United States v. James Tibor , 397 F. App'x 242 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 21, 2010
Decided October 21, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-2882
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 904-1
JAMES M. TIBOR,
Defendant-Appellant. Suzanne B. Conlon,
Judge.
ORDER
James Tibor used Internet advertisements, phony documents, phone calls, and e-
mail to induce private investors to buy the rights to collect a civil judgment and receivables
he falsely represented were owed to him or a wholly owned corporation. Two investors
paid Tibor a total of $160,500 for nonexistent receivables, a third investor negotiated to buy
$50,000 in receivables, and a fourth agreed to pay $1.8 million for the bogus judgment
before concluding that the transaction was a scam. Tibor pleaded guilty to one count of
wire fraud, 18 U.S.C. § 1343, and was sentenced to 77 months’ imprisonment to run
consecutively to state sentences for unrelated crimes, plus 3 years’ supervised release and
$106,500 in restitution. Tibor appeals, but his appointed attorney has concluded that the
appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967).
Tibor did not respond to counsel’s submission. See C IR. R. 51(b). We review only the
No. 09-2882 Page 2
potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
Tibor has told counsel that he wants his guilty plea set aside, so counsel first
addresses whether there is a basis to challenge the plea colloquy or the voluntariness of the
plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Tibor did not move to
withdraw his guilty plea in the district court, so we would examine the plea colloquy only
for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Griffin, 521
F.3d 727, 730 (7th Cir. 2008). As counsel notes, the district court did not advise Tibor he
could be represented by appointed counsel if necessary, see FED. R. C RIM. P. 11(b)(1)(D), or
that he had a right to testify at trial, see FED. R. CRIM. P. 11(b)(1)(E). But even with those
omissions the plea colloquy satisfied the standard of substantial compliance with Rule 11,
see United States v. Blalock, 321 F.3d 686, 688 (7th Cir. 2003); Schuh, 289 F.3d at 975.
Moreover, Tibor knew about the availability of appointed counsel because he was
represented by the federal public defender during the plea colloquy, and he knew about his
right to testify because it was included in his plea agreement, so the court’s omissions
could not have been plain error. See United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001);
United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir. 1988). Thus, this potential challenge to
the adequacy of the plea colloquy would be frivolous.
Counsel additionally examines whether Tibor could argue that his guilty plea was
induced by a threat and thus involuntary. See Galbraith v. United States, 313 F.3d 1001, 1006
(7th Cir. 2002). When the district court asked Tibor if anyone was forcing him to plead
guilty, he replied that an associate of one of the victims had “made a threat against both me
and a member of my family in order—telling me that it was important for me to plead
guilty.” The court then asked if this perceived threat had affected Tibor’s decision, and he
answered that he was “going to have to say no.” That answer prompted the court to
admonish Tibor that he could say no and had a right to proceed to trial, and Tibor then
acknowledged that the threat had not weighed into his decision to plead guilty. Tibor
apparently has told appellate counsel that he felt threatened after all, but an appellate
challenge would be frivolous both because Tibor’s statements to counsel are outside the
record, see United States v. Acox, 595 F.3d 729, 731 (7th Cir. 2010) (“A court of appeals is
limited to the record built in the district court, so arguments that depend on extra-record
information have no prospect of success.”), and because the representations he made to the
court under oath during the plea colloquy are presumed to be truthful, see United States v.
Chavers, 515 F.3d 722, 724 (7th Cir. 2008); United States v. Weathington, 507 F.3d 1068, 1072
(7th Cir. 2007).
Counsel next evaluates whether Tibor could argue that his offense level under the
sentencing guidelines should have been calculated by starting with U.S.S.G. § 2X1.1, the
No. 09-2882 Page 3
Chapter 2 guideline applicable to attempt. Subsection (b)(1) of that guideline provides for a
3-level reduction if the defendant is being sentenced for a crime that was attempted but
never completed, and Tibor has expressed his view to appellate counsel that his fraud
crime was not completed because he never succeeded in bilking all of his intended victims.
But a wire fraud is complete when the scheme is executed through an interstate wire
communication, whether or not the defendant succeeds in defrauding the victim.
Pasquantino v. United States, 544 U.S. 349, 371 (2005); United States v. Lupton, 2010 WL
3419889, at *13 (7th Cir. 2010). And relevant conduct includes all attempted losses, not just
successes. United States v. Portman, 599 F.3d 633, 640 (7th Cir. 2010); United States v.
Radziszewski, 474 F.3d 480, 486 (7th Cir. 2007). So this potential argument would be
frivolous.
Counsel also evaluates whether Tibor could argue that the district court erroneously
applied, over his objection, a 2-level increase under U.S.S.G. § 2B1.1(b)(2)(A)(ii) for
committing the offense through mass-marketing. Though Tibor admitted to posting his
advertisement on only one website, the government presented unrebutted evidence that he
used several websites to solicit victims. The use of one website warrants the adjustment,
United States v. Hall, 604 F.3d 539, 544-45 (8th Cir. 2010); United States v. Christiansen, 594
F.3d 571, 576 (7th Cir. 2010), and Tibor’s reliance on several would make an appellate
challenge particularly frivolous.
Counsel then considers whether Tibor could challenge the reasonableness of his
prison sentence. The term is within the properly calculated imprisonment range, and thus
is presumptively reasonable. Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Diekemper, 604 F.3d 345, 355 (7th Cir. 2010). Appellate counsel has not identified any basis
to set aside that presumption, nor have we. The district court evaluated Tibor’s principal
arguments in mitigation—that he suffers from mental illness and that the loss amount was
overstated relative to the amount of money he actually received—but concluded that a
term within the guidelines range was appropriate both because Tibor had sought
significant amounts of money from the victims in this case and in previous scams and
because the psychologist’s report Tibor provided did not show that his conduct was caused
by a mental disorder that would obviate his personal responsibility for these scams. The
court did not explicitly address Tibor’s contention that his parents’ divorce, abuse by his
father, and his own two divorces warranted a lower sentence, but this contention was
relegated to a written memorandum and not pressed by Tibor at sentencing. More
importantly, stock arguments about family circumstances can be rejected without
discussion. United States v. Hall, 608 F.3d 340, 347 (7th Cir. 2010); United States v. Pulley, 601
F.3d 660, 667 (7th Cir. 2010); United States v. Martinez, 520 F.3d 749, 753 (7th Cir. 2008). And
finally, the court’s exercise of discretion to run the federal term consecutively to Tibor’s
undischarged state sentences for unrelated frauds could not make the federal sentence
No. 09-2882 Page 4
unreasonable. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c); United States v. Campbell, 2010 WL
3221830 at *2-3 (7th Cir. 2010); United States v. Statham, 581 F.3d 548, 555 (7th Cir. 2009). We
thus agree with counsel that a reasonableness challenge would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.