United States v. Charnpal Ghuman ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 19-1734 & 19-1745
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARNPAL GHUMAN and AGA KHAN,
Defendants-Appellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cr-00816 — John J. Tharp, Jr., Judge.
ARGUED APRIL 7, 2020 — DECIDED JULY 16, 2020
Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. Charnpal “Paul” Ghuman and Aga
Khan participated in a multi-million dollar bank fraud scheme
in which they helped to create fraudulent loan applications in
order to convince a bank to issue mortgages to unqualified
individuals who were purchasing gasoline stations from them.
Both men pleaded guilty to one count of bank fraud, see 18
2 Nos. 19-1734 & 19-1745
U.S.C. § 1344; Ghuman also pleaded guilty to one count of
filing a false tax return, see 26 U.S.C. § 7206. Ghuman challenges
the district court’s decision to deny him credit for acceptance
of responsibility, see U.S.S.G. § 3E1.1, and the imposition of a
three-year term of supervised release on his false tax return
conviction. Khan challenges the restitution he was ordered to
pay. We affirm with one correction to Ghuman’s sentence.
I.
Defendants Ghuman and Khan were among several
individuals who perpetrated a scheme to defraud American
Enterprise Bank (“AEB”) beginning in 2006 and lasting until
2009. The two men had become friends in high school and
eventually went into business together. Initially, they were
partners in a chain of cell phone stores, and then they expanded
their investments to include gas stations. Khan devoted the
majority of his time to managing the cell phone stores, whereas
Ghuman primarily managed the gas stations. Beginning in
2006, they began to “flip” gas stations: acquiring the stations
and then re-selling them at a profit. As the scheme developed,
Ghuman would line up a buyer for a given station before he
and Khan had even purchased that station.
The charged scheme involved the resale of some 44 gas
stations in the Midwest to buyers whom Ghuman and Khan
had recruited. The buyers were in a number of instances
purchasing multiple stations (at Ghuman’s urging), and yet
they lacked the financial wherewithal to qualify for the loans
necessary to make these purchases. Knowing that their buyers
would not be approved for loans based on the facts, Ghuman
and Khan relied on the cooperation of their co-defendant, AEB
Nos. 19-1734 & 19-1745 3
loan officer Akash Brahmbhatt (to whom they gave cash,
automobiles, and airline tickets as inducement), to arrange for
the loans based on fraudulent documentation as to the buyers’
income, assets, and contributions of equity to the transactions.
Brahmbhatt, for example, after obtaining a buyer’s personal
identifying information, would typically prepare a personal
financial statement, management resume, and personal history
that contained false information about the buyer’s financial
assets, citizenship status, education, and work history—all
designed to make the buyer look more qualified for loans than
he or she was in fact. Similarly, Ghuman in some instances
prepared falsified bank statements inflating the buyer’s cash
holdings to submit in support of the loan applications. And
when Ghuman was selling a number of Kum & Go gas stations,
he fashioned a set of financial statements for those stations out
of whole cloth after Brahmbhatt told him the limited available
data on those stations was insufficient. In one or more in-
stances, Ghuman also created fraudulent subordination
agreements, signed by non-existent gas station landlords,
purporting to give the bank priority in payments from the
stations. Finally, co-defendant Shital Mehta, an accountant,
prepared fictitious (never-filed) tax returns inflating the buyers’
income (typically to a range of $50,000 to $60,000) that were
likewise submitted to the bank.1
The loans were guaranteed by the Small Business Adminis-
tration, and a material condition of the loans was that the
1
Mehta incorporated some of the business entities that took title to the
purchased stations and also performed payroll and tax services for certain
of the buyers.
4 Nos. 19-1734 & 19-1745
buyers provide a certain amount of equity through down
payments. The submitted loan paperwork made it appear
(falsely) that the buyers had the funds to make these contribu-
tions. In some instances, Ghuman scanned, electronically
altered, and then re-printed checks (occasionally checks that the
buyers had previously tendered for other purposes) to make it
look as though the buyers were supplying the funds, when in
fact no such equity was ever provided. In other instances, Khan
and Ghuman provided the equity payments themselves, and
recouped the funds when the sales closed. In these instances,
gift letters were prepared indicating (falsely) that the buyers
had received the equity funds as gifts from relatives.
Where buyers were acquiring multiple gas stations, they
were encouraged to find family members and friends who
would co-sign and guarantee the loans. (In some instances,
Ghuman recruited his own relatives for this role.) These
individuals were then designated as the nominal buyers of the
stations, although they had no genuine intent to own, possess,
or run the stations. They were, for all intents and purposes,
sham buyers. False documentation was then prepared to make
it appear as though these individuals had the requisite where-
withal to qualify for the loans.
When the loans were issued and the gas stations were sold
to the buyers, Khan and Ghuman split the proceeds of each
sale, which of course were funded by the loans from AEB. AEB
ultimately issued more than $38 million in loans as part of the
scheme.
Not surprisingly, given the limited financial resources and
experience of the buyers, the loans went into arrears before
Nos. 19-1734 & 19-1745 5
long. The buyers were typically able to make loan payments for
a year or two (in some instances with help from Ghuman)
before defaulting.
The scheme came to an end in late 2008-early 2009 when the
SBA began auditing the AEB loans and the FBI began looking
into suspected bank fraud. AEB ultimately incurred a loss in
excess of $14 million from the scheme.
Shortly after they learned from Brahmbhatt in April 2009
that an AEB employee had been interviewed by the FBI, Khan
and Ghuman fled to India. Neither of them returned to the U.S.
until 2011. Although both men deny having any substantial
assets in India, it appears possible that they might. There is
evidence that they discussed moving $2 million in funds to
India in advance of their flight. And personal financial state-
ments that Ghuman prepared in 2008 and 2009 indicated that
he had more than $2 million in bank accounts there and that he
owned two properties valued at more than $7.5 million. R. 297-
12. Likewise, Khan informed the government in his proffer that
he and Ghuman had invested in properties in India, including
an apartment building.
Khan and Ghuman were indicted in 2013. Both were
charged with multiple counts of bank fraud, in violation of 18
U.S.C. § 1344, and bank bribery, in violation of 18 U.S.C. § 215;
Ghuman was also charged with filing a false tax return, in
violation of 26 U.S.C. § 7206. Khan cooperated with the
government and ultimately pleaded guilty to one count of bank
fraud (Count 18) in connection with a $331,000 loan by AEB to
finance the 2008 purchase of a gas station in New Boston,
Illinois. Ghuman pleaded guilty to another count of bank fraud
6 Nos. 19-1734 & 19-1745
(Count 1) in connection with a $744,000 loan by AEB to finance
the 2007 purchase of a gas station in McComb, Illinois.
Ghuman also pleaded guilty to one count of filing a false tax
return (Count 23) which substantially understated his income
for the calendar year 2006.
At sentencing, the district court denied Ghuman credit for
acceptance of responsibility pursuant to Guidelines section
3E1.1, reasoning that Ghuman had both failed to admit his
central role in the bank fraud scheme and falsely denied
conduct manifesting that role. The court ordered Ghuman to
serve a below-Guidelines prison term of 66 months on the bank
fraud charge and a concurrent term of 36 months on the false
tax return charge, along with concurrent three-year terms of
supervised release on each of those charges. The court ordered
Khan to serve a 36-month term in prison, followed by a three-
year term of supervised release. After finding that AEB had
suffered a loss, for restitution purposes, of $14.3 million,2 the
court also ordered Ghuman to pay $11.8 million and Khan to
pay $10.8 million in restitution, $9.8 million of which was a
joint and several obligation.
2
In a separate calculation to determine the defendants’ offense level
pursuant to U.S.S.G. § 2B1.1, the court put the net loss to AEB at $8.4
million. That calculation gave the defendants the full benefit of the market
value of the collateral that had been returned to the bank at the time of
sentencing, regardless of whether the collateral had been sold.
Nos. 19-1734 & 19-1745 7
II.
A. Ghuman – acceptance of responsibility.
Application note 3 to section 3E1.1 provides that “[e]ntry of
a plea of guilty prior to the commencement of trial combined
with truthfully admitting the conduct comprising the offense
of conviction, and truthfully admitting or not falsely denying
any additional relevant conduct for which he is accountable
under section 1B1.3 (Relevant Conduct) (see Application Note
1(A)) will constitute significant evidence of acceptance of
responsibility.” Ghuman argues, in essence, that because he
truthfully admitted the acts underlying the bank fraud charge
to which he pleaded guilty and acknowledged his participation
in the overall scheme to defraud the bank, his lawyer admitted
that he played a central and essential role in that scheme, and
he did not falsely deny any aspect of that offense or any
relevant conduct, he was entitled to a two-level credit for
acceptance of responsibility. But given the extent to which
Ghuman affirmatively downplayed his role in the bank fraud
scheme and denied culpability for certain aspects of the fraud,
the district court committed no clear error in finding that
Ghuman had not genuinely accepted responsibility.
Judge Tharp gave a lengthy and detailed account,
occupying 18 pages of the sentencing transcript, explaining
why he was denying the section 3E1.1 reduction. Judge Tharp
stressed that although Ghuman, in pleading guilty, had
admitted that he was part of the scheme to defraud the bank,
the only specific conduct he took responsibility for was
supplying false information regarding the source of the equity
payments in the loan underlying the count to which he pleaded
8 Nos. 19-1734 & 19-1745
guilty. That was enough to establish his guilt on that charge,
but not his full role in the scheme.
[I]t is absolutely clear to the Court that Mr. Ghuman
was at the center of this scheme. He was, if you will,
driving the car. Mr. Ghuman, along with Mr. Khan,
were the principal beneficiaries of this scheme … .
It’s very doubtful that this crime would have
occurred, at least not on this scale, but for the actions
of Mr. Ghuman.
R. 423 at 26–27. Ghuman was not required to affirmatively
admit relevant conduct, Judge Tharp agreed, but the scope of
the fraudulent scheme and Ghuman’s role in it were matters
encompassed by the offense to the crime of conviction.
Ghuman’s attorney represented to the court that Ghuman did
acknowledge being an integral and major player in the broader
scheme, and if that were true, the judge agreed, Ghuman
would be entitled to credit for acceptance of responsibility. But
it was not true: Ghuman had made no real acknowledgment of
the conduct that made him a central figure in the scheme, and
had, in fact, falsely denied much of that conduct.
Judge Tharp cited a range of actions that Ghuman had
taken in furtherance of the scheme. These included:
– recruiting potential buyers, whom he
“pushed and convinced and enticed and
cajoled” to acquire multiple gas stations (R.
423 at 33);
– recruiting straw buyers as needed for the
loans;
Nos. 19-1734 & 19-1745 9
– coaching buyers to take the steps necessary to
obtain their loans;
– providing false bank statements on behalf of
the buyers;
– creating the fraudulent equity checks to make
it appear that buyers were complying with
SBA requirements;
– recruiting Mehta to prepare fictitious income
tax returns;
– with Khan, bribing Brahmbhatt with “boxes
of cash” and automobiles (R. 423 at 36);
– providing buyers with the names of corporate
entities that would take ownership of the gas
stations, and assigning relatives as guarantors
of the loans; and
– discussing the destruction of evidence.
R. 423 at 30–38. These were the actions that exemplified
Ghuman’s central role in the scheme.
Yet, Ghuman’s statements to the Probation Officer and to
the Court, while paying lip service to his guilt, “backpedal[ed]
and backpedal[ed] and backpedal[ed]” in terms of his relative
culpability and the specific actions he took in furtherance of the
scheme. R. 423 at 29. His version of the offense was
“emblematic of the problem.” R. 423 at 24. Not until 12 pages
into that document was there a discussion of what Ghuman
was responsible for. A substantial portion of the document was
devoted to arguing that the bank bore substantial responsibility
10 Nos. 19-1734 & 19-1745
for the success of the scheme. Judge Tharp acknowledged that
there was “plenty of blame to go around,” and that the bank
indeed bore some responsibility. R. 423 at 26. Yet, the bank had
not operated in bad faith, and it had in place controls and
checks that the defendants had made efforts to work around.
More to the point, Ghuman’s version of the offense attempted
to minimize his own culpability by portraying himself as more
of a diffident, go-along participant in the fraud who did not
think it was his business to tell Brahmbhatt and his other co-
schemers it was wrong to use fraudulent information in order
to secure the SBA loan guarantees. But “[t]his was his business.
He was the one bringing these folks to Mr. Brahmbhatt to get
the loans.” R. 423 at 29 (emphasis ours). Similarly, Ghuman had
told the Probation Officer that it “took [him] a while to
understand that this was a huge criminal act” (R. 423 at 31)
when Ghuman was a driving force behind the fraud. Apart
from minimizing his role, Ghuman had also falsely denied a
number of actions attributed to him by others: including
recruiting buyers, altering documents, and suggesting the use
of straw buyers. And, ultimately, he had fled to India for more
than a year after the FBI began interviewing witnesses to the
fraudulent scheme.
Judge Tharp acknowledged that Ghuman had expressed
remorse, and had made some preliminary payments toward his
restitution obligation. On the other hand, his affidavit
concerning his assets raised questions and was not, in the
judge’s view, a full and truthful accounting of his holdings.
Ultimately, the judge concluded, Ghuman had not fully
acknowledged either his degree of culpability or the scope of
harm that his actions had caused.
Nos. 19-1734 & 19-1745 11
Given the record, Judge Tharp was more than justified in
reaching this conclusion.3 A defendant merits a reduction
pursuant to Guidelines section 3E1.1 when he “clearly
demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). Truthfully admitting the conduct
underlying the offense of conviction will go some way toward
establishing a defendant’s acceptance of responsibility; a
defendant is not required to admit relevant conduct beyond the
offense of conviction, so long as he does not “falsely den[y] or
frivolously contest[ ]“ such conduct. Id. comment. (n.1(A)). But
a timely admission of guilt does not alone entitle a defendant
to credit for acceptance of responsibility; it may, in the end, be
outweighed by other conduct that is inconsistent with a
genuine acceptance of culpability for the crime one has
committed. Id.
Ghuman pleaded guilty to the commission of bank fraud in
violation of § 1344, a key element of which is a scheme to
defraud the bank. United States v. LeBeau, 949 F.3d 334, 341 (7th
Cir. 2020), pet’n for cert. filed (U.S. June 26, 2020) (No. 19-1424);
United States v. Ajayi, 808 F.3d 1113, 1119 (7th Cir. 2015). That
same scheme underlay all 19 counts of bank fraud alleged in
the indictment, and although Ghuman pleaded guilty to only
one of those counts (the others would constitute relevant
conduct, see U.S.S.G. § 1B1.3, comment. (nn. 3, 5(B)), the district
court could reasonably expect Ghuman to acknowledge his role
3
Given the detail and care with which the judge articulated his findings
on this point, Ghuman’s suggestion that the court did not adequately
explain his decision to deny him credit for acceptance of responsibility is
a non-starter.
12 Nos. 19-1734 & 19-1745
in that scheme. See United States v. Jones, 52 F.3d 697, 701 (7th
Cir. 1995) (“the district court was on solid ground in denying
that reduction once it found that Jones had not fully admitted
the extent of her participation in the fraudulent scheme”)
(collecting cases); United States v. Ali, 619 F.3d 713, 720 (7th Cir.
2010) (“blaming someone else for one's own actions or
minimizing one's involvement in the offense is not the sort of
genuine contrition the acceptance of responsibility reduction
seeks to reward”); United States v. Fiore, 178 F.3d 917, 925–26
(7th Cir. 1999) (“Sentencing courts must look beyond
formalistic expressions of culpability and determine whether
the defendant has manifested an acceptance of responsibility
for his offense in a moral sense.”); United States v. Zaragoza, 123
F.3d 472, 480–81 (7th Cir. 1997), retreated from on other grounds,
United States v. Blaylock, 413 F.3d 616, 620–21 (7th Cir. 2005);
United States v. Pitz, 2 F.3d 723, 732 (7th Cir. 1993). Put another
way, the district court was not requiring Ghuman to admit
conduct beyond the offense of conviction: The overall scheme
to defraud the bank, and Ghuman’s role in that scheme, were
part and parcel of the charge of bank fraud to which he
pleaded guilty.
Ghuman relies on his attorney’s statement that Ghuman
“admits that he was an integral, a major player in this scheme,
no question about that” (R. 453 at 173) as proof that he did
acknowledge his role in the scheme; but we cannot fault the
district court for finding the attorney’s statement insufficient to
constitute a genuine acknowledgment of Ghuman’s culpability.
Ghuman’s own statements, as we discuss below, were
inconsistent with an admission that Ghuman was an instigator
and central player in the scheme. Moreover, as Judge Tharp
Nos. 19-1734 & 19-1745 13
pointed out, Ghuman expressly (and falsely) denied a number
of the actions that made him an integral part of the scheme.
Judge Tharp aptly characterized Ghuman’s version of the
offense as being “emblematic of the problem here.” R. 423 at
24. The first 11 pages of that version are devoted to the bank,
highlighting AEB’s “egregious” judgment (R. 423 at 87) in re-
hiring Brahmbhatt (after he briefly worked in 2007 for another
bank) and promoting him to the head of the SBA loans division
and faulting the bank for not having the oversight and
safeguards in place that might have defeated the scheme
Brahmbhatt and the other defendants perpetrated. Only after
that take-down of AEB does Ghuman turn to his own
wrongdoing. Ghuman admits that he participated in a plan to
use fraudulent information to secure SBA guarantees, “even
though he knew it was illegal.” R. 347 at 99. He admits
knowing that some gas station purchasers were submitting
loan applications that included false information, that he
signed statements indicating that the buyers were providing
equity in the purchased stations when he knew they were not,
and that in some instances, he provided the equity from his
own funds to give the false appearance that the buyers were
providing the required equity. R. 347 at 99–100. Ghuman then
goes on to dispute certain aspects of the government’s version
of the offense, asserting that it “vastly overstates Ghuman’s
role in this scheme and minimizes the conduct of
others—particularly Brahmbhatt.” R. 347 at 100. Ghuman
specifically denies that he recruited two of the buyers, Ish
Oberoi and Mohammad Ali, that he altered documents and
falsified loan applications, or advised others to use straw
buyers (including their family members). Finally, ending where
14 Nos. 19-1734 & 19-1745
he began, Ghuman goes so far as to assert it was “unlikely AEB
relied on the information Brahmbhatt and others submitted
when issuing the loans in question, “ and that although
Ghuman and his co-defendants were guilty of a crime, the true
victim of that crime was the SBA rather than AEB. R. 347 at
101.
We reject Ghuman’s assertion that the district court
misunderstood and mischaracterized his version of the offense.
Certainly it is true, as Ghuman has been at pains to point out,
that AEB was culpable for the nearly blind faith it placed in
Brahmbhatt and for its failure to more aggressively monitor the
SBA loan approval process. But the fraud was one perpetrated
by Ghuman and his cohorts, not the bank. At best, Ghuman’s
account of the scheme represents an incomplete
acknowledgment of Ghuman’s role in the offense. Beyond
acknowledging Ghuman’s guilty knowledge that false
information was being given to the bank, the only actions in
furtherance of the scheme that he admits are signing statements
indicating the buyers of the gas stations were contributing the
requisite equity to the purchases and that in some instances
Ghuman was funding those equity checks himself. Much more
exposition in Ghuman’s version is devoted to blaming the bank
for mismanaging its affairs in such a way that opened the door
to the success of the scheme that Ghuman and his co-
defendants perpetrated. Ghuman, of course, bore the burden of
demonstrating to the district court that he accepted moral
responsibility for his criminal activity. E.g., United States v.
Smith, 860 F.3d 508, 516 (7th Cir 2017). “[Defendant]’s grudging
and incomplete admission, accompanied by an excuse to
minimize his own culpability, does not indicate an acceptance
Nos. 19-1734 & 19-1745 15
of responsibility.” United States v. Aquilla, 976 F.2d 1044,
1053–54 (7th Cir. 1992); see also Jones, 55 F.3d at 295; United
States v. Rosalez-Cortez, 19 F.3d 1210, 1219–20 (7th Cir. 1994).
Ghuman’s version of the offense can readily be characterized
as a grudging and incomplete acceptance of responsibility for
the actions he took in furtherance of the offense, accompanied
by finger-pointing at the bank for not making it more difficult
for Brahmbhatt, Ghuman, and the other defendants to
perpetrate the multi-million dollar fraud on the bank.
Ghuman admits that he knew that buyers were including
false information in the loan applications they submitted to the
bank. “Ghuman told himself that this was not his business, but
he now understands that he should not have entered into the
transaction in such cases.” R. 347 at 99. Likewise, Ghuman told
the probation officer, “It took me a while to understand, but
this was a huge criminal act.” R. 347 at 10. These sorts of state-
ments read as though Ghuman simply went along with the
wrongs perpetrated by Brahmbhatt, who shepherded the
fraudulent loan applications through the bank’s approval
process, and the buyers, who submitted loan applications laden
with false information.
But the record supports the district court’s findings that
Ghuman did much more than accede to and join in with the
wrongdoing perpetrated by co-defendants. He recruited buyers
and cajoled them into buying multiple stations, which was
obviously to the benefit of himself and Khan as the sellers of
the stations. He embraced Brahmbhatt’s invitation to
circumvent the lending criteria imposed by the bank and the
SBA, and bribed him in order to do so. He coached buyers on
what they needed to do. He not only supplied equity on behalf
16 Nos. 19-1734 & 19-1745
of buyers in some instances, as he admitted in his version of the
offense, but, according to Khan, used computer software in
other instances to alter checks from the buyers (or their co-
signors) in order to give the same impression. He recruited
(and encouraged the use of) straw buyers. He provided false
bank statements to inflate buyers’ assets. And he recruited
Mehta to draft false tax returns to again give a false picture of
the buyers’ financial status.
Ghuman has denied many of these actions, and given the
evidence before the district court, Judge Tharp did not clearly
err in treating these as false denials. Whether these actions are
deemed relevant conduct or inherent in the scheme which
underlay his plea of guilty, Ghuman’s false denials themselves
support the district court’s decision to deny him credit for
acceptance of responsibility.
Ghuman also told the probation officer that one of the
purposes of his 2009-11 stay in India was to seek medical
treatment. R. 347 ¶ 86. The district court found that this was a
lie, and that Ghuman had really fled this country for India in
order to evade prosecution for the crimes which were then
under investigation. R. 423 at 37. Again, the record supports
this finding. Khan, for example, told the government that
Ghuman had no medical condition which necessitated his
departure for India. R. 297-2 at 14. Ghuman’s statements to the
probation officer regarding his flight to India were yet another
misrepresentation of what he had done and likewise support
the district court’s finding as to acceptance.
The district court’s findings as to what Ghuman did were
based in part on the the grand jury testimony of Brahmbhatt
Nos. 19-1734 & 19-1745 17
and Mehta, the proffer of his co-defendant Khan, and the grand
jury testimony of two young gas station purchasers, Ali and
Oberoi. Noting his due process right to be sentenced on the
basis of reliable information, e.g., United States v. Helding, 948
F.3d 864, 870 (7th Cir. 2020) (citing United States v. Tucker, 404
U.S. 443, 447, 92 S. Ct. 589, 592 (1972)), Ghuman argues that he
was deprived of the opportunity to contest the credibility and
reliability of these materials before the court based key findings
upon them. We disagree.
The record indicates that the government provided copies
of the proffer and grand jury transcripts to defense counsel and
later submitted them to the probation officer in conjunction
with the government’s sentencing memorandum; the probation
officer in turn attached them to a supplement to the pre-
sentence report. R. 296. Consequently, Ghuman had the
opportunity to address the credibility and reliability of these
materials prior to sentencing but did not take advantage of that
opportunity.4 On consideration of the grand jury transcripts
and the proffer, the court found them to be credible. R. 423 at
30, 35. Ghuman contends that not until the court relied on them
did he have any reason to object, but this is plainly wrong.
Ghuman had access to these materials, he knew what the
4
In his objections to the pre-sentence report, Ghuman represented that
his counsel had not been placed on notice that the government had
submitted these materials to the probation officer. R. 299 at 2. However,
the government pointed out in response that it had previously produced
the materials to defense counsel and had copied counsel on the
transmittal of the materials to the probation officer. R. 322 at 2–3. The
government’s sentencing memorandum also quoted from these materials
at some length. R. 297.
18 Nos. 19-1734 & 19-1745
government was relying on them for, and he knew that the
district court might choose to rely on them. He was bound to
object in a timely manner if he believed the district court
should not rely on them, and he was instead silent on this
point. It is too late in the day to be saying that the court could
not properly rely on these materials. Certainly there was no
plain error in the court choosing to credit them and to factor
these sources into its finding as to acceptance of responsibility.
B. Ghuman—erroneous term of supervised release.
The court imposed a term of three years of supervised
release on the false tax return count (Count 23), to be served
concurrently with the three-year term on the bank fraud count
to which Ghuman had pleaded guilty (Count 1). A three-year
term was permissible as to the bank fraud count, but one year
is the statutory maximum on the tax fraud count. Section
7206(1) is categorized as a Class E felony because the maximum
prison term on that charge is three years, and the maximum
term of supervised release for a Class E felony is one year. See
18 U.S.C. §§ 3581(b)(5) (deeming Class E felony as one subject
to maximum prison term of three years); 26 U.S.C. § 7206
(setting three years as maximum term of imprisonment for
false tax return); 18 U.S.C. § 3583 (b)(3) (limiting term of
supervised release on Class E felony to maximum of one year).
Ghuman did not raise the issue below, so our review is for
plain error only. See Rosales-Mireles v. United States, 138 S. Ct.
1897, 1904–05 (2018). To succeed on plain error review, a
defendant must show not only that an obvious error occurred,
but that the error affected his substantial rights. Id. The district
court erred, and plainly so, in imposing a term of supervised
Nos. 19-1734 & 19-1745 19
release on the tax fraud count that exceeded the statutory
maximum. The government nonetheless argues that Ghuman
was not prejudiced by the error, because the two terms of
supervised release are to run concurrently and a three-year
term is authorized as to the bank fraud count. See United States
v. Gray, 332 F.3d 491, 493 (7th Cir. 2003). However, Ghuman
has made a plausible case that there still could be material,
adverse consequences to him in the future if the error is not
corrected– for example, in a revocation proceeding prompted
by a charge that he violated the terms of his supervised release,
which might lead to the imposition of another prison term
(including consecutive terms) imposed on both periods of
supervised release.
To foreclose that possibility, we may correct the judgment
ourselves to modify the term of supervised release on the tax
return count to a term of one year. See, e.g., United States v.
Smith, 906 F.3d 645, 651 (7th Cir. 2018). Ghuman has suggested
that we should instead remand for re-sentencing, but we are
not convinced that a remand is necessary. The district court
imposed the maximum possible term of supervised release
(three years) on the bank fraud charge and the maximum
possible prison term on the tax return charge (three years),
along with what it believed (in error) to be the maximum
probationary term of three years. We have no doubt that the
court would have imposed the maximum possible term of
supervised release (one year) on the latter charge.
20 Nos. 19-1734 & 19-1745
C. Khan restitution – refusal to offset restitution by value of
collateral still held by bank.
As the bank loans that are the subject of this case went into
default and AEB foreclosed on those loans, it took possession
of the gas stations that were the collateral on the loans; the
bank was able to sell some of those properties, but it held onto
a dozen of the stations that it was unable to sell for a
reasonable price. In calculating Khan’s restitution obligation
($10.8 million), the court gave him credit only for the collateral
that the bank had already sold. Khan argued that he should
have additionally been given credit for the collateral that the
bank had not yet sold. The district court rejected this argument,
concluding it lacked the authority to credit Khan for the value
of the unsold properties in view of the Supreme Court’s
decision in Robers v. United States, 572 U.S. 639, 134 S. Ct. 1854
(2014).
The district court was correct. This case is governed by the
Mandatory Victims Restitution Act of 1996 (“MVRA”), which
in relevant part provides that a defendant should be credited
for the return of stolen property in the restitution calculation.
18 U.S.C. § 3663A(b)(1)(B). Robers holds more specifically that
for purposes of determining a defendant’s restitution
obligation in a bank fraud case like this one, the defendant is
credited for the amount of money the bank (as victim) receives
when it sells the collateral, because only then is the property
previously taken from the bank—i.e. the money obtained by
fraud— restored to the bank’s possession. Id. at 640–41, 134 S.
Ct. at 1856. The defendant in Robers contended that he should
instead be credited with the value of the collateral at the time
Nos. 19-1734 & 19-1745 21
the bank takes title to the collateral—an argument he made
because property values were falling and by the time the bank
sold the collateral, it was worth less than when the bank took
possession of the properties. But the Court rejected that
argument, concluding that the relevant value is the value at the
time the collateral is sold by the bank. Ibid., see also id. at 644,
134 S. Ct. at 1858.
In the course of its analysis, the Court adverted to the
scenario presented here, where a victim takes possession of the
collateral but is not able to sell it by the time the defendant is
sentenced, thus depriving the defendant of credit against his
restitution obligation for the value of the collateral. Robers
noted that the sentencing court was not without some tools to
address the potential unfairness to the defendant in this
scenario, including delaying the determination of the
restitution amount for a short period of time following
sentencing in order to give the victim additional time to
liquidate the collateral or crediting the defendant for the value
of the collateral if the victim has decided to keep it. Id. at 644,
134 S. Ct. at 1858 (citing 18 U.S.C. § 3664(d)(5), (f)(2), (f)(3)(A),
and (f)(4). “And the Government has conceded that the statute
(whether through these or other provisions) provides room for
credits against an offender’s restitution obligation to prevent
double recovery to the victim.” Id. at 645, 134 S. Ct. at 1858
(cleaned up) (citation omitted). A concurrence by Justice
Sotomayor (joined by Justice Ginsburg) makes explicit that
because real property is an illiquid investment, it may not be
possible in every case for the bank to sell the collateral before
sentencing and the imposition of restitution; and so long as the
bank has not decided to hold onto the collateral indefinitely as
22 Nos. 19-1734 & 19-1745
an investment, a defendant is not entitled to credit at
sentencing for the value of the collateral against his restitution
obligation. Id. at 647–49, 134 S. Ct. at 1859–60 (Sotomayor, J.,
concurring). “In such cases, I would place on the defendant the
burden to show—with evidence specific to the market at
issue–that a victim delayed unreasonably in selling collateral,
manifesting a choice to hold the collateral.” Id. at 649, 134 S. Ct.
at 1861.
Here, Khan points to no evidence that the bank decided to
hold the properties in question as an investment as opposed to
being unable to sell the properties immediately at a reasonable
price—and indeed, the district court rejected the notion that the
bank had made an affirmative decision to hold onto these
properties as an investment. R. 451 at 12–14. So the court was
correct not to credit Khan for the value of the unsold properties
in calculating his restitution obligation.
Relatedly, Khan also faults the district court for failing to
anticipate and provide for the future sales of the bank-held
collateral and corresponding reductions in his restitution
obligation. The government agrees that Khan’s restitution
obligation is subject to modification in the future if and when
the bank is able to sell the properties. Cf. United States v.
Dawson, 250 F.3d 1048, 1051 (7th Cir. 2001) (“were Dawson's
co-schemers to pay Rush Hospital any amounts in restitution,
we expect that the government would notify Dawson of that
occurrence so that she could properly file a request for
modification of restitution”) (citing § 3364(j)(2) (defendant
entitled to credit for “any amount later recovered as
compensatory damages for the same loss by the victim” in any
federal or state civil proceeding)). The district court itself
Nos. 19-1734 & 19-1745 23
acknowledged this possibility. R. 451 at 17. But the government
argues that Judge Tharp was not required to provide for such
modifications at the time of sentencing, not knowing if or when
such sales will occur.
The district court did not err in omitting from the judgment
any provision addressing the parties’ obligations in the event
the unsold collateral is finally liquidated by the bank at some
date in the future. In the briefing and at argument, Khan’s able
counsel suggested that, at a minimum, the bank should have
been ordered to notify the parties of such sales so that the
parties could take appropriate steps to modify Khan’s
restitution obligation. That certainly is a reasonable suggestion,
but given the extent to which real property sales can be
discovered through publicly-available sources, we do not think
the court was obligated to incorporate such a provision in the
judgment.
D. Khan—refusal to consider his financial circumstances in
determining his restitution obligation.
No one disputes that Khan does not, at present, have the
financial wherewithal to make good on the restitution
obligation—$10.8 million—that the district court imposed.
Khan asked the district court to consider his financial
circumstances when it determined the amount of restitution he
owed to the bank. But the court held that full restitution was
required and that it was without the authority to consider a
lesser amount based on Khan’s individual circumstances.
The district court again was correct. Given the terms of the
statute, “[t]he economic circumstances of a defendant cannot be
considered by the court when fixing the amount of the
24 Nos. 19-1734 & 19-1745
restitution.” United States v. Sensmeier, 361 F.3d 982, 988 (7th
Cir. 2004) (footnote omitted) (emphasis in original); see §
3664(f)(1)(A). As this court recognized in United States v. Day,
418 F.3d 746 (7th Cir. 2005), the MVRA elevates the victim’s
right to full restitution over the defendant’s ability to pay:
Congress, in adopting the MVRA, believed that
the law should be concerned first with the
victim's right to full restitution and the
defendant's concomitant recognition of the duty
to pay full restitution, albeit a largely symbolic
one. This belief is given effect through § 3664(f),
which first requires the court to order “restitution
to each victim in the full amount of each victim's
losses as determined by the court and without
consideration of the economic circumstances of
the defendant.” 18 U.S.C. § 3664(f)(1)(A).
Therefore, the fact that a defendant may never be
able to satisfy a restitution award is no longer
grounds for reversing that award.
Id. at 758 (footnote omitted). See also Dolan v. United States, 560
U.S. 605, 612, 130 S. Ct. 2533, 2539 (2010); United States v.
Malone, 747 F.3d 481, 485 (7th Cir. 2014); United States v.
Hosking, 567 F.3d 329, 333 (7th Cir. 2009), abrogated on other
grounds, Lagos v. United States, 138 S. Ct. 1684 (2018).
The district court does have the obligation to consider a
defendant’s financial obligations in determining how the
defendant will pay his restitution obligation—in a lump sum or
installments, for example—and on what schedule. § 3664(f)(2),
(f)(3); see Paroline v. United States, 572 U.S. 434, 485, 134 S. Ct.
Nos. 19-1734 & 19-1745 25
1710, 1742 (2014) (Sotomayor, J., dissenting); Hosking, 567 F.3d
at 335–36.
But we see no support in the record for Khan’s contention
that the court did not appropriately consider his financial
circumstances in setting a reasonable schedule for restitution
payments. The court, in fact, concluded that in view of Khan’s
circumstances, he should not be required to pay interest on his
restitution obligation. R. 395 at 2. In addition, the court, in lieu
of a lump-sum payment, ordered Khan, upon release from
prison, to commence making periodic partial payments equal
to 10 percent of his net income. R. 343 at 5. These provisions
indicate that the court was considering his economic
circumstances in laying out the manner and schedule of
restitution payments and establishing a realistic payment plan.
See Paroline, 572 U.S. at 485–87, 134 S. Ct. at 1742–43
(Sotomayor, J., dissenting) (acknowledging importance of
partial periodic payment schedules for defendants with limited
financial resources).
III.
The term of supervised release on Ghuman’s conviction for
filing a false tax return is reduced to one year. His sentence is
otherwise affirmed. We likewise affirm Khan’s sentence,
including the amount and terms of his restitution obligation.
We commend Judge Tharp for the extraordinary time,
consideration, and care he devoted to resolving the sentencing
issues presented in this case.