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United States v. Austin

United States Court of Appeals, Seventh Circuit

October 29, 2018

United States of America, Plaintiff-Appellee,
v.
Keith Austin, Defendant-Appellant.

          Argued October 22, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-cr-00761-1 - Charles R. Norgle, Judge.

          Before Flaum, Easterbrook, and Scudder, Circuit Judges.

          FLAUM, CIRCUIT JUDGE.

         Near the end of his jury trial, Keith Austin pleaded guilty to three counts of bank fraud, aggravated identity theft, and obstruction of justice. Austin now protests that his plea was not knowing and voluntary because the district court did not adequately discuss the Sentencing Guidelines and did not mention forfeiture. He also takes issue with the court's denial of the reduction for acceptance of responsibility and the use of the incorrect Guidelines range, as well as the sufficiency of the evidence supporting the district court's loss calculation, restitution amount, and forfeiture order. For the reasons below, we affirm the court's acceptance of Austin's guilty plea, but we vacate Austin's sentence and remand for resentencing.

         I. Background

         A. Indictment and Plea of Guilty

         In September 2013, the government indicted defendant Keith Austin, along with nine codefendants, for his role in an eight-year mortgage-fraud scheme. The indictment charged Austin with three counts of bank fraud, in violation of 18 U.S.C. § 1344; six counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1); and one count of obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2). According to the indictment, Austin allegedly participated in a scheme to fraudulently obtain fifty-two mortgage loans from lenders, which resulted in losses on the mortgage loans of over $8 million.

         Austin was the only member of the scheme to go to trial; his nine codefendants pleaded guilty. On April 22, 2015, the sixth day of the jury trial, Austin informed the court that he wished to change his plea. Austin did not have a written plea agreement or a plea declaration; rather, the district court confirmed with Austin's counsel that it would be "an oral blind plea" to counts IX, X, and XI of the indictment for bank fraud, aggravated identity theft, and obstruction of justice, respectively, and that the government would dismiss the remaining counts. As part of the plea colloquy, the court first asked the government to indicate the maximum penalties and fines applicable to the three offenses and confirmed Austin's understanding of those penalties. The court then asked questions to determine Austin's competence to knowingly change his plea and explained Austin's trial rights and what he would be waiving by pleading guilty. Next, the court questioned Austin about having sufficient time to discuss the trial and his decision to plead guilty with his attorney.

         The government presented, and Austin admitted, the factual basis for his plea to Counts IX, X, and XI. The court then turned to the Federal Sentencing Guidelines, inquiring:

Are you also aware that at the time of the sentencing the [c]ourt will be looking at the Federal Sentencing Guidelines? They serve as guides to the [c]ourt, but are not mandatory. Do you understand that? ... Has [your attorney] explained to you the issues and application involving the Federal Sentencing Guidelines?

         Austin confirmed that he had spoken to his attorney about the Guidelines: "I asked several questions. He explained it to me." Finally, after confirming Austin had not been threatened or coerced into pleading guilty, the court accepted Austin's guilty plea to Counts XI, X, and XI. At no point did the court discuss forfeiture; neither Austin's counsel nor the government informed the court that it overlooked any portions of the colloquy.

         B. Sentencing

         Austin appeared for sentencing on August 15, 2016, with new counsel who had not submitted a sentencing memorandum. The probation office had submitted a presentence report ("PSR") in June 2015 calculating a Guidelines sentencing range of 188-235 months, based on the 2014 Guidelines manual. The PSR included an offense level of 35, calculated from a base offense level of 7 under U.S.S.G. § 2B1.1(a)(1), a two-level enhancement for the number of victims, a four-level enhancement for role in the offense, a two-level enhancement for obstruction of justice, and a twenty-level enhancement for the loss amount of over $8.6 million per the 2014 version of U.S.S.G. § 2B1.1(b)(1)(K). The PSR did not ...


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