NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2010
Decided July 12, 2010
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐2602
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 CR 364‐1
FANNY WASHINGTON,
Defendant‐Appellant. David H. Coar,
Judge.
O R D E R
Fanny Washington was 64 when a jury found her guilty on 17 counts of wire fraud,
18 U.S.C. § 1343, and 7 counts of presenting false claims to the Internal Revenue Service, id.
§ 287. The district court sentenced her to a total of 41 months’ imprisonment and ordered
restitution. Washington had sought home confinement. On appeal she argues that the
district court’s explanation for her prison sentence is inadequate to demonstrate that the
court gave adequate consideration to her “advanced age” and medical history, which
Washington characterizes as her “principal arguments” at sentencing. But she overstates
the case she made to the district court, and we affirm.
No. 09‐2602 Page 2
I.
Washington worked for a tax‐preparation service based in the lobby of a Chicago
currency exchange. She met with clients, prepared their tax returns, and helped seniors and
persons with disabilities complete applications for state financial assistance. Washington
stole the identities of 11 clients, filed false federal income tax returns in their names for tax
years 2000 through 2003, and cashed $49,223 in refund checks. She likewise filed false
returns for herself and her husband for tax years 2000 through 2004, claiming another
$29,975 in refunds.
Washington also defrauded the Social Security Administration. She was the
“representative payee”—a third party who receives benefits on behalf of a recipient, usually
due to incapacity, see 42 U.S.C. § 405(j)—for an elderly man with schizophrenia. After he
died in 1988, Washington deposited his benefit checks directly into her bank account for 14
years until she was confronted by an agent from the Social Security Administration. She
converted a total of $83,639 in benefits.
In the presentence investigation report, the probation officer reported that
Washington expressed displeasure with her trial and its outcome. She complained that
many persons commit these same crimes but are not caught or prosecuted, and she stated
that she did not profit from her criminal activity as much as others. The probation officer
also documented Washington’s medical record: heart attacks in 1990 and 1997; a history of
lupus, hypertension, angina, heart disease, high cholesterol, cataracts, and glaucoma; and
Stickler syndrome (an inherited disorder that causes eye problems, altered facial features,
hearing difficulty, and joint pain, see Mayo Clinic, Stickler Syndrome,
http://www.mayoclinic.com/health/stickler‐syndrome/DS00831 (last visited July 7, 2010)).
The probation officer assumed that Washington’s health was a mitigating factor but
concluded that it was the only such factor and did not outweigh the scope of her criminal
conduct, her refusal to admit responsibility, and the prolonged duration of her fraud against
the Social Security Administration.
The day before Washington’s sentencing hearing, her lawyer filed a 4‐page
memorandum seeking a sentence of 3 years’ probation with a year of that in home
confinement. According to counsel, this alternative to prison was necessary due to
Washington’s “substantial medical needs, lack of criminal history, and family obligations.”
Washington’s memo recites—without elaboration and almost verbatim—the probation
officer’s description of her medical problems. Her age is not identified as a mitigating
factor.
No. 09‐2602 Page 3
At the sentencing hearing, the district court calculated a guidelines imprisonment
range of 33 to 41 months, which is not disputed. The court then invited allocution from
defense counsel, who started to discuss Washington’s sentencing memorandum. The judge
interrupted and said he was unaware of the memo. A copy was tendered, the court asked
for a moment, and then there was a brief pause. When counsel resumed, he alluded to the
memo and proceeded to “highlight” Washington’s medical history. Counsel asserted that
Washington’s “significant and serious medical history and her physical condition” was “the
central issue” but did not elaborate. Age was not mentioned as a mitigating factor. The
prosecutor replied that Washington’s health was stable despite previous heart and eye
surgery. The prosecutor added—without contradiction from Washington—that her
ailments could be effectively treated at a Bureau of Prisons medical facility.
The district court concluded that a prison sentence at the high end of the range was
essential “for deterrence, specific deterrence” since Washington had not accepted
responsibility and claimed ignorance about why she was prosecuted. After the court
announced the sentence, Washington’s counsel asked that her surrender date be delayed so
that she could continue seeing her cardiologist. The district court declined but permitted
Washington to renew her motion if she could produce medical documentation
substantiating the need for delay. Washington never did.
II.
Washington does not dispute the calculation of the guidelines imprisonment range.
She essentially makes one argument on appeal: that the district court’s explanation for
imposing a 41‐month sentence fails to demonstrate that the court considered the pertinent
factors under 18 U.S.C. § 3553(a). According to appellate counsel, the district court did not
at any point “explicitly recognize that it had specifically considered any of the factors under
§ 3553” and was silent “regarding Washington’s medical history and advanced age.” We
review the substance of a sentence only for reasonableness, but examine the manner in
which it was imposed under a nondeferential standard. United States v. Zohfeld, 595 F.3d
740, 743 (7th Cir. 2010); United States v. Villegas‐Miranda, 579 F.3d 798, 801 (7th Cir. 2009).
A sentencing court need not mention each of the § 3553(a) factors, especially when
the sentence is within the guidelines range. United States v. Coopman, 602 F.3d 814, 819 (7th
Cir. 2010); United States v. Moreno‐Padilla, 602 F.3d 802, 811 (7th Cir. 2010). Rather, the court
must give the reasons for its choice of sentence and address the defendant’s principal
arguments, but need not address weak or stock arguments. United States v. Christiansen, 594
F.3d 571, 577 (7th Cir. 2010); Villegas‐Miranda, 579 F.3d at 801; United States v. White, 582 F.3d
No. 09‐2602 Page 4
787, 798 (7th Cir. 2009), cert. denied, 130 S. Ct. 1542 (2010); United States v. Tahzib, 513 F.3d
692, 695 (7th Cir. 2008); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).
Washington contends that her age and medical history were significant mitigating
factors, and that the district court’s failure to explicitly mention either suggests that the
court did not consider the § 3553(a) factors. The Sentencing Commission has concluded that
medical issues, unless they arise to the level of an “extraordinary physical impairment,”
generally do not provide a reason for imposing a below‐range sentence. U.S.S.G. § 5H1.4;
United States v. Poetz, 582 F.3d 835, 837‐38 (7th Cir. 2009). Likewise, the Commission has
taken the position that age is relevant only if the defendant is elderly and infirm. U.S.S.G. §
5H1.1; United States v. Powell, 576 F.3d 482, 499 (7th Cir. 2009). Of course, the Commission’s
views are not binding after United States v. Booker, 543 U.S. 220 (2005), but sentencing courts
may still look to the Commission for guidance in applying the § 3553(a) factors. Powell, 576
F.3d at 499; United States v. Filipiak, 466 F.3d 582, 584 (7th Cir. 2006); United States v.
Castro‐Juarez, 425 F.3d 430, 434 (7th Cir. 2005).
First, there was no reason for the district court to mention Washington’s age because
it was never an issue. Washington’s sentencing memorandum includes only one reference
to her age: a single sentence that she has “resided most of her 64 years in the Chicago‐land
area.” And not once at the sentencing hearing did her lawyer assert that Washington’s age
was a mitigating factor. At all events, at no point did Washington (nor does she now)
suggest that she is elderly or infirm, see U.S.S.G. § 5H1.1; Powell, 576 F.3d at 499, or that her
age contributed to her crimes or lessens the need for punishment, see United States v. Omole,
523 F.3d 691, 699 (7th Cir. 2008) (vacating below‐range sentence where district court cited
defendant’s youth, a characteristic not unique to the defendant, as a basis for a significant
decrease). The argument that advanced age is always a mitigating factor is a “nonstarter.”
United States v. Wurzinger, 467 F.3d 649, 652 (7th Cir. 2006); United States v. Bullion, 466 F.3d
574, 576 (7th Cir. 2006).
As for her health, Washington at least asserted that her medical history was a reason
to impose a below‐range sentence, but that contention was never developed in the district
court and thus was so weak that no response by the court was necessary. In her sentencing
memorandum and in open court Washington catalogued her medical issues and stated that
she is in poor health, but never did she try to explain why her poor health warrants leniency
in punishment. See United States v. Jackson, 547 F.3d 786, 795‐96 (7th Cir. 2008) (concluding
that sentencing court was not required to discuss defendant’s contention that he deserved
lower sentence because of low IQ where defendant failed to supply documentation of
mental functioning or explain how low IQ contributed to commission of the crime), cert.
denied, 129 S. Ct. 1538 (2009); United States v. Beier, 490 F.3d 572, 574 (7th Cir. 2007)
No. 09‐2602 Page 5
(upholding district court’s refusal to impose lower sentence when defendant who was
molested and had low IQ failed to explain why these personal characteristics warranted
leniency). Washington did not argue that she was experiencing complications at the time of
sentencing. See United States v. Harris, 567 F.3d 846, 854‐55 (7th Cir.) (remanding for
resentencing where district court imposed 504‐month sentence without mentioning
defendant’s argument that complications from diabetes, including amputated leg,
warranted lower sentence), cert. denied, 130 S. Ct. 1032 (2009). She experienced all of her
medical ailments while executing her fraudulent schemes, but she made no effort to explain
why conditions that did not hinder her crimes should then warrant less punishment. Cf.
United States v. Dyer, 216 F.3d 568, 570‐71 (7th Cir. 2000) (“If Dyer’s mental condition was
not a but‐for cause of his crime, that is, if he would have committed the crime even if he had
been completely sane at all times, then it is hard to see how his mental condition is any
more relevant to his punishment than the color of his hair. . . . If there is no connection
between the defendant’s mental condition and his crime, there is no basis for a punishment
discount.”). Further, Washington never contended that her maladies are themselves
imprisoning, i.e., that she is bedridden or that her conditions require a level of care that the
BOP cannot provide. Indeed, Washington was silent when the prosecutor asserted that the
BOP was equipped to deal with her medical issues. Cf. United States v. Dowell, 388 F.3d 254,
256 (7th Cir. 2004) (upholding refusal to depart downward based on defendant’s heart
condition where district court concluded that BOP’s medical care was sufficient); United
States v. Krilich, 257 F.3d 689, 693‐94 (7th Cir. 2001) (overturning downward departure based
on defendant’s poor health where defendant did not show that his heart condition was so
disabling as to require constant care or render him bedridden); United States v. Albarran, 233
F.3d 972, 978‐79 (7th Cir. 2000) (upholding refusal to downwardly depart on basis of
defendant’s heart condition where defendant did not present any evidence that he needed
constant care). Thus, the district court’s silence about Washington’s medical history was of
no consequence because Washington never established that her health was a significant
mitigating factor. See United States v. Nurek, 578 F.3d 618, 626 (7th Cir. 2009) (explaining that
district court was not obligated to specifically discuss defendant’s physical ailments where
those ailments were not shown to be significant mitigating factors), cert. denied, 78 U.S.L.W.
3610 (U.S. Apr. 19, 2010) (No. 09‐8147); United States v. Simmons, 582 F.3d 730, 734‐35, 738
(7th Cir. 2009) (same).
Because the district court was not required to mention Washington’s age or medical
history, she is left to argue that the court failed to adequately weigh the § 3553(a) factors.
We presume that Washington’s sentence is substantively reasonable because it falls within
the properly calculated guidelines range. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Nothing in the record overcomes
this presumption.
AFFIRMED.