. 2011) (“[Defendant] acknowledged that he didn’t
raise vicarious liability below and wasn’t raising it on appeal. [Defendant]
therefore has waived this argument.”); United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (a “skeletal ‘argument’ … does not preserve a
claim” on appeal); Sere v. Board of Trustees of Univ. of Illinois, 852 F.2d 285,
287 (7th Cir. 1988) (“We consistently and evenhandedly have applied the
waiver doctrine when appellants have failed to raise an issue in their
opening brief.”).
28 No. 15-2824
articulated” during the sentencing hearing. Ante at 9. To un-
derstand the statement, some context is helpful. Twice in
Burns’ response to the presentence report, he attempted to
minimize his role in the larger USARMS scheme by saying
that the $3.3 million his victims lost was only ten percent of
the larger $37 million fraud. Dkt. No. 146 at 15, 18. His counsel
made this claim again in the sentencing hearing: “And when
you look at the total loss of all of the victims in general versus
the amount that is proportionate to Mr. Burns, it is less than
10 percent of everything. So, Mr. Burns was not an integral
part of anything, in our opinion, because this scam was oper-
ating successfully long before Mr. Burns came along.” Sent.
Tr. 43. Again, this was not an objection to the loss amount. It
was an effort to illustrate Burns’ minor role.
Burns’ counsel later offered a confusing variant of the ten-
percent argument for the first time. The majority relies on this
statement:
I think, also, the Court could look to the percent-
age of the whole under this factor, the fact that
this whole scheme, you know, netted—I don’t
know the number off the top of my head, but 30-
something million. And he is attributable for
about three million. So, that is 10 percent. So, if
your Honor takes the Guidelines of the 10 per-
cent amount, the loss amount would be,
roughly, yeah, about 300-and-some-thousand.
So, that would equate to an Offense Level 7—
Base Offense Level 7—plus 12 for the monetary
amount.
Sent. Tr. 53–54. In context, this mystifying statement seems to
be a confused variant of the ten-percent minor-role argument
No. 15-2824 29
Burns had already made several times. The judge had re-
solved the guideline calculation issues much earlier in the
hearing. Id. at 22. Even the most charitable interpretation of
this confusing statement should not override the extensive
record of Burns’ agreement with and strategic use of the $3.3
million amount. The waiver was clear.
II. Plain-Error Review
After overlooking Burns’ waiver, the majority errs further
by applying the plain-error standard so liberally that it is as if
the defendant had presented to the district court the same ar-
gument he presents now on appeal. That is not plain-error re-
view.
The late Justice Scalia explained for the Supreme Court the
reasons for correct and rigorous application of the standard:
If a litigant believes that an error has oc-
curred (to his detriment) during a federal judi-
cial proceeding, he must object in order to pre-
serve the issue. If he fails to do so in a timely
manner, his claim for relief from the error is for-
feited. “No procedural principle is more famil-
iar to this Court than that a ... right may be for-
feited in criminal as well as civil cases by the
failure to make timely assertion of the right be-
fore a tribunal having jurisdiction to determine
it.” Yakus v. United States, 321 U.S. 414, 444
(1944).
If an error is not properly preserved, appel-
late-court authority to remedy the error (by re-
versing the judgment, for example, or ordering
a new trial) is strictly circumscribed. There is
30 No. 15-2824
good reason for this; “anyone familiar with the
work of courts understands that errors are a
constant in the trial process, that most do not
much matter, and that a reflexive inclination by
appellate courts to reverse because of unpre-
served error would be fatal.” United States v. Pa-
dilla, 415 F.3d 211, 224 (C.A.1 2005) (en banc)
(Boudin, C.J., concurring).
This limitation on appellate-court authority
serves to induce the timely raising of claims and
objections, which gives the district court the op-
portunity to consider and resolve them. That
court is ordinarily in the best position to deter-
mine the relevant facts and adjudicate the dis-
pute. In the case of an actual or invited proce-
dural error, the district court can often correct or
avoid the mistake so that it cannot possibly af-
fect the ultimate outcome. And of course the
contemporaneous-objection rule prevents a liti-
gant from “‘sandbagging’” the court—remain-
ing silent about his objection and belatedly rais-
ing the error only if the case does not conclude
in his favor.
Puckett v. United States, 556 U.S. 129, 134 (2009) (applying rig-
orous plain-error review to sentencing issue); accord, e.g.,
United States v. Arenal, 500 F.3d 634, 639 (7th Cir. 2007) (apply-
ing rigorous plain-error review to challenge to factual basis
for guilty plea; timely objection could have cured arguable er-
ror). Those observations apply directly to Burns’ new chal-
lenge to the loss calculation used in his sentencing.
No. 15-2824 31
The majority notes, though, that “we have remanded cases
when the district court improperly applied the causation
analysis [for loss amount] and when the district court did not
address causation at all.” Ante at 13, citing United States v.
Whiting, 471 F.3d 792, 802 (7th Cir. 2006), and United States v.
Domnenko, 763 F.3d 768, 776–77 (7th Cir. 2014). True enough,
but in those cases the defendants had raised the same objec-
tions in the district court that they raised on appeal. Neither
case was decided on plain-error review.
The majority also points out that the words “reasonable
foreseeability” and “proximate cause” do not appear in the
sentencing transcript. That’s right. Those words do not appear
because the defense did not argue there was any problem with
foreseeability or causation with the $3.3 million loss. Judge
Kocoras sensibly focused his energy on the many issues the
parties actually argued. (The sentencing transcript is 108
pages.) He did not waste anyone’s time on issues that the par-
ties did not argue. See Lewis, 823 F.3d at 1081 (judges and oth-
ers in criminal justice system “do not need to waste time treat-
ing matters that are not disputed as if they were”).
Even assuming no waiver, so that plain-error review
would be available here, Burns has not shown that his sub-
stantial rights were affected or that a failure to set aside his
sentence would seriously affect the fairness, integrity, or pub-
lic reputation of the judicial proceedings, let alone a miscar-
riage of justice. The burden is on Burns to show the court that
the claimed error affected the outcome. United States v. Olano,
507 U.S. 725, 734–35 (1993). This ordinarily requires a “specific
showing of prejudice,” id., not just speculation about the pos-
sibility of a different outcome.
32 No. 15-2824
This is not a case where the guideline calculation was ac-
tually wrong, as it was in Molina-Martinez v. United States, 578
U.S. —, 136 S. Ct. 1338 (2016) (finding plain error and ordering
new sentencing where guideline range was in fact wrong). All
that is supposedly missing here is a supporting factual find-
ing on an issue that was not disputed. The majority itself rec-
ognizes that the district court may well find on remand that
Burns’ fraud was a proximate cause of the victims’ $3.3 million
loss. Ante at 14.
That outcome is both likely and entirely appropriate. It
also shows there was no plain error here. Read in its entirety,
the sentencing transcript shows that the court believed Burns
was a proximate cause of his victims’ entire losses. The judge
said that Burns’ claims that he was unaware of the larger
Ponzi scheme were “not true.” Sent. Tr. 89. “I do not think you
stand before me as an innocent man who was euchred …. You
are too sophisticated. You are too sharp a businessman to
have fallen for that.” Id. at 90. And while Burns may not have
been the “architect” of the larger scheme, he “must have got
suspicious somewhere along the way,” and instead of walking
away he chose to “become their best salesman.” Id. at 93. The
majority does not address these findings in its plain-error re-
view.
The government did not argue that Burns had actual
knowledge of the larger Ponzi scheme, but the judge made
clear at the sentencing hearing that the evidence showed that
Burns knew the supposed investments in Turkish govern-
ment bonds were too good to be true. While the judge did not
use the phrase “proximately caused,” he clearly found that
Burns was foreseeably responsible for the losses. At best,
Burns deliberately closed his eyes to the warning signs and
No. 15-2824 33
then lied to lure prospective investors. Those findings based
on circumstantial evidence of Burns’ state of mind are more
than sufficient to support findings of proximate cause and
reasonable foreseeability for the full $3.3 million.
Hindsight and the leisurely pace of appeal show there was
a little more room for Burns to have argued that the forfeiture
amount, as distinct from the identical guideline loss and res-
titution amount, should have been the amount he was paid
instead of the amount his victims lost. It is easy to understand
why Burns and his lawyers chose not to start an idle debate of
the issue. The court was already ordering restitution of the
same $3.3 million. There was nothing to gain by arguing
whether forfeiture should be measured under 18 U.S.C.
§ 981(a)(2)(A) or (B).
In sum, the record here shows that Burns and his lawyers
focused carefully on sentencing issues. They selected the is-
sues they wanted to pursue. They chose not to dilute them by
pursuing other potential but unpromising issues, including
the proximate cause objection at the heart of the majority’s de-
cision. While Burns was disappointed by the results of the
strategy, his conduct amounts to waiver. We should not over-
look the waiver and indulge Burns’ appellate makeover of his
strategy and case. Nor was there any plain error. I would af-
firm the judgment of the district court in all respects.