United States v. Barren, Demetrius , 219 F. App'x 560 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 March 20, 2007
Decided March 21, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3949
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 1:02-CR-00752
DEMETRIUS BARREN,
Defendant-Appellant. Joan B. Gottschall,
Judge.
ORDER
Demetrius Barren conducted a real estate scam in Chicago, where he bought
approximately 48 dilapidated houses, hired appraisers to inflate their value, and
resold them at much higher prices. Barren also falsified employment records and
earning statements to help buyers purchase houses despite insufficient income, and
forged at least one buyer’s signature on a real estate contract. The FBI caught on to
Barren’s scheme, and he was indicted on several counts of mail and wire fraud. See
18 U.S.C. §§ 1341, 1343. At trial complicit appraisers, mortgage brokers, and home
buyers testified about their involvement in the scheme. In 2005 a jury found
Barren guilty. After the verdicts, he moved for a judgment of acquittal or,
alternatively, a new trial, but both motions were denied. Barren was sentenced to a
total of 51 months’ imprisonment and ordered to pay $860,983 in restitution. He
No. 05-3949 Page 2
filed a notice of appeal, but his newly appointed appellate counsel moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he can not
discern any nonfrivolous arguments to pursue. Barren filed a response opposing his
attorney's motion. See Cir. R. 51(b). Our review is limited to the potential issues
identified in counsel's facially adequate brief and in Barren's response. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Barren might argue that the district court
improperly overruled the numerous objections Barren made during trial, in
particular during the government’s closing argument. We review rulings on
objections to evidence and argument for an abuse of discretion. See United States v.
Green, 258 F.3d 683, 693 (7th Cir. 2001); United States v. Ward, 211 F.3d 356, 365
(7th Cir. 2000). After reviewing the trial transcript, we agree with counsel that any
argument about the unsuccessful objections would be frivolous. The majority of
Barren’s objections challenged the government for asking leading questions during
its direct examination of witnesses, but in many cases the government was setting
forth background information, for example, confirming that the witness worked for
Barren. See Fed. R. Evid. 611(c) (permitting leading questions on direct
examination to develop witness’s testimony); United States v. O’Brien, 618 F.2d
1234, 1242 (7th Cir. 1980) (discussing Rule 611(c)). Barren also objected to portions
of the government’s closing argument, but could not explain the grounds for his
challenges. We therefore agree with counsel that arguments about the district
court’s rulings on objections would be frivolous.
Counsel next questions whether the district court erred in denying Barren’s
motion for a judgment of acquittal after the jury’s verdict. See Fed. R. Crim. P.
29(c). We review the denial of such motions de novo, but will reverse only if the
record is devoid of evidence from which a rational jury could find the defendant
guilty beyond a reasonable doubt. United States v. Alhalabi, 443 F.3d 605, 613 (7th
Cir. 2006). Given the incriminating testimony of the many participants in the
scheme, along with the falsified earnings and employment records Barren created
for home buyers, we agree with counsel that an argument concerning the motion for
a judgment of acquittal would be frivolous.
Counsel next considers challenging the guidelines loss calculation. A district
court’s finding on the amount of loss in calculating the guidelines range is reviewed
for clear error. See United States v. Al-Shahin, 474 F.3d 941, 950 (7th Cir. 2007).
To successfully challenge a district court’s loss calculation, a defendant must show
that the court’s determination was “‘not only inaccurate, but outside the realm of
permissible computations.’” United States v. Peterson-Knox, 471 F.3d 816, 822 (7th
Cir. 2006) (quoting United States v. Lopez, 222 F.23d 428, 437 (7th Cir. 2000)). In
an addendum to the presentence report, the probation officer calculated a loss
amount of $860,983 by adding the figures reported by HomEq Mortgage Loan
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Servicing, Bank of America, and Litton Loan Services. The probation officer stated
that mortgage companies that lent money for an additional 12 properties did not
provide loss information, so the loss total was undoubtedly understated. Given the
information in the presentence report, we could not conclude that the loss
calculation was outside the realm of permissible computations, and agree with
counsel that any argument regarding the loss finding would be frivolous.
Counsel also considers challenging the district court’s restitution award.
Barren did not object to the restitution amount during sentencing, so our review
would be for plain error. See United States v. Alburay, 415 F.3d 782, 789 (7th Cir.
2005). To calculate the restitution amount, the district court must determine the
loss caused by the crime, minus the value of any returned property. See United
States v. Leahy, 464 F.3d 773, 793 (7th Cir. 2006). We will disturb a restitution
order only if the district court relied upon inappropriate factors when it exercised
its discretion, or if it failed to exercise any discretion at all. See United States v.
Havens, 424 F.3d 535, 538 (7th Cir. 2005). In his Anders brief, counsel incorrectly
assumes that the loss calculations for purposes of the guidelines and for restitution
are necessarily equal, but restitution must be based on actual losses to specific
victims. See United States v. Seward, 272 F.3d 831, 839 (7th Cir. 2001); United
States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000); United States v. Minneman,
143 F.3d 274, 284-85 (7th Cir. 1998). Nevertheless, we could not find plain error on
this record. The loss amounts reported by the three restitution recipients roughly
approximate the total of their loans less the amounts that Barren paid for the
houses securing the loans, so it appears that the restitution that was awarded is
tied to actual losses. We therefore agree with counsel that any such challenges
would be frivolous.
Counsel last questions whether Barren might challenge the overall prison
sentence imposed. We review sentences imposed by the district court for
reasonableness. United States v. Acosta, 474 F.3d 999, 1001 (7th Cir. 2007). After
determining Barren’s total offense level to be 23 and his criminal history to be
Category Two, the district court sentenced him to 51 months’ imprisonment, the low
end of the advisory guidelines range. We agree with counsel that nothing in the
record supports a lower sentence under 18 U.S.C. § 3553, thus any potential
arguments about Barren’s sentence would be frivolous.
In his Rule 51(b) response, Barren first argues that 18 U.S.C. § 3231 was
never enacted, and thus the district court had no subject-matter jurisdiction in this
case. This argument is frivolous. See Derleth v. United States, No. 5:05-cv-205,
2006 WL 1804618, at *2-5 (S.D. Tex. June 27, 2006). Barren also contends that he
should not have been convicted of wire fraud under 18 U.S.C. § 1343 because, he
argues, his crimes did not involve interstate commerce. Section 1343 provides that,
“whoever, having devised . . . any scheme or artifice to defraud . . . transmits or
No. 05-3949 Page 4
causes to be transmitted by means of wire, radio, or television communication in
interstate or foreign commerce, any writings, signs, signals, pictures, or sounds . . .
shall be fined . . . or imprisoned not more than 20 years, or both.” 18 U.S.C. § 1343.
All four of the § 1343 counts involved communications—wire transfers or
faxes—between Chicago and locations out of state, so Barren’s execution of the
scheme satisfied the commerce element of the statute. See United States v. O'Brien,
119 F.3d 523, 532 (7th Cir. 1997). Therefore, this argument is also frivolous.
Accordingly, counsel's motion to withdraw is GRANTED and the appeal is
DISMISSED.