Appeals from the United States District Court for the Northern District of Illinois, Western Division. Nos. 04 CR 50004 & 06 CR 50038-Philip G. Reinhard, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
Before MANION, WOOD, and SYKES, Circuit Judges.
Michael G. Linder was in the business of providing services to union pension and health and welfare benefit plans. Linder entered into contracts to be the third-party administrator for the plans, and, in that capacity, exercised control over the plans' assets. Linder abused his position, and two federal criminal prosecutions followed. In December 2004, Linder pleaded guilty to two counts of giving a thing of value in order to influence an employee benefit plan in violation of 18 U.S.C. § 1954. Less than two years later, Linder pleaded guilty to two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1346 and five counts of theft or embezzlement from an employee benefit plan in violation of 18 U.S.C. § 664. At a consolidated sentencing hearing for the two cases, the district judge sentenced Linder to 60 months' imprisonment on the two § 1954 counts, 84 months' imprisonment on the two mail fraud counts, and 60 months' imprisonment on each of the § 664 counts. The sentences of imprisonment on all the counts were to be served concurrently. Linder has filed a notice of appeal in both cases. We dismiss Linder's appeal challenging his sentence in the 2006 case and affirm Linder's appeal challenging his sentence in the 2004 case.
Linder, through his company Joseph/Anthony and Associates, Inc. ("Joseph/Anthony"), acted as a third-party administrator for many union employee pension and health and welfare benefit plans. In late 1998 and early 1999, Linder gave Harley Davidson motorcycles to individuals closely connected with some of the plans that Joseph/Anthony serviced. One $20,000 motorcycle went to Fred Schreier, the President of Ironworkers Local 146 and a trustee of two of its pension plans. Linder gave another motorcycle to Thomas Kisting, the Business Agent of Ironworkers Local 498 who was also the Plan Administrator of two of that union local's pension plans. In return for these motorcycle "gifts," Linder expected to influence the investment decisions Schreier and Kisting made regarding their union locals' pension funds.
While Linder was buying influence with these union officials he was also defrauding their and many other pension plans. Linder told the trustees of the pension plans that their funds were being invested in self-directed mutual funds. Instead, he forged the signatures of the trustees and enrolled the plans into annuity contracts with Nationwide Life Insurance Company. In return for the business, Linder received millions of dollars in commissions and fees from Nationwide, paid through Joseph/Anthony and Liz/Mar and Associates, Inc. (another company controlled by Linder). Linder did not disclose to the trustees the compensation he received from Nationwide, which was not provided for in the service agreements between Joseph/Anthony and the pension plans.
In addition to defrauding the pension plans, Linder was also embezzling funds from three of those plans, as well as two of the union locals' health and welfare benefit plans. Linder inflated the bills for the premiums of the life insurance that Joseph/Anthony purchased for union members participating in the three pension plans, as well as the "stop-loss" insurance for the two health and welfare benefit plans. After Linder paid the premiums from the assets of the plans, he siphoned off for himself the rest of what he had billed the plans. All in all, between his embezzling and defrauding, Linder stole around $7,000,000 from the plans.
Linder's malfeasance finally caught up with him and, on January 27, 2004, a federal grand jury in Rockford, Illinois, returned an indictment in Cause No. 04 CR 50004 ("2004 case") charging Linder, based on his motorcycle "gifts," with two counts of giving a thing of value in order to influence an employee benefit plan in violation of 18 U.S.C. § 1954. Although a superseding indictment added a third count charging conversion of funds from an employee benefit plan in violation of 18 U.S.C. § 664, Linder pleaded guilty to only the first two counts on December 10, 2004. On March 1, 2005, the government filed an agreed-upon motion, which was granted, to postpone Linder's sentencing because of "other allegations of criminal misconduct" by Linder that were under investigation by the government.
The government's investigation of the other allegations led to further charges. On June 30, 2006, the government filed an information in Cause No. 06 CR 50038 ("2006 case") charging Linder with two counts of mail fraud in violation of 18 U.S.C. § 1341 and five counts of converting funds from employee benefit plans in violation of 18 U.S.C. § 664. On the same day, Linder appeared before the district court to plead guilty to the information pursuant to a written plea agreement. The plea agreement listed the total amount of fraud, converted property, and relevant conduct for the 2006 case as approximately $6,930,155. The plea agreement also contained a calculation, "preliminary in nature," of Linder's sentencing range under the United States Sentencing Guidelines, which was estimated at 78-97 months' imprisonment. The plea agreement stated that "[t]he defendant understands that the . . . court ultimately determines the facts and law relevant to sentencing, and that the court's determinations govern the final sentencing guidelines calculation." It also stated that "the validity of this Agreement is not contingent upon the . . . court's concurrence with the above calculations."
In exchange for Linder's cooperation and other concessions, the plea agreement provided pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C)*fn1 that "the sentence imposed by the court shall include a term of imprisonment in the custody of the Bureau of Prisons of 50 percent of the low end of the applicable Sentencing Guidelines range." If the court refused to apply the 50-percent reduction, the plea agreement expressly provided that "this Plea Agreement shall become null and void and neither party will be bound thereto." Inversely, if the district court accepted the 50-percent reduction, the agreement provided that the "defendant may not withdraw this plea as a matter of right under Federal Rule of Criminal Procedure 11(d)."
Lastly, the plea agreement contained a waiver of Linder's appellate rights. The plea agreement stated,
Defendant is also aware that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal or contest, under 18 U.S.C. § 3742 or 28 U.S.C. § 2255, or otherwise, his conviction and the resulting sentence, in exchange for the concessions made by the United States in this Plea Agreement, including its agreement to move for a [50-percent] downward departure.
The district court discussed the provisions of the plea agreement, including the waiver of appeal, with Linder at the plea hearing and ultimately accepted Linder's plea of guilty and the plea agreement, subject to the court's review of the Rule 11(c)(1)(C) portion of the agreement. In a minute order, the district court also consolidated Linder's 2006 case with his 2004 case for sentencing.
After the change of plea hearing, but before sentencing, the district court issued a series of orders concerning the determination of Linder's Guidelines range for the 2006 case. On November 13, 2006, the district court directed the probation office to file a report examining whether any guideline enhancement was warranted under U.S.S.G. § 3B1.1(c), for having an aggravating or leadership role in a criminal scheme, or U.S.S.G. § 2B1.1(b)(2), for the number of victims involved in the crime, and also directed the parties to be prepared to discuss those enhancements at sentencing. The next day, the district court also ordered the parties to submit sentencing memoranda on the issues of whether each of the two cases constituted relevant conduct with respect to the other, and whether the facts of a related case, United States v. Michael J. Brdecka, No. 05 CR 50071 (N.D. Ill. July 18, 2005), constituted additional relevant conduct. At a telephone hearing the same day, the district court gave the parties an opportunity ...