United States v. Hawkins, Gerard , 145 F. App'x 173 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 12, 2005
Decided August 10, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 04-3358 & 04-3359
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 03 CR 114
GERARD HAWKINS and
MONIQUE HAWKINS, Larry J. McKinney,
Defendants-Appellants. Chief Judge.
ORDER
Gerard and Monique Hawkins appeal the sentences they received after being
convicted for their involvement in an extensive mortgage fraud scheme operating in the
Indianapolis area. The essence of the scheme, which we have addressed before,1
involved the use of inflated home appraisals to obtain artificially oversized loans from
lending institutions. After receiving a false home appraisal from a willing appraiser,
the parties used duplicate sets of settlement statements, one reflecting the true sale
price and another showing the inflated price, which was sent to the lender. The
1
Defendants involved in this same fraudulent scheme have come before this court in
United States v. Bryson, No. 03-2280; United States v. Girton, No. 03-2905; and United
States v. Neely, No. 03-2904.
Nos. 04-3358 & 04-3359 Page 2
difference between the true sale price and the inflated loan amount was then divvied
up among the members of the conspiracy.
Monique Hawkins’s role in the scheme was made possible by her job as a loan
originator for a mortgage brokerage called Investor’s Mortgage Group. In that position
she originated fraudulent loans to her husband, Gerard Hawkins, and others; she was
also instrumental in obtaining some of the inflated home appraisals. Both defendants
also defrauded an acquaintance of theirs into buying several low-priced homes at
drastically inflated prices. Following a week-long jury trial, both Hawkinses were
convicted on charges of conspiracy and mail fraud. Gerard Hawkins was also convicted
of money laundering for his efforts to conceal the proceeds of their activities.
The sole issue in this appeal is the propriety of the sentences under United States
v. Booker, 125 S. Ct. 738 (2005).2 The presentence report (“PSR”) for Monique
Hawkins calculated an offense level of 22 and a criminal history category of I, resulting
in a Guidelines range of 41-51 months’ imprisonment. The offense level was comprised
of a base offense level of 6, an addition of 2 levels for abuse of a position of trust, and
an increase of 14 levels for a loss amount of some $506,000. See U.S.S.G. §§ 3B1.3,
2B1.1(H). Gerard Hawkins did not fare as well in his Guidelines sentence calculation;
he received the same base offense level of 6, but added to that were 16 levels for a loss
amount above $1,000,000, as well as 2 levels for his conviction for money laundering
under 18 U.S.C. § 1956. See U.S.S.G. § 2S1.1(b)(2)(B). The resulting Guidelines range
for Gerard was 51-63 months.3
But the district court did not follow the Sentencing Guidelines. The Hawkinses’
sentencing hearings occurred in the wake of this court’s decision in United States v.
Booker, 375 F.3d 508 (7th Cir. 2004), which held that, after Blakely v. Washington,
542 U.S. 296 (2004), judicial fact-finding under the Sentencing Guidelines violated the
Sixth Amendment. Because the hearing occurred before the Supreme Court’s decision
in Booker, however, the district court crafted a novel approach designed to deal with
the interim uncertainty. First, the judge decided to use the base offense level of 6,
which was not dependent on judge-found facts, as a multiplier. For Monique the judge
multiplied that base level by 4, the number of counts on which Monique was convicted.
The resulting offense level of 24 produced a range of 51-63 months; the judge sentenced
Monique to a term of 51 months’ imprisonment, which by happenstance also fell within
the original 41-51 months Guideline range calculated in the PSR, although at the top
of that range. The judge stated that he viewed this sentence as “appropriate if the
2
Monique Hawkins also raised a claim of ineffective assistance of counsel, but at oral
argument she was permitted to withdraw that claim in order to pursue it in collateral
proceedings.
3
The PSR had given Gerard a criminal history category of II, but that was
subsequently reduced upon his objection.
Nos. 04-3358 & 04-3359 Page 3
Guidelines apply 100 percent” and “appropriate without the Guidelines.”
For Gerard, however, the same mathematical approach would have yielded a
draconian result because he stood convicted of 23 counts. So instead of multiplying the
number of counts by the base offense level of 6, the judge halved the base offense level
and used a multiplier of 3. He then multiplied 3 by the number of money laundering
counts only (12) for a resulting offense level of 36. The judge then reduced that level
to 29 in an effort to achieve proportionality with the sentences of the other defendants
convicted in the mortgage scheme. The resulting range was 87-108 months, and the
judge sentenced Gerard to 87 months’ imprisonment. This was the low end of the
creatively calculated range, but unlike Monique’s sentence, the result was higher than
the range a standard Guidelines application would have produced.
Given the uncertainty following the Supreme Court’s Blakely decision and our
decision in Booker, the sort of ad hoc approach undertaken by the district court in this
case is understandable. However, following the Supreme Court’s decision in Booker
and subsequent developments in circuit case law since Booker, it is clear that the
defendants must be resentenced.
While the Supreme Court’s remedial opinion in Booker transformed the Guidelines
from a mandatory regime into an advisory one, the Court made it clear that the
sentencing court “must consult those Guidelines and take them into account when
sentencing.” Booker, 125 S. Ct. at 767. We have held that “obedience to the Supreme
Court’s mandate in Booker requires that the district court first calculate the correct
guideline sentence so that that calculation can serve as a meaningful guide in the
district court’s imposition of a final sentence.” United States v. Baretz, 411 F.3d 867(7th Cir. 2005); see also United States v. Dean, No. 04-3172, 2005 WL 1592960, *4 (7th
Cir. July 7, 2005). A decision to deviate from a properly calculated but advisory
Guidelines range must be accompanied by an explanation of the factors in 18 U.S.C.
§ 3553(a) that the district court believes support the sentence imposed. Dean, 2005
WL 1592960, at *4 (“Judges need not rehearse on the record all of the considerations
that 18 U.S.C. 3553(a) lists; it is enough to calculate the range accurately and explain
why (if the sentence lies outside it) this defendant deserves more or less.”).
That did not occur here. Moreover, the error cannot be considered harmless, as the
government argues. We have recently held that a district court’s failure to properly
calculate a Guidelines sentencing range and consult that range as a starting point
before explaining any deviation is not harmless error. United States v. LaShay,
No. 04-3378, 2005 WL 1812937, *4 (7th Cir. Aug. 3, 2005). In this case, the district
court’s arithmetic approach just happened to produce a sentence at the top of the PSR’s
Guidelines range for Monique but cannot be characterized as a sentence meaningfully
guided by a properly calculated, though advisory, Guidelines range. The court’s
approach produced a sentence for Gerard that exceeded the PSR’s Guidelines range
and was not accompanied by the explanation contemplated by Dean. Accordingly, the
Nos. 04-3358 & 04-3359 Page 4
defendants’ sentences are VACATED and the case is REMANDED for resentencing as to
both defendants.
One final matter: Gerard Hawkins’ counsel, Jesse Coleman, did not appear for oral
argument. On May 20, 2005, we issued an order to show cause seeking an explanation
for counsel’s nonappearance. Coleman has not responded. Accordingly, Coleman is
hereby prohibited from practicing before this court until he provides an explanation for
his nonappearance at oral argument in this case. We reserve the issue of whether
further sanctions are appropriate.