Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08-CR-807-Robert W. Gettleman, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before EASTERBROOK, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
Tomas Leiskunas, a participant in a major mortgage fraud scheme, was charged with committing wire fraud as part of that scam. His role was to act as a "straw", or fake, buyer of seven properties, and to cause $4,473,161.55 to be transferred from unwitting mortgage companies to their banking partners. Ultimately, as part of the scheme, he received $90,000 from his co-schemers. He pled guilty, and was sentenced to 37 months' imprisonment, which was the lowest end of the guideline range. He was also sentenced to two years of supervised release, and ordered to pay $1,792,000 in restitution.
Leiskunas appeals, arguing that his sentence should have been lowered because of his substantial assistance to the government, but we reject this argument because the district court acted within its discretion in considering, and rejecting, Leiskunas's assertion of substantial assistance. Leiskunas also argues that the court erred when it applied a loss amount of $1,792,000 to him without explanation. We agree that the court should have explained its rationale in attributing a loss amount to Leiskunas. Finally, Leiskunas argues that his sentence should have been modified to reflect the guidelines' minor role adjustment. We conclude that the court erred in interpreting the minor role adjustment guideline when it stated that an act otherwise deemed minor could, if repeated, necessarily preclude the adjustment, and that a person playing a necessary role cannot play a minor role. We remand to give the court an opportunity to explain the reasonably foreseeable financial loss amount that should be attributed to Leiskunas as a result of his crime, and to consider Leiskunas's minor role argument as discussed in this opinion.
In 2006, at 26 years old, Tomas Leiskunas had a minor criminal history and at least two aliases. He was charged in a one-count indictment with being a willing participant in a mortgage fraud scheme. The indictment alleged that beginning no later than September 2006 and continuing until approximately November 2006, Leiskunas and others knowingly participated in a scheme to defraud and to obtain money and property by means of materially false and fraudulent pretenses, representations, promises, and material omissions. The indictment also charged that on or around November 2, 2006, for the purpose of executing the scheme, Leiskunas knowingly caused to be transmitted by means of wire communication in interstate commerce a funds transfer in the amount of $468,971.86 from Wachovia Bank in Philadelphia, Pennsylvania, to First American Trust Company in Santa Ana, California, in violation of 18 U.S.C. § 1343.
Leiskunas pled not guilty to the charge in the indictment. Later, he withdrew his plea of not guilty and entered a plea of guilty. Rather than enter into a plea agreement with the government, Leiskunas filed a written plea declaration in which he admitted that he agreed to act as a straw buyer of seven properties. He also stated that another individual in the scheme told him that he would receive some form of payment for his willingness to be a straw buyer when the properties were eventually resold. He admitted that he was present at mortgage transaction closings in his role as the straw buyer, and that he "understood that he did not have to live in any of the properties for which he was signing mortgage applications." During these closings, Leiskunas provided his identification, reviewed the final loan paperwork, and approved documents that contained false financial and employment information. He also acted as though he was a legitimate buyer, when he knew he was not. Leiskunas never intended to assume any mortgage liability for the properties, even though the properties were being purchased based on mortgages acquired in his name.
A Pre-Sentence Report (PSR) was prepared in advance of Leiskunas's sentencing hearing. The PSR noted that a total of $4,473,161.55 was transferred from the mortgage loan companies to the banks due to Leiskunas's fraudulent purchase of seven properties. The PSR also explained that as a result of Leiskunas's participation in the scheme, a co-schemer deposited $90,000 into Leiskunas's bank account, $30,000 of which Leiskunas transferred to two other accounts. The PSR also concluded that his base offense level was seven, and contained a recommendation that he receive a 16-point enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(I), for causing a loss greater than $1,000,000 but less than $2,500,000, because of a reasonably foreseeable loss of at least $1,792,000. The loss amount was calculated by the probation officer based on the government's estimate of loss and the probation officer's interview of the case agent. The $1,792,000 figure was determined by calculating the difference between the $4,473,161.55 loan amount and the amount recouped when each property was eventually resold, after Leiskunas defaulted on the *fn1 loans. Leiskunas was credited with a three-level adjust- ment under U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. With a Category II criminal history, and a total offense level of 20, Leiskunas's advisory guidelines range was 37-46 months' imprisonment.
During Leiskunas's sentencing hearing, the govern-ment's proposed loss calculation method mirrored that of the PSR. The government argued that the applicable loss amount for Leiskunas's crime "is not the full amount of the loans that Mr. Leiskunas got, but rather . . . the difference between the amount of the loan that he got and the eventual price for which the house was resold. . . . We're not holding him accountable for the full price of the fraud. It's just the loss."
Also, the government stated that a sentence adjustment for acceptance of responsibility was appropriate because "[w]hen Mr. Leiskunas was arrested, he was fully cooperative. He gave a full confession. . . . Subsequent to that, he's met with agents and the U.S. Attorney's office every time he's been asked to meet. He has agreed to testify when he's been asked to testify. And he has been willing to offer information." However, the government did not make a motion under U.S.S.G. § 5K1.1, which allows the court to depart from the guidelines based on the government's representation that the defendant gave substantial assistance to governmental authorities.
Regarding Leiskunas's role in the scheme, the government argued that a minor role adjustment was not appropriate in Leiskunas's case because he "was central . . . [t]he deals would not have gone through without the straw buyer there. . . . And he took several steps as well for each of the seven properties. . . . This is someone who is at the heart of the fraud. . . . [H]e should be held accountable for his own conduct." In response, Leiskunas argued that he deserved a minor role adjustment as well as a further reduced sentence due to his substantial assistance to the government. As to the minor role adjustment, Leiskunas's attorney argued that he acted only at the direction of others, had no idea how large the scheme was or the number or identities of the co-schemers, exercised no power over the scheme, and that he was a replaceable cog within the scheme. With respect to the substantial assistance adjustment, his attorney noted that "he has done everything that was asked of him. He has gone in, he's identified individuals. He's pointed out pictures. He's explained his story. He's testified in the grand jury. . . . [H]e provided substantial assistance [to the government] that allowed them to continue in their investigation." Leiskunas also contended that the loss amount attributed to him by the government was wrong. His attorney argued that Leiskunas believed that the houses that he fraudulently purchased would be resold at a profit, and that "he had no reasonable foreseeability when it came to knowing that [foreclosure] was going to happen to the banks."
But the court declined to apply the minor role enhancement in sentencing Leiskunas and stated:
I can't say that you had a minor role here, because you were in a sense necessary for this to happen. You need the straw buyer or [the scheme] isn't going to happen at all. If this were just one transaction or maybe two, I could say it's a much closer case. Seven, I can't say it's a closer case. . . . You were an integral part of this. What makes you a minor participant is if you just had a transitory brush with the activity, or it was an opportunistic moment that somebody took ...