United States v. Sebastian Deptula ( 2018 )

NONPRECEDENTIAL DISPOSITION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
Argued October 2, 2018
Decided October 9, 2018
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17-3295
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 15-CR-188-1
SEBASTIAN DEPTULA,
Defendant-Appellant. Samuel Der-Yeghiayan,
Judge.
ORDER
Sebastian Deptula pleaded guilty to one count of wire fraud for his role in
orchestrating a wide-reaching scheme that defrauded credit card issuers, lenders, and
insurance companies out of more than $3.5 million. When calculating the advisory
Guidelines range, the district court increased Deptula’s base offense level because the
offense involved a misrepresentation during the course of a bankruptcy proceeding and
use of “sophisticated means.” Deptula now appeals his 156-month prison sentence,
arguing that the district court erred by not addressing either enhancement at sentencing
and by imposing an unreasonable sentence. Because Deptula waived the first argument
and his within-Guidelines sentence is substantively reasonable, we affirm.
No. 17-3295 Page 2
I
Between 2010 and 2014, Deptula facilitated a multifaceted scheme to fraudulently
obtain millions of dollars from credit card issuers, consumer loan providers, and
insurance companies. He recruited others to join in the credit card component of the
scheme in part by assuring them that they could later discharge accumulated debt by
filing a bankruptcy petition. The scheme worked as Deptula planned: sixteen recruits
maxed out multiple credit cards each and then declared bankruptcy to avoid
responsibility for the debts. Deptula and nineteen others were eventually caught and
charged in two separate indictments. Deptula was charged with ten counts of wire
fraud, 18 U.S.C. § 1343, and one count of mail fraud, id. § 1341. He pleaded guilty to one
count of wire fraud.
In the written plea agreement, the parties agreed that the district court should
increase Deptula’s base offense level of 7 by 2 levels because the offense involved at
least ten victims, U.S.S.G. § 2B1.1(b)(2)(A), and by 4 levels for his leadership role,
id. § 3B1.1(a). But Deptula opposed the government’s position that three other
adjustments based on specific offense characteristics applied: an 18-level increase
because the loss amount exceeded $3,500,000, id. § 2B1.1(b)(1)(J); a 2-level increase
because the offense involved a misrepresentation or other fraudulent action during the
course of a bankruptcy proceeding, id. § 2B1.1(b)(9)(B); and a 2-level increase for the use
of sophisticated means, id. § 2B1.1(b)(10)(C).
The probation officer who prepared the presentence investigation report
included all five offense-level increases in her Guidelines calculations for a total offense
level of 32, after accounting for acceptance of responsibility under U.S.S.G. § 3E1.1. In
his sentencing memorandum, Deptula objected to his criminal history category of II and
to the application of enhancements based on the number of victims and the loss
amount. But he did not object to the other two enhancements (for misrepresentation in a
bankruptcy proceeding or use of sophisticated means). In fact, Deptula calculated a
“Proposed Guidelines Range” that appears to have included these enhancements.
In advance of sentencing, Deptula highlighted that he has only one prior
conviction (for mortgage fraud) and has used his time in custody in a productive
manner (teaching yoga to other inmates). He also pointed to his strong connections with
family and friends in Poland, as evidenced by the many letters of support submitted to
the district court. As to the nature and circumstances of the offense, Deptula noted that
the fraud scheme involved no violence and harmed only institutional victims. Based on
No. 17-3295 Page 3
these facts and his inevitable deportation upon the completion of his sentence, Deptula
requested a sentence of 48 months in prison. For its part, the government argued that a
sentence at the upper end of the Guidelines range was appropriate based on the length
and scope of the scheme and Deptula’s “manipulative and self-centered character.”
At the sentencing hearing, the district court noted Deptula’s written objections to
the probation officer’s calculations of the loss amount, number of victims, and criminal
history category, and then asked Deptula and his counsel if they had “any other
objections or comments relating to the PSR.” One of Deptula’s attorneys said, “No
additional,” and Deptula too said, “No.” After hearing argument on each of the three
objections, the court found that the 18-level increase for loss amount was appropriate,
that the number of victims exceeded ten, and that a criminal history category of II was
proper. The court therefore adopted the probation officer’s calculation of an adjusted
offense level of 32 and a resulting advisory range of 135 to 168 months’ imprisonment.
The parties then presented argument on the 18 U.S.C. § 3553(a) factors, largely
reiterating the positions in their sentencing memoranda. In addressing the factors, the
district court considered Deptula’s modest criminal history, his conduct while in
detention, and the many letters of support. As to the serious nature of the offense, the
court noted that financial fraud undermines financial institutions, creates customer
insecurity, and necessitates the expenditure of significant government resources. The
court further acknowledged Deptula’s leadership role in the “complex and lengthy
scheme,” which caused millions of dollars in loss. While crediting Deptula’s decision to
plead guilty and accept responsibility, the court underscored the seriousness of his
offense conduct, noted the prior conviction for mortgage fraud, and agreed with the
government that Deptula exhibited a high likelihood of committing future crimes.
Based on these findings, the district court sentenced Deptula to 156 months’
imprisonment and ordered full restitution. The court considered the likelihood of
deportation in declining to order supervised release to follow the term of
imprisonment. After pronouncing the sentence, the judge asked: “Defense, did I cover
all of your arguments?” Counsel answered in the affirmative—“I believe so”—and
confirmed that there was “nothing further.”
II
Deptula now contends on appeal that the district court erred by not expressly
addressing at sentencing the offense-level increases for misrepresentation during a
No. 17-3295 Page 4
bankruptcy proceeding or use of sophisticated means. The government responds that
Deptula waived this argument and that, in any event, the district court did not plainly
err by not expressly discussing the factual basis for these enhancements at sentencing.
We agree on both points.
A
We have repeatedly held that when a defendant elects to pursue certain
sentencing arguments while forgoing others, he waives the arguments not presented.
See, e.g., United States v. Barnes, 883 F.3d 955, 957–58 (7th Cir. 2018); United States v.
Brodie, 507 F.3d 527, 531–32 (7th Cir. 2007); United States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001). Of course, this is not an inflexible rule. See United States v. Jaimes-Jaimes, 406
F.3d 845, 848 (7th Cir. 2005). But waiver is more readily found in cases where, as here,
the defendant had access to the PSR, knew of his right to object to the probation officer’s
recommendations, and confirmed at sentencing that all of his arguments in mitigation
had been addressed. See Brodie, 507 F.3d at 531; United States v. Syms, 846 F.3d 230, 234
(7th Cir. 2017); United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013).
In his sentencing memorandum, Deptula objected to three parts of the probation
office’s Guidelines calculation in the PSR: the loss amount, the number of victims, and
the criminal history category. Then, at the beginning of the sentencing hearing, Deptula
and his counsel both expressly confirmed that he was objecting to only these three
parts. This deliberate course of action evinces an intentional waiver. See Brodie, 507 F.3d
at 531 (“[The defendant] objected to certain parts of the PSR and stated on the record
that he did not have any further objections when asked by the district court. This seems
to us the paragon of intentional relinquishment.”). Further, after the district court
addressed the defense’s three objections and pronounced the sentence, Deptula’s
counsel confirmed that the court had addressed everything raised by Deptula. Based on
the record before us, we conclude that Deptula waived his right to challenge these
sentencing enhancements.
Even if we view Deptula’s argument as merely forfeited, the district court did
not plainly err by not discussing the offense-level increases for misrepresentation in a
bankruptcy proceeding and use of sophisticated means. See United States v. Olano,
507 U.S. 725, 731–36 (1993) (explaining forfeiture and defining plain-error review).
After addressing Deptula’s three objections, the court concluded that the PSR reflects
the appropriate total offense level and then adopted the probation officer’s calculations.
The court was not obligated to address parts of the PSR to which neither party had
No. 17-3295 Page 5
objected—and to which Deptula affirmed on the record that he did not object. “A party
may not by his own actions lull the court into believing that an express finding is
unnecessary and then object when it makes no such finding.” United States v. Walton,
255 F.3d 437, 442 (7th Cir. 2001). That is what Deptula attempts to do here.
In his reply brief, and citing United States v. Bokhari, 430 F.3d 861, 863 (7th Cir.
2005), Deptula contends that the district court’s obligation to make a “proper—and
explicit—determination of the total offense level and corresponding sentencing range”
is not subject to waiver or forfeiture. But Bokhari is inapplicable. There we vacated the
sentences because the district court “arrived at only an estimate of the total offense
level,” and it was unclear from the sentencing transcript whether the judge had granted
or denied the defendants’ objections to two sentencing enhancements recommended in
the PSR. 430 F.3d at 864. Here, however, the district court resolved each of Deptula’s
objections to the PSR and then, based on its findings, stated the total offense level,
criminal history category, and corresponding advisory sentencing range.
B
Deptula also challenges the substantive reasonableness of his 156-month
sentence on two grounds, but neither is sufficient to overcome the presumption of
reasonableness afforded a sentence within the advisory range. United States v. Miller,
834 F.3d 737, 744 (7th Cir. 2016).
First, Deptula contends that the record does not support the district court’s
findings about the impact of financial fraud, which the court considered in assessing the
seriousness of the offense and the need for the sentence to promote respect for the law.
See 18 U.S.C. § 3553(a)(2)(A). We disagree. The record contains ample support for the
court’s conclusion that financial fraud undermines financial institutions, creates
customer insecurity, and requires significant governmental resources to discover and
prosecute. In the plea agreement and at the plea hearing, Deptula admitted that the
fraud scheme affected multiple financial institutions over a more than four-year period.
And although Deptula disputed the probation officer’s loss calculation, he nevertheless
admitted in his sentencing memorandum that the total loss exceeded $1 million. The
sentencing judge was permitted to rely on these undisputed facts to draw common-
sense conclusions about the seriousness of the fraud. See United States v. Freeman,
843 F.3d 315, 319–21 (7th Cir. 2016). This includes drawing the reasonable inferences
that fraud schemes like Deptula’s divert government resources and undermine
confidence in financial institutions.
No. 17-3295 Page 6
Second, Deptula argues that the district court’s statement on the likelihood of
deportation contradicts its emphasis on deterring criminal conduct and protecting the
public from further crimes by Deptula. See 18 U.S.C. § 3553(a)(2)(B), (C). But the fact
that Deptula is likely to be deported after serving his prison sentence does not
undermine the court’s finding that there is a “definite need” to deter him and others
from committing fraud. See United States v. Ramirez-Fuentes, 703 F.3d 1038, 1048 (7th Cir.
2013) (explaining that, despite likelihood of deportation, defendant’s within-Guidelines
sentence was justified by the seriousness of the offense and the need to promote respect
for the law). In assessing the need for deterrence and public protection, the district court
weighed the length, scope, and complexity of the scheme; the substantial amount of
restitution that would be ordered; and the fact that Deptula’s previous conviction for
mortgage fraud did not deter him from engaging in additional fraudulent activity.
The district court also adequately considered Deptula’s mitigating argument that
he would no longer pose a danger in the United States because of the likelihood that he
would be deported. Although the court did not state how the potential for deportation
influenced the selection of a prison term, the court considered each of the § 3553(a)
factors before arriving at a within-Guidelines sentence. See Ramirez-Fuentes, 703 F.3d
at 1049 (“Although the district judge did not explicitly discuss his consideration of
Ramirez–Fuentes's deportation argument, he nevertheless demonstrated that he gave
meaningful consideration to the factors in § 3553(a) and to the claims that merited
comment.”). The district court also declined to impose any term of supervised release
precisely because Deptula would be deported following his term of imprisonment.
We see no reason to overturn this presumptively reasonable sentence on appeal.
For these reasons, we AFFIRM the judgment of the district court.