October 22, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13-cr-00761-1 -
Charles R. Norgle, Judge.
Flaum, Easterbrook, and Scudder, Circuit Judges.
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.
Indictment and Plea of Guilty
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.
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.
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
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.
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 ...