United States v. Elizabeth Robertson , 564 F. App'x 246 ( 2014 )


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  •                          NONPRECEDENTIAL DISPOSITION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 April 28, 2014 ∗
    Decided August 5, 2014
    Before
    JOEL M. FLAUM, Circuit Judge
    MICHAEL S. KANNE, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 13-3816
    UNITED STATES OF AMERICA,                         Appeal from the United States District
    Plaintiff-Appellee,              Court for the Northern District of
    Illinois, Eastern Division
    v.
    No. 09 CR 67-2
    ELIZABETH ROBERTSON,
    Defendant-Appellant.                Joan Humphrey Lefkow,
    Judge.
    ORDER
    After carrying out a mortgage fraud scheme with her husband, appellant
    Elizabeth Robertson pled guilty to wire fraud pursuant to a written agreement. See 18
    ∗
    After an examination of the briefs and the record, we have concluded that oral
    argument is unnecessary. Thus, the appeal is submitted on the briefs and the record to
    the panel that considered the appellant’s previous appeals. See Fed. R. App. P. 34(a)(2).
    No. 13-3816                                                                           Page 
    2 U.S.C. § 1343
    . In the agreement, Robertson acknowledged that the scheme caused the
    victim-lenders to lose approximately $742,000 and that she would be ordered to make
    full restitution under the Mandatory Victims Restitution Act. See 18 U.S.C. § 3663A. She
    was sentenced in 2011 to 41 months of imprisonment with two years of supervised
    release and ordered to pay $742,832 in restitution.
    Robertson and her husband appealed. We vacated their sentences and remanded
    for further consideration of unusual evidence of self-motivated rehabilitation during the
    twelve years between commission of the crime and sentencing. United States v. Robertson,
    
    662 F.3d 871
    , 879–80 (7th Cir. 2011). On remand in 2012, Mrs. Robertson received a
    shorter prison sentence of 30 months with the same supervised release and restitution.
    Mrs. Robertson and her husband appealed again. She argued—as she had
    unsuccessfully in her first appeal—that she should have been sentenced using the 1998
    Sentencing Guidelines (from the time of the crime) rather than the 2010 Guidelines (from
    the time of her sentencing). The 1998 Guidelines produce a lower advisory guideline
    sentencing range. While the second appeal was pending, the Supreme Court overruled
    this circuit’s prior case law (which the district court had followed) and held that using
    post-offense guidelines to establish a higher guideline sentencing range than would
    have applied under the guidelines in effect at the time of the offense violates the Ex Post
    Facto Clause of the Constitution. Peugh v. United States, 
    133 S. Ct. 2072
     (2013), overruling
    United States v. Demaree, 
    459 F.3d 791
     (7th Cir. 2006). We therefore vacated both
    Robertsons’ sentences again. United States v. Robertson, Nos. 12-1381 & 12-1383, ECF No.
    43 (7th Cir. Nov. 25, 2013). On remand, the district court resentenced Mrs. Robertson to
    time served and no supervised release, but it did not modify the restitution order.
    Mrs. Robertson has appealed a third time. She now challenges the restitution
    order, arguing that § 3663A violates the Sixth Amendment (or, if viewed as a civil
    penalty, the Seventh) by depriving the convicted defendant of a jury’s determination of
    restitution. But she did not contest restitution in her first sentencing appeal when the
    issue was ripe. “[A]ny issue that could have been but was not raised on appeal is
    waived.” United States v. Husband, 
    312 F.3d 247
    , 250 (7th Cir. 2002); see also, e.g., United
    States v. Locke, No. 11-3743, 
    2014 WL 3563360
    , at *4, ___ F.3d ___ , ___ (7th Cir. July 21,
    2014). The issue not raised on appeal is waived, not just forfeited, because the failure to
    raise an issue places it outside the scope of any remand. United States v. Barnes, 
    660 F.3d 1000
    , 1006 (7th Cir. 2011); Husband, 
    312 F.3d at
    250–51.
    Mrs. Robertson counters that her argument could not have been waived because
    she claims an as-yet-unrecognized right to have a jury determine the amount of
    No. 13-3816                                                                           Page 3
    restitution. She argues that she could not have waived a right that did not and does not
    yet exist. This circular logic does not save her appeal. The critical Supreme Court
    decisions underlying her argument had been decided before either of the previous
    sentencing appeals. See United States v. Booker, 
    543 U.S. 220
     (2005); Apprendi v. New Jersey,
    
    530 U.S. 466
     (2000). If Mrs. Robertson had an objection to the restitution order, the time
    to make it was as part of her first appeal.
    Since Mrs. Robertson’s only argument in this appeal was waived three years ago,
    the judgment is AFFIRMED.