Argued October 29, 2012
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:08-cr-00018-LJM -- Larry J. McKinney, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Gayle L. Helart, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.
For DONELLA LOCKE, Defendant - Appellant: Barry Levenstam, Attorney, Landon S. Raiford, Attorney, JENNER & BLOCK LLP, Chicago, IL.
Before POSNER, KANNE, and ROVNER, Circuit Judges.
Rovner, Circuit Judge.
In her second appeal before this court, Donella Locke asks us to reverse the district court's judgment on sentencing, claiming that the lower court errantly calculated the amount of loss attributable to her conduct. Because Locke waived this issue, we decline to consider the matter and affirm, and in doing so revisit the factors that distinguish loss and restitution.
Donella Locke and her co-conspirator engaged in real estate fraud that involved, among other things, the use of false documents, false social security numbers, payments to fictitious vendors and contractors, and inflating income on documents to banks. The more specific details of the fraud are outlined in the first appeal of this case at United States v. Locke, 643 F.3d 235 (7th Cir. 2011).
The indictment originally charged Locke with fifteen counts of illegal conduct, but at trial the government presented evidence of only five. Upon Locke's motion to dismiss at the close of the government's case, the government conceded that it failed to present any evidence for ten counts, and the district court granted the motion accordingly.
Locke's presentence investigation report recommended a sixteen point addition to the offense level computation because the offense involved a loss of more than $1 million. Specifically, the report calculated a loss of $2,360,914.51 based on all of the properties underlying all fifteen counts against Locke, including the properties that formed the basis of the ten dismissed counts. Locke objected, arguing that her sentence should be based solely on the convicted conduct which would account for a loss of less than $1 million. Her written objection to the presentence report stated:
Donella objects to the loss calculation reflected in paragraph 64. It is Donella's position that the loss amount should be based on the five counts of conviction (9, 10, 11, 12, and 14) (sic) and not the counts upon which she was acquitted. If calculated on the five counts of conviction only, the loss amount would be well below $1,000,000 and would result in an additional 14 levels pursuant to U.S.S.G. 2B1.1(b)(1)(I).
Supplemental Addendum to the Presentence Report at p.24.
In response, the probation office argued that relevant conduct could be considered in determining the loss amount, but that even if the loss amount was based solely on Locke's convicted conduct, the loss amount would still exceed $1 million.
At the January 27, 2010 sentencing hearing, the lawyer for Locke stated, " I am withdrawing that objection [to the loss amount], Your Honor. We have no objection to the Government's calculation or to the calculation of loss amount that's reflected ...