United States v. Vaughn, Gene B. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1518
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GENE B. VAUGHN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 278—J.P. Stadtmueller, Judge.
____________
ARGUED NOVEMBER 10, 2005—DECIDED JANUARY 6, 2006
____________
Before FLAUM, Chief Judge, and RIPPLE and SYKES, Circuit
Judges.
RIPPLE, Circuit Judge. On September 17, 2004, Gene
Vaughn pleaded guilty to two counts of conspiracy, stem-
ming from the theft, transportation and fraudulent endorse-
ment of United States Treasury checks. See 18 U.S.C. §§ 371,
1956(h). The District Court for the Northern District of
Illinois sentenced Mr. Vaughn to 121 months’ imprison-
ment, as well as imposed a restitution obligation in the
amount of $383,919.49. Mr. Vaughn now challenges his
sentence; he submits that the district court
erred in consulting the 2001 Sentencing Guidelines be-
2 No. 05-1518
cause a majority of his conspiratorial conduct occurred prior
to the enactment of those Guidelines. He also contends that
the district court erred in applying the sentencing factors
specified in 18 U.S.C. § 3553(a). For the reasons set forth in
the following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
In early 2001, Mr. Vaughn entered into a conspiracy
with a number of individuals to steal treasury checks,
namely tax refund checks issued by the Internal Revenue
Service and monthly checks issued by the Social Security
Administration, from a postal distribution center in Los
Angeles, California. These checks were stolen by Jonathan
Culbert, Jr. and others between March 2001 and July
2002; Jonathan and Sheryl Culbert then mailed the checks to
Marlon Holt in Florida, who mailed them to Mr. Vaughn in
Wisconsin. R.159 at 3. It was agreed that Mr. Vaughn would
open “nominee” accounts in the name of fictitious business
entities for the purpose of depositing and transferring the
funds to himself and his co-conspirators. Id.Mr. Vaughn opened three bank accounts for this purpose.
On March 23, 2001, he and Demetrious Garner opened a
business checking account at Wells Fargo Bank in the
name of fictitious entity, “EZ Check Cashing.”1 Id. Mr.
Vaughn and Garner then fraudulently endorsed and
1
In addition, in March 2001, Mr. Vaughn and a co-conspirator,
using aliases, incorporated “EZ Check Cashing, Inc.” in the
state of Nevada.
No. 05-1518 3
deposited $388,378.26 in stolen treasury checks into this
account. These funds were later withdrawn by Mr. Vaughn
and transferred elsewhere. For example, during 2001,
Mr. Vaughn wrote a series of checks—totaling $222,311—
from the EZ Check Cashing account to a personal account at
Charter One Bank, which had been opened under the alias,
“Barry Vaughn.” Id. at 5. Mr. Vaughn then used these funds
for personal expenditures, including the purchase of a car.
He also wrote checks, totaling $119,000, from the EZ Check
Cashing account to several of his co-conspirators. The
account was later closed by Wells Fargo due to suspicious
activity. Id.In March 2002, Mr. Vaughn, along with his niece,
Tominka Vaughn, opened a second account at Wells Fargo,
this time under the name of fictitious entity, “Ruekia
Redd d/b/a Tax Returns by Redd.” Id. They fraudulently
endorsed and deposited $16,023.47 in stolen treasury checks
into and made numerous cash withdrawals from
the account. This account also was closed by the bank
because of suspicious activity. Id.Mr. Vaughn opened a third account in June 2002, this time
at Bank One and in the name of fictitious entity, “Troy
Phillips d/b/a Phillips Tax Agency.” Id. at 4. Mr. Vaughn,
along with his co-conspirators, fraudulently endorsed
and deposited into this account eleven stolen checks,
totaling $24,773.64. Mr. Vaughn also wrote checks from
this account to the Barry Vaughn account at Charter One
Bank. Id.The checks fraudulently endorsed and deposited into
these three accounts from March 2001 to July 2002 totaled
$429,175.37; this sum included approximately $424,632.51 in
stolen treasury checks and $4,542.86 in the form of a stolen
non-treasury check. Id.4 No. 05-1518
In May 2002, the United States Secret Service (“USSS”)
and the FBI began investigating the criminal activities of Mr.
Vaughn and his co-conspirators. They obtained signature
cards, deposit items and endorsed checks from Wells Fargo.
On May 15, 2002, they interviewed Garner, who revealed
various details of the conspiracy and implicated Mr.
Vaughn. Tominka Vaughn was arrested on May 20, 2002,
for attempting to pass a stolen check at Wells Fargo Bank;
when interviewed, she also implicated Mr. Vaughn in the
conspiracy. Four days later, the USSS obtained and executed
a seizure warrant for Mr. Vaughn’s vehicle, which had been
purchased with the stolen funds; in the vehicle, they found
a bank card for the Charter One account, and receipts for
packages sent by Mr. Vaughn to his co-conspirators in Los
Angeles. R.73, Ex.B.
B. District Court Proceedings
On December 9, 2003, a federal grand jury in the
Eastern District of Wisconsin returned a thirteen-count
indictment, charging Mr. Vaughn and five other defendants2
with violations of 18 U.S.C. §§ 371, 510(a)(2), 1344, 1956(a)(1)
(A)(I), 1956(a)(1)(B)(I) and 1956(h), and 31 U.S.C.
§§ 5324(a)(3) and 5324(d)(2).3 Mr. Vaughn pleaded guilty to
two counts: (1) conspiracy to defraud the United States,
2
Jonathan Culbert, Jr., Sheryl Culbert, Demetrious Garner,
Alvyna Sanders and Tominka Vaughn.
3
A superseding indictment was filed on March 23, 2004, R.88; a
second superseding indictment was filed on August 25, 2004,
anticipating United States v. Booker, 543 U.S. 220 (2005), and
amending the indictment to allege with specificity all possible
sentencing enhancements. R.162.
No. 05-1518 5
including conspiracy to steal, transport, receive and forge
endorsements on treasury checks, see 18 U.S.C. § 371; and (2)
conspiracy to commit money laundering, see 18 U.S.C.
§ 1956(h).
Prior to the sentencing hearing, Mr. Vaughn filed a motion
for a downward departure. Specifically, he contended that
because most of the criminal conduct at issue took place
before November 1, 2001—the date that the 2001 amend-
ments to the Sentencing Guidelines became
effective—application of the 2001 Guidelines would
“retroactively increas[e] [Mr. Vaughn’s] punishment.” R.176
at 4. Mr. Vaughn contended that, if the court nevertheless
chose to apply the 2001 Guidelines, it must “enter a down-
ward departure” to take into account the fact that his
criminal conduct “straddle[d] multiple years.” Id. at 2-3.
Specifically, the defense requested a five to seven point
adjustment, resulting in a sentencing range of 57-71 months.
See Sent. Tr. Vol.II at 21.
The district court denied this motion. Id. at 24-25. It
held that, under United States v. Parolin, 239 F.3d 922 (7th
Cir. 2001), “trial judges [are] to apply the amended form of
the guidelines even though the conduct may overlap two
different sets of guidelines.” Id. at 21. Although in this case,
the court wrote, many of the acts in furtherance of the
conspiracy took place before November 2001, including the
theft, transportation and fraudulent endorsement of the
majority of the treasury checks, “it is equally clear there
were still many activities . . . that bring the totality of Mr.
Vaughn’s conduct within the ambit of the November 1st,
2001 sentencing guidelines.” Id. at 24. The district court
further noted that
the facts of this case are a little more involved and
sophisticated than simply suggesting that . . . these
6 No. 05-1518
treasury checks were for the most part converted
prior to November 1st of 2001[;] there remained an
awful lot of activities associated with the disbursement
and cleansing of those funds that occurred after Novem-
ber 1st of 2001.
Id. at 25. “And if there be any amelioration or suggestion of
providing some consideration for the large amount of
money that was converted prior to November 1st,” the court
concluded, “I believe quite candidly that that matter can be
appropriately addressed first within the guideline construct
itself, as well as the matter of concurrent versus consecutive
sentences.” 4 Id.
Mr. Vaughn also submitted that the district court should
consider the benefits of a sentence that would run concur-
rent with his current state sentence. R.175 at 1; R.176 at 1-2.
In part, according to the defense, a concurrent sentence
would facilitate the prompt repayment of Mr. Vaughn’s
restitution obligation. Id. at 2; Sent. Tr. Vol.II at 10 (arguing
that, after Mr. Vaughn “serves the state sentence” and then
“the federal sentence,” “it would be about a dozen years
or more before he would have the opportunity to signifi-
cantly contribute to the restitution”).
The district court adopted this recommendation. It be-
gan by noting that Mr. Vaughn had a substantial criminal
history and that he had “gone undeterred” by his previous
sentences, and therefore, a lengthy term of imprisonment
4
The district court also noted that, if it were to apply the 2000
Guidelines, it would need to “depart upwardly” to take into
account Mr. Vaughn’s criminal history, the seriousness of his
offenses and the desirability of a prison sentence that would deter
him from future criminal conduct. Sent. Tr. Vol.II at 43.
No. 05-1518 7
was justified. Id. at 42. After giving “due recognition” to the
factors listed in 18 U.S.C. § 3553(a), id. at 42, the dis-
trict court calculated the advisory sentence range as follows:
Using the 2001 Guidelines, and taking into account a two-
point upward enhancement for sophisticated laundering,5
see U.S.S.G. § 2S1.1(b)(3), a four-point upward enhancement
for his supervisory role in the offense, see id. § 3B1.1(a), and
a two-point downward departure for acceptance of respon-
sibility, see id. § 3E1.1(a), Mr. Vaughn was assigned an
adjusted offense level of 29. His previous record placed him
in criminal history category II. Therefore, the 2001 Guide-
lines yield sentences of 60 months’ imprisonment for Count
I and between 97 and 121 months’ imprisonment for Count
II. The district court decided to follow the Guidelines on
Count I, and sentenced Mr. Vaughn to 112 months’ impris-
onment on Count II. The district court ordered that these
sentences run concurrently. It also directed that 24 months
of the 112-month sentence run concurrently with three
concurrent seven-year sentences for forgery imposed by the
Milwaukee County Circuit Court in Wisconsin, which Mr.
Vaughn was currently serving. Although the court did not
specifically cite as a benefit of concurrent sentences the
prompt payment of restitution, it concluded that “interests
of justice” compelled this result. Sent. Tr. Vol.II at 46 (cit-
ing its authority under 18 U.S.C. § 3584(a)).
In addition to imprisonment, the district court im-
posed a total restitution obligation of $383,919.49, an
amount equal to the total loss suffered by the relevant
5
Although the defendant objected to the imposition of an
enhancement for sophisticated laundering at the sentencing
hearing, see Sent. Tr. Vol.II at 9, the district court’s decision on
this matter has not been challenged on appeal.
8 No. 05-1518
financial institutions less the amount that the government
recovered from the EZ Check Cashing account. This restitu-
tion obligation was imposed jointly and severally on Mr.
Vaughn and his co-defendants.6
II
ANALYSIS
A. Applicable Version of the Sentencing Guidelines
This court previously has determined that, when a
defendant is convicted of an offense that commenced before
but continued after the enactment of an amendment to the
Sentencing Guidelines, he shall be subject to the amended
version of the Guidelines at sentencing.7 See United States v.
6
The restitution obligation breaks down as follows: $227,531.74
to Wells Fargo Bank; $137,194.05 to the United States Treasury;
$14,640.77 to Bank One; and $4,552.86 to the United Wisconsin
Group.
7
This same rule is recognized explicitly by most of our sister
circuits. See, e.g., United States v. Sullivan, 255 F.3d 1256, 1262-63
(10th Cir. 2001) (holding that, when criminal conduct com-
mencing before and continuing after the effective date of an
amendment to the Guidelines constitutes the “same course of
conduct,” analogous to a conspiracy, sentencing under the
new Guidelines is proper); United States v. Hebeka, 89 F.3d 279, 285
(6th Cir. 1996) (applying new Guidelines where a single offense
lasted for multiple years and thus constituted a “continuing
offense”); United States v. Castaneda-Cantu, 20 F.3d 1325, 1336 (5th
Cir. 1994) (applying this rule to the grouping together of multiple
counts, even when the defendant was charged with at least one
count prior to the enactment of the guideline amendments);
United States v. Eisen, 974 F.2d 246, 268 (2d Cir. 1992) (holding
(continued...)
No. 05-1518 9
Parolin, 239 F.3d 922, 926 n.2 (7th Cir. 2001) (upholding the
district court’s application of the amended Guidelines, given
that the defendant “engaged in conduct subsequent to the
effective date of the 1995 amendments”).8 This rule holds
particular force in a conspiracy case, where, as we noted in
United States v. Couch, the crime typically is “not a singular,
discrete offense that occurs at a point in time and fades into
the past” but rather represents an “ongoing course of
criminal conduct.” 28 F.3d 711, 714 (7th Cir. 1994). A
defendant convicted of conspiracy may be sentenced under
a version of the Guidelines enacted at any time prior to his
withdrawal from the conspiracy—even if he took part in no
overt acts in furtherance of the conspiracy post-enactment.
“Withdrawal requires an affirmative act to either defeat or
disavow the purposes of the conspiracy, such as making a
7
(...continued)
that when a crime “straddle[s] the effective date of the Guide-
lines,” the defendant is subject to the more current version of
those Guidelines); United States v. Thomas, 895 F.2d 51, 57 (1st Cir.
1990) (holding that, because the “conspiracy at issue continued
past the effective date of the [amended version of the] Sentencing
Guidelines,” those amendments governed the calculation of the
defendant’s sentence); United States v. Rosa, 891 F.2d 1063, 1069
(3d Cir. 1989) (same); United States v. Tharp, 892 F.2d 691, 693-95
(8th Cir. 1989) (surveying the legislative history of the 1987
amendments to the Sentencing Guidelines and concluding that
the “legislative intent favors application of the [new] Guidelines
to continuing offenses like the conspiracy before us”).
8
Although Parolin was decided pre-Booker, this fact does not
affect the validity of its rule. Booker made the Guidelines advi-
sory; it did not, however, change the method by which
a guidelines sentence is calculated for purposes of determin-
ing the advisory sentencing range.
10 No. 05-1518
full confession to the authorities or communicating to co-
conspirators that one has abandoned the enterprise.” See
United States v. Hall, 212 F.3d 1016, 1023 (7th Cir. 2000)
(holding that, because the defendant did not “affirmatively
disavow[] the purposes of the conspiracy” before the
guideline amendments became effective, he was subject to
those Guidelines at sentencing) (emphasis removed).9
We therefore turn to consider the district court’s factual
finding that Mr. Vaughn did not withdraw from the con-
spiracy prior to November 1, 2001—a finding that we
review deferentially and shall overturn only if clearly
erroneous. See United States v. Julian, 427 F.3d 471, 489 (7th
Cir. 2005). There is ample evidence supporting the district
9
For other circuits adopting this rule, see United States v. Graham,
275 F.3d 490, 516 n.16 (6th Cir. 2001) (“Because the crimes
continued after the effective date of the amendment, the applica-
tion of the adjustment does not present retroactivity problems.”);
United States v. Maggard, 156 F.3d 843, 851 (8th Cir. 1998) (holding
that, because conspiracy is a continuing offense, application of
the Sentencing Guidelines in effect at the time of withdrawal or
sentencing is proper); United States v. Lightbourn, 115 F.3d 291,
293-94 (5th Cir. 1997) (holding that, because the conspiracy
continued into the time period governed by the new Guidelines,
their application did not violate the Ex Post Facto Clause); United
States v. Innamorati, 996 F.2d 456, 489 (1st Cir. 1993) (applying
new Guidelines because the defendant did not withdraw from
the conspiracy before they became effective); United States v.
Bennett, 984 F.2d 597, 609-10 (4th Cir. 1993) (same); United States
v. Williams, 897 F.2d 1034, 1040 (10th Cir. 1990) (same); Rosa, 891
F.2d at 1069 (holding that, although the defendant did nothing to
“further the conspiracy” post-enactment, he did not “affirma-
tively renounce[] the conspiracy,” rendering application of the
new Guidelines proper).
No. 05-1518 11
court’s conclusion that Mr. Vaughn’s criminal conduct,
including his participation in the conspiracy, continued well
past the effective date of the 2001 Guidelines. As Mr.
Vaughn points out, by November 1, 2001, many goals of the
conspiracy already had been accomplished. For example,
Mr. Vaughn had: (1) accepted the transmittal of most of the
stolen checks from his co-conspirators in California; (2)
opened the first account at Wells Fargo; (3) deposited into
that account the vast majority of the stolen funds, totaling
$388,378.26; and (4) recruited various accomplices. Never-
theless, he remained a member of the conspiracy and acted
to further this conspiracy after the effective date of the 2001
Guidelines, as well. In 2002, he recruited another accom-
plice, his niece Tominka Vaughn. He continued to receive
treasury checks through July 2002 from his co-conspirators.
He opened the second checking account at Wells Fargo
under a fictitious name in March 2002, into which he
deposited $16,023.47 in stolen money. He opened a third
account in June 2002, this time at Bank One, under a
fictitious name; and he fraudulently endorsed and deposited
$24,773.64 in stolen treasury checks into that account. In
light of the plethora of evidence demonstrating that Mr.
Vaughn’s criminal conduct straddled two versions of the
Sentencing Guidelines, and the general practice of applying
the version of the Guidelines in effect at the time of sentenc-
ing, we hold that the district court did not err in calculating
Mr. Vaughn’s guideline range under the 2001 Guidelines.
B. Reasonableness
Mr. Vaughn submits that, even if the district court
properly calculated the advisory sentencing range, it should
have departed from that range to account for: (1) the fact
that more than 90% of the checks ($388,278 of $429,000)
12 No. 05-1518
were stolen, transported, fraudulently endorsed, deposited
and laundered while the old Guidelines were still in effect;
and (2) the harsh difference between the 2000 and 2001
Guidelines’ sentencing recommendations for the crimes in
question. The failure of the district court to consider these
factors, according to Mr. Vaughn, renders his sentence
unreasonable and unjust.
Before reaching the merits of Mr. Vaughn’s argument,
we pause to address our jurisdiction to review a district
court’s refusal to grant a “downward departure.” The
Government notes that, when the district court recog-
nizes its authority to depart under the Guidelines but in
an exercise of its discretion chooses not to do so, the general
rule pre-Booker was that an appellate court lacks jurisdiction
to review that decision. See, e.g., United States v. Fish, 388
F.3d 284, 288-89 (7th Cir. 2004).10 According to the Govern-
ment, because there is no evidence that the district court
mistakenly believed it lacked the authority to depart from
the advisory sentencing range, its discretionary refusal to do
so is unreviewable.
However, as we recently remarked, the concept of a
discretionary departure—over which we previously had
no jurisdiction—“has been rendered obsolete in the post-
Booker world. Instead, ‘what is at stake is the reasonableness
of the sentence, not the correctness of the departures as
measured against pre-Booker decisions that cabined the
discretion of sentencing courts to depart from guidelines
that were then mandatory.’ ” United States v. Arnaout,
2005 WL 3242213, at *7 (7th Cir. 2005) (internal cita-
10
See also United States v. Abimbola-Amoo, 390 F.3d 937, 938-39 (7th
Cir. 2004); United States v. Johnson, 289 F.3d 1034, 1043 (7th Cir.
2002); United States v. Payton, 198 F.3d 980, 984 (7th Cir. 1999).
No. 05-1518 13
tion omitted).11 Post-Booker, because we must review
all sentences for reasonableness in light of the factors
specified in § 3553(a), we necessarily must scrutinize, as part
of that review, the district court’s refusal to depart from the
advisory sentencing range.
We therefore turn to Mr. Vaughn’s claim that his sentence
is unreasonable. After Booker, although the Sentencing
Guidelines are advisory, sentencing judges nevertheless are
required to compute correctly the applicable sentencing
range; they then may depart from this range if appropriate
justification is offered for the departure. Sentences that fall
within a properly computed sentencing range are entitled to
a “rebuttable presumption of reasonableness.” United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Ultimately,
“[w]hether a sentence is reasonable depends on its confor-
mity to the sentencing factors set forth in 18 U.S.C.
§ 3553(a)[].” United States v. Cunningham, 429 F.3d 673, 675
(7th Cir. 2005). Although the district court need not “discuss
every argument made by a litigant,” there must be sufficient
indication that it considered the § 3553 factors relevant to
the calculation of the defendant’s sentence and that the
application of those factors to the facts of the case was not
unreasonable. Id. at 678 (holding that the sentencing judge
gave insufficient attention to the defendant’s psychiatric
11
See also United States v. Long, 425 F.3d 482, 487 (7th Cir. 2005)
(“After Booker, all sentences, including those that are above or
below the range that the guidelines would advise (i.e., those that
we would have described as the result of ‘departures’ in the pre-
Booker world), are to be reviewed for reasonableness.”). But cf.
United States v. D’Oliveira, 402 F.3d 130, 133 (2d Cir. 2005)
(holding that the jurisdictional bar on reviewing a discretion-
ary downward departure under U.S.S.G. § 2L1.2(b)(1) sur-
vives Booker).
14 No. 05-1518
problems and substance abuse as mitigating factors in
calculating the appropriate sentence, and remanding for re-
sentencing).
Mr. Vaughn argues that, because his involvement in the
conspiracy began when the 2000 Guidelines—which
recommend almost half the sentence suggested by the
2001 Guidelines—were still in effect, the sentence im-
posed in this case is both unjust and unnecessary. We
find no error in the district court’s determination of Mr.
Vaughn’s sentence, despite that it is significantly longer
than the range advised by the 2000 Guidelines. Mr.
Vaughn’s 112-month sentence falls at the midpoint of the
range recommended by the 2001 Guidelines, and thus
is entitled to a rebuttable presumption of reasonableness.
Mykytiuk, 415 F.3d at 608. “It will be a rare Guidelines
sentence that is unreasonable,” id., and Mr. Vaughn’s is
not one of them. As we have noted earlier, the district
court’s application of the 2001 Guidelines to criminal
conduct occurring both pre- and post-enactment of those
Guidelines enjoys the support of well-established case law.12
Moreover, the district court, evaluating the facts of Mr.
Vaughn’s case in light of the factors listed in § 3553(a),
concluded that the sentencing range recommended by the
2001 Guidelines better served the goals of retribution,
punishment and deterrence than did the former sentencing
12
See infra (discussing the straddle rule); see also United States
v. Thomas, 114 F.3d 228, 271-72 (D.C. Cir. 1997) (rejecting the
argument that because the new Sentencing Guidelines impose
“harsher penalties on defendants . . . than did the prior sen-
tencing regime,” it was unfair to apply those Guidelines to pre-
enactment conduct—even though, standing alone, that con-
duct would have been punished less severely); United States
v. Terzado-Madruga, 897 F.2d 1099, 1124 (11th Cir. 1990) (same).
No. 05-1518 15
regime. It held that, given Mr. Vaughn’s significant involve-
ment in the conspiracy and his lengthy criminal history, he
“ha[d] not [yet] learned the lessons from the error of [his]
way[s].” Sent. Tr. Vol.II at 42. Therefore, reasoned the court,
the advisory range of the 2000 Guidelines “understated the
seriousness of the offense.” Id. at 43 (noting that if the 2000
Guidelines were in effect, “the court really ought to depart
upwardly” in light of these factors). Because the district
court’s conclusions are supported by the record and
“appropriately related to the factors specified in § 3553(a),”
see United States v. Johnson, 427 F.3d 423, 429 (7th Cir. 2005),
we cannot find unreasonable the court’s decision not to
depart from the 2001 sentencing range.
Mr. Vaughn also contends that his sentence is unrea-
sonable because the district court failed to consider ade-
quately “the need to provide restitution to any victims of the
offense.” See 18 U.S.C. § 3553(a)(7).13 Although the district
court did not specifically cite § 3553(a)(7) during the
sentencing hearing, nor explicitly reference the defense’s
argument concerning the desirability of facilitating the
13
Mr. Vaughn also submits that the district court erred in not
considering his age and character. These arguments, however,
were interlinked with his § 3553(a)(7) analysis. Because of
Mr. Vaughn’s age, according to the defense, he will only have a
limited number of productive years after he is released from
prison if his 112-month sentence is upheld. Thus, he will be
unable to repay the full amount of his obligation before he retires
or passes away. See, e.g., Appellant’s Reply Br. at 7 (submitting
that the sentence imposed by the district court “[is] long enough
that he will not have many good working years left to repay the
restitution obligation”); R.176 at 2 (contending that “Mr. Vaughn
is a hard worker” and, thus, “the sooner he gets back to work
place . . . the sooner the restitution will be repaid to the victims”).
16 No. 05-1518
prompt repayment of restitution, it must be remembered
that the argument was presented to the district court in a
different light than it is now presented on appeal; instead of
being framed as a justification for downward departure, it
was framed as a motion for concurrent time. Specifically,
prior to the sentencing hearing, the defense filed a motion
for a concurrent term, along with a supporting memoran-
dum; in these documents, the defense asked the district
court to “consider the possibility of running the defendant’s
sentence concurrent to his current state sentence.” R.176 at
1. If released at an earlier date, the defense noted, “Mr.
Vaughn will be in a better position to pay back restitution
and his debt to society.” Id. at 2. This suggestion was
repeated at the sentencing hearing. Defense counsel re-
quested a “partially concurrent sentence, one in which
perhaps a couple years or more would run concurrent with
his state sentence,” in order to “help facilitate early payment
of restitution.” Sent. Tr. Vol.II at 29.
Although not discussing at-length its decision to do so,
the sentencing judge adopted this recommendation in
full, noting that this result was compelled by “the inter-
ests of justice.” Id. at 46. Specifically, the district court
directed that Mr. Vaughn’s sentences on Counts I and II run
concurrently, and that two years of the 112-month sen-
tence—the length of time suggested by defense coun-
sel—run concurrently with Mr. Vaughn’s three concurrent
seven-year state sentences for forgery currently being
served. The concurrent nature of Mr. Vaughn’s sentences
renders the length of imprisonment not nearly as extreme as
it may seem at first glance; the district court effectively
reduced the total time Mr. Vaughn will spend in prison for
his federal offenses to 88 months, which is 9 months below
the advisory range applicable to this case under the Guide-
lines. The need to provide restitution does not demand an
No. 05-1518 17
even lower sentence than that imposed. As the district court
noted, Mr. Vaughn committed a sophisticated and calcu-
lated crime involving multiple players and large sums of
money. A lengthy sentence is necessary to account for the
gravity of the offense and for Mr. Vaughn’s criminal history,
to protect the public and to “really act[] in a meaningful
way to deter future [criminal] conduct.” Id. at 42.14
14
Mr. Vaughn also contends that the disparity between his
sentence and the sentences received by his co-conspirators
demonstrates the unreasonableness of applying the 2001 Guide-
lines to his criminal conduct. However, because this claim was
not raised in the district court, it is deemed forfeited. Moreover,
the district court’s failure to consider his co-conspirators’
sentences does not constitute plain error. Mr. Vaughn admits that
his co-conspirators “ceased their conduct a few months prior to
Mr. Vaughn,” and thus are not subject to the 2001 Guidelines.
Appellant’s Br. at 13. Cf. United States v. White, 406 F.3d 827, 837
(7th Cir. 2005) (“[W]e have repeatedly stated that a disparity
among co-defendants’ sentences is not a valid basis to challenge
a guideline sentence otherwise correctly calculated.”). Mr.
Vaughn’s sentence was correctly calculated and properly falls
within the Guidelines’ range of 97-121 months. Thus, any
disparity between the sentences of Mr. Vaughn and his co-
conspirators does not render Mr. Vaughn’s sentence unreason-
able.
18 No. 05-1518
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-06