Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06-CR-937-Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Cudahy, Circuit Judge.
Before CUDAHY, FLAUM, and EVANS, Circuit Judges.
Ondray Pulley pleaded guilty to one count of wire fraud related to a scheme to defraud the United Airlines Employees' Credit Union (UAECU). He was sentenced to 87 months' imprisonment and ordered to pay restitution. Pulley now appeals, arguing that the government's lack of candor at his co-defendant's sentencing proceedings caused the district court to make significant procedural errors at Pulley's sentencing. Specifically, he contends that the district court, having determined at the sentencing of his co-defendant Anthony Anderson that Anderson was credible, did not want to reverse this determination. In Pulley's opinion, the district court was therefore forced into making an impossible finding at Pulley's sentencing that both Pulley and Anderson were accurately testifying even though their stories conflicted. Pulley also challenges the district court's sentence as unreasonable.
We affirm because the district court did not commit procedural error in the course of Pulley's sentencing proceedings, and it appropriately considered the relevant § 3553(a) factors. It also did not err in sentencing Pulley at the high end of the applicable Guidelines range.
Pulley defrauded credit unions for many years. The scheme unfolded as follows. First, Pulley and Anderson obtained the personal identifying information (social security number and the like) of a Chicagoland area United Airlines employee and opened an account at the credit union UAECU. Next, Pulley used several other victims' identifying information to add joint owners to the account. After securing counterfeit checks, Pulley and Anderson deposited money into the account, procured debit cards in the victims' names, and transferred money drawn from the victims' actual bank accounts into the fraudulent UAECU account. Then, Pulley and Anderson flew to Las Vegas (using proceeds from the account) to cash in on their scheme. They advanced themselves more than $100,000 while visiting various posh Las Vegas hotels and casinos, ate a few meals and divided the proceeds-Anderson received well less than half. The two were indicted in connection with this scheme on December 13, 2006 on several mail and wire fraud counts, and Anderson was also indicted for a fraud on the Members' Advantage Credit Union (Members' Advantage). Whether Pulley was involved in the Members' Advantage scheme became a factual dispute addressed in a long series of evidentiary sentencing hearings.
By April 2007, Anderson had agreed to cooperate with the government and met with government representatives several times throughout the year. Pulley's case continued toward trial, and the government planned to have Anderson testify against him. Anderson eventually entered his plea in July (after several scheduling conflicts).
Anderson was sentenced on November 13, 2007. At sentencing, the government explained that, despite his significant criminal history, Anderson's life appeared to be on the right track, and the government had not had any difficulties with him. After noting his extensive criminal history, the district court granted the government's § 5K1.1 motion based on Anderson's cooperation, his successful efforts to reform himself after suffering from a serious medical condition while serving a prior prison term, and on his prompt and forthright cooperation in the government's investigation. Significantly for this appeal, the government did not mention to the district court the dispute regarding Pulley's involvement in the Members' Advantage scheme, an issue that called into question Anderson's credibility, or inform the court that it knew that Anderson had purportedly attempted to contact a witness. As of the date of Anderson's sentencing hearing, the district court had already received written filings prepared for Pulley's sentencing hearing detailing the dispute in question. At the close of Anderson's sentencing hearing, the district court accepted the parties' agreed-upon sentence of 38 months' imprisonment as well as restitution, jointly and severally with Pulley, in the amount of $190,000, including amounts due to both UAECU and Members' Advantage. Thirty-eight months was below the applicable Guidelines range of 57 to 71 months.
Pulley had entered his plea of guilty on July 5, 2007. His sentencing was originally scheduled for October 3, 2007, before Anderson's, but was continued on multiple occasions, initially at Pulley's request.*fn1 Prior to sentencing, Pulley filed objections to the presentence investigation report taking responsibility for a fraudulent scheme at Affinity Credit Union (Affinity) and denying his involvement in the Members' Advantage scheme. The Affinity scheme had not been noted in the presentence report and therefore was not part of the applicable Guidelines range calculations. Without these amendments, Pulley's advisory Guidelines range was 57-71 months. Including the Affinity loss ($150,000) and excluding the Members' Advantage loss ($120,000), the loss amount from the UAECU scheme and other relevant conduct totaled slightly over $400,000. Pulley's amendments raised his offense level two points and his sentencing range to 70-87 months.
At Pulley's first sentencing hearing (where he was not present, for unknown reasons), on November 14, the district court highlighted the factual conflict between the government and Pulley regarding his participation in the Members' Advantage scheme. The district court reset the sentencing and allowed several more hearings to permit the parties to present witnesses-including Pulley and Anderson-regarding this issue. At the close of the hearings, the district court determined that the government had not met its burden to prove that Pulley participated in the Members' Advantage scheme given the lack of hard evidence and the difference between methods employed in that scheme and those used in Pulley's earlier schemes. It also found, however, that Anderson's testimony, implicating Pulley in the Members' Advantage scheme, was credible based in large part on the consequences of any possible perjury-including the possible revocation of Anderson's plea deal. The district court reconciled its decision to find credible two witnesses' conflicting stories by explaining that it was plausible that two con men with a long history together, like Anderson and Pulley, could have gotten confused*fn2 about events that occurred many years in the past. Consistent with these findings, the district court amended the restitution order entered at Anderson's sentencing to rescind Pulley's joint liability. Further, the court declined to accept the government's position that Pulley should be denied credit for acceptance of responsibility and instead receive a two-level increase for obstruction of justice for failure to admit his participation in the Members' Advantage scheme. Pulley was then sentenced to 87 months.
Whether the district court followed proper sentencing procedure is a legal question reviewed de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009). Factual findings are reviewed for clear error. United States v. Heckel, 570 F.3d 791, 793 (7th Cir. 2009). Likewise, we defer to a district court's determination of witness credibility, which can virtually never be clear error. United States v. Acosta, 534 F.3d 574, 584 (7th Cir. 2008). The substantive reasonableness of a sentence is reviewed for an abuse of discretion and a correctly calculated, within-Guidelines sentence is ...