In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1571
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ARY L. K NOX,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:05-cr-20029—Michael P. McCuskey, Chief Judge.
____________
A RGUED O CTOBER 9, 2009—D ECIDED N OVEMBER 10, 2010
____________
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Gary Knox was the mastermind
of an extensive real estate scheme using grossly inflated
property appraisals and false loan applications. Using
the fraudulent appraisals, Knox convinced buyers to
purchase properties at exorbitant prices and then
duped lending institutions into extending mortgages
based on the trumped up values. As a result, Knox was
charged with and pleaded guilty to multiple counts of
2 No. 08-1571
bank fraud, wire fraud, mail fraud, and money laundering.
At sentencing, the district court applied several enhance-
ments to Knox’s offense level based on Knox’s use of
sophisticated means, having ten or more victims, receipt of
more than $1 million from financial institutions, and role
as organizer of a scheme involving five or more partici-
pants. On appeal, Knox challenges the district court’s
application of these sentencing enhancements. He also
attempts to challenge the district court’s loss calculation
in a pro se supplemental brief. We find that the district
court properly applied all of the enhancements and that
Knox waived his argument as to the court’s loss calculation
by making and then withdrawing the very same objection
at the sentencing hearing. Therefore, we affirm Knox’s
sentence.
I. BACKGROUND
From 1998 to 2005, Knox orchestrated a multifaceted real
estate “flipping” scheme in central Illinois. The scheme was
carried out in various ways but remained the same at
its core. Knox would procure a property at a nominal
price ($100 to $5,000) either by buying it himself or causing
it to be purchased under someone else’s name, usually
without their knowledge or consent. He would then “flip”
the property by selling it to an unwitting buyer at
an exorbitant price supported by fraudulent property
appraisals that grossly inflated the property’s value.
Knox defrauded every party involved in these real estate
transactions: he would tell property owners that he
intended to sell their properties at their asking price,
No. 08-1571 3
but would then turn around, jack up the price, and
use the falsified appraisals to convince buyers to buy
and lenders to extend mortgages on the substantially
inflated property value. Knox would then pocket the
difference between the seller’s true asking price and the
grossly exaggerated purchase price he had represented to
the buyer, and pay kickbacks to his accomplices, which
included Knox’s codefendants Dennis Wiese, Jr., who
conducted most of the appraisals, and Frank Kelly Ciota,
who assisted Knox with finding unwitting buyers
to defraud.
The most common type of fraudulent transaction in
the scheme involved Knox and Ciota locating owners
of distressed rental properties in Springfield and
Decatur, Illinois, who were interested in selling their
properties. Posing as an agent for a group of real estate
investors, Knox would promise the sellers that he could
sell their properties for a price much higher than their
asking price. Knox would then go about finding prospec-
tive buyers—many of whom were of modest means
and lacked real estate experience—and present them with
an opportunity to increase their monthly income with
little effort: at a discounted price, with no down pay-
ment required, the buyer could purchase a rental property
in an economically depressed area that would generate
a considerable monthly income from the rent payments.
Knox also used other strategies to lure buyers into
the scheme, such as offering a $5,000 cash incentive for
each property purchased, assuring the buyers that
he would buy back the property if the buyer was later
4 No. 08-1571
unsatisfied with the purchase, and promising to act as
the property manager, including locating tenants, col-
lecting rents, and making the loan payments directly to
the lenders.1
Unbeknownst to the buyers, however, this was not such
a great deal. Knox would never follow through on any
of his property management or buy-back promises, and the
appraisals that Knox used to convince the buyers that they
were getting a steal (e.g., by telling them that the asking
price was lower than the inflated property valuation) were
phony. The appraisals were usually created by Wiese, a
licensed real estate appraiser whom Knox recruited to join
the scheme. Wiese’s appraisals were based on allegedly
comparable sales data provided by Knox, who also gave
Wiese a target price which was substantially marked up
over the property’s actual value. Knox calculated the target
price by using information from Knox’s wife, Vicki,
who was a licensed real estate agent and had access to real
estate databases and sales data. Knox would obtain
1
Other versions of the scheme were less complicated. In some
cases, Knox and Ciota would outright sell an unsuspecting
property owner’s home out from under them. Such was the case
with an elderly couple in Decatur, whose home Knox and Ciota
sold to Ciota’s relatives (who believed they were participating
in a legitimate transaction) for $43,000 without the couple’s
knowledge. In other instances, Knox and Ciota would purchase
other homes under the names of certain relatives without their
knowledge or approval, as was the case when Knox and Ciota
caused Ciota’s relatives to purchase four other homes owned by
Knox without the relatives’ approval.
No. 08-1571 5
information about sales of properties in better condition or
outside the market area and pass this information along to
Wiese with a suggestion that he use it to appraise the
property at the elevated target price.
The next step in the scheme involved helping the buyer
secure a mortgage loan. Knox would assist with this
process by filling out the loan applications for the buyers.
In doing so, he caused several false statements to be made
on the applications concerning the amount and source of
the down payment, the buyer’s financial liquidity, and
the amount of rental payments obtained from the rental
property to be purchased. Many of these loan applications
were processed through State Street Mortgage Company,
a mortgage brokerage owned and operated by Dennis
Schneider. As the mortgage broker, Schneider sought loan
approval for buyers through various lending institutions
with whom he regularly worked by presenting the institu-
tions with the loan applications and Wiese’s appraisals.
Lenders, in turn, relied on the false information in the
applications and on the exaggerated appraisals and
extended mortgage loans for the inflated purchase prices.
The final step in the scheme was the closing, during
which a title company completes the real estate purchase
and loan transaction. Knox often utilized Tri-County
Title Services, Inc., a company owned by Michelle Miller,
for closings. Initially, Miller followed standard operating
procedure for real estate closings—after the lender issued
a loan commitment and transferred the funds to the
title company, the title company would hold the funds in
escrow until the closing, compile the loan documents
6 No. 08-1571
and mortgage agreement, conduct the settlement meeting
with the buyer and seller present, and then distribute the
sale proceeds after closing. Over time, however, Miller
began to deviate from the standard procedure. On several
occasions, she did not require the buyers or sellers to
be present and would instead allow Knox to remove the
loan documents from the title office under the guise of
taking them to his clients for their signature. After forging
the signatures of the buyer or seller, Knox would then
return the documents to the title company for closing.
Miller also began to distribute the closing checks (which
represented the proceeds from the property sale) prior to
the actual closing. Knox would then take this check to
a bank and divide it into multiple cashier’s checks, one of
which would be made out in the buyer’s name and in the
amount of the down payment.2 After the closing, Knox
retained the majority of the sale proceeds, paid the seller
the asking price for the property (which was always
substantially lower than the actual purchase price), and
then paid his accomplices.
Knox’s scheme began to fall apart just as the buyers’
rental properties did. Knox and Ciota never followed
through with their obligations to manage the properties,
locate tenants, or collect rent payments. Some buyers
2
On at least one occasion, Knox arranged for some of the
financing to be closed in the names of an unsuspecting buyer
and Knox’s company, Central Illinois Management & Develop-
ment, which also allowed him to have unimpeded access to the
loan disbursements.
No. 08-1571 7
also discovered that their properties were vacant, in
disrepair, or uninhabitable. Knox and Ciota also failed to
make the loan payments to the lenders as promised, which
resulted in several buyers defaulting on their loans and
many lenders initiating foreclosure actions. In total, Knox
devised and participated in more than 150 fraudulent real
estate transactions, which resulted in the lending institu-
tions financing more than $7 million of fraudulent mort-
gages.
In April 2006, Knox pleaded guilty to three counts of
bank fraud, in violation of 18 U.S.C. § 1344; one count of
wire fraud, in violation of 18 U.S.C. § 1343; six counts of
mail fraud, in violation of 18 U.S.C. § 1341; and one count
of conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(a). One year after his guilty plea but
before his sentencing, he filed motions to withdraw
the guilty plea and to dismiss the indictment, both of
which were promptly denied by the district court.
At Knox’s sentencing, the government elicited testimony
from Daniel Bergan, a Federal Deposit Insurance Corpora-
tion (“FDIC”) agent who was primarily responsible for the
FDIC’s investigation into Knox’s mortgage scheme.
Bergan testified that Knox received approximately $4.3
million for his part in the scheme. As part of his testimony,
Bergan provided the court with a spreadsheet showing
the transactions comprising Knox’s gross receipt total. The
spreadsheet also indicated the address of the property,
the actual purchase price as displayed on the HUD-1 form,
the amount mortgaged, and the amount received by Knox.
Bergan also testified that the scheme had resulted in a loss
8 No. 08-1571
of approximately $4.7 million to the financial institutions
defrauded, and he presented another spreadsheet showing
each of the transactions on which he relied for the loss
calculation. In addition to the information listed on the
gross receipts spreadsheet, the loss calculation spreadsheet
also included the value of the property after it was fore-
closed or demolished, and the loss amount to the individ-
ual financial institutions.
Over Knox’s objections, the district court applied several
sentencing enhancements, including enhancements for
using sophisticated means, having ten or more victims,
gaining $1 million or more in gross receipts from a finan-
cial institution, and assuming an organizer role in a scheme
involving five or more participants. After the application
of the enhancements and a three-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1, the
district court determined Knox’s final offense level to be
34 and criminal history category to be III, which resulted
in an advisory guidelines range of 188 to 235 months’
imprisonment. The district court sentenced Knox to 235
months’ imprisonment and 5 years’ supervised release on
each count to be served concurrently. On appeal, Knox
challenges his sentence, arguing that the district court
committed clear error in applying the sentencing en-
hancements.
II. ANALYSIS
We review a district court’s application of the sen-
tencing guidelines de novo and its findings of fact for
No. 08-1571 9
clear error. United States v. Samuels, 521 F.3d 804, 815
(7th Cir. 2008). A district court’s factfinding at sentencing
is entitled to deference “unless we have a definite and
firm conviction that a mistake has been made.” Id. (cita-
tions and internal quotation marks omitted).
A. Use of Sophisticated Means
Knox first argues that the district court erred in applying
U.S.S.G. § 2B1.1(b)(9)(C), which calls for a two-level
enhancement if the offense “involved sophisticated
means.” The guidelines define “sophisticated means” as
“especially complex or especially intricate offense con-
duct pertaining to the execution or concealment of an
offense.” Id. § 2B1.1(b)(9)(C) cmt. n.8(B). We have found
that the enhancement is proper when the conduct shows
“a greater level of planning or concealment” than a
typical fraud of its kind. United States v. Wayland, 549 F.3d
526, 528-29 (7th Cir. 2008). As the Eighth Circuit puts it, the
two-level enhancement “is proper when the offense
conduct, viewed as a whole, was notably more intricate
than that of the garden-variety [offense].” (alteration in
original) United States v. Jenkins, 578 F.3d 745, 751 (8th Cir.
2009) (citation and internal quotation marks omitted).
Here, it is clear that Knox’s scheme qualifies as sophisti-
cated for purposes of § 2B1.1. He deceived real estate
buyers into purchasing overpriced properties by
making promises he would never keep, and he lied to the
sellers by telling them that he sold the properties for a
lower amount than was true. He then tricked mortgage
10 No. 08-1571
lenders into financing properties at prices far exceeding
the real property value by falsifying the prospective
buyers’ loan applications with misinformation about
the source of the down payment and providing the
grossly inflated appraisals. The district court did not err
by finding that such falsifications qualify as “sophisti-
cated” under § 2B1.1. See United States v. Wu, 81 F.3d 72, 73-
74 (7th Cir. 1996) (finding that defendant’s falsifica-
tion of business records and use of false names were
“sophisticated” under § 2T1.1(b)(2), the tax analog to
§ 2B1.1(b)(9)(c)).
Knox’s coordination of various moving parts of the
scheme and his ability to fool so many lenders into ex-
tending mortgages they otherwise would not have ex-
tended also speaks to the scheme’s sophistication. In
this regard, the instant case is analogous to United States
v. Rettenberger, 344 F.3d 702 (7th Cir. 2003), which
involved two defendants (a married couple) who had
committed insurance fraud by convincing multiple insur-
ance companies and a neurologist that the husband
suffered from a disability which precluded him from
working and entitled him to disability benefits from the
insurance companies and the Social Security Administra-
tion. We found that the district court’s application of the
sophisticated means enhancement was proper because
“[f]ooling a skilled neurologist and 14 insurers requires
intricate maneuvers,” as demonstrated by the need for
the defendants to “present a picture consistent with the
injury [the husband] supposedly suffered” and for “careful
execution and coordination over an extended period.” Id.
at 709. Similarly, Knox’s scheme required precision and
No. 08-1571 11
coordination with the other participants in the scheme. He
worked with Miller to remove the loan documents from the
title company and to receive the loan proceeds early so that
he could return a portion as the down payment. 3 Knox
also had to be careful to never allow the sellers and
buyers to meet or see the loan documents so that he
could avoid them discovering the true asking and
purchase price of the property. Moreover, Knox’s scheme
required him to convince 21 lending institutions to
extend grossly inflated mortgages to Knox’s buyers. We
find that deceiving that many banks into financing
over 150 fraudulent transactions to the tune of $7 million
“requires intricate maneuvers” similar to the those
used in Rettenberger. Id. at 709.
Knox argues that his scheme was not sufficiently com-
plex to warrant an enhancement for sophisticated means
because he was “simply flipping real estate” and never
attempted to conceal his identity or use fake con-
tact information. But Knox misinterprets Application
Note 8(B), which merely gives examples of conduct that
“ordinarily” warrants the enhancement, such as “hiding
assets or transactions . . . through the use of fictitious
3
Knox’s method of financing the down payment was itself
intricate—it involved him taking a portion of the sales proceeds
before there technically were any proceeds, since the closing had
not yet occurred; using the money to purchase a cashier’s check
made out in the buyer’s name, thereby concealing the true
identity of the check purchaser and the source of the down
payment; and then presenting the check to the title company as
the down payment.
12 No. 08-1571
entities, corporate shells, or offshore financial accounts.”
In no way is the note an exhaustive list of conduct re-
quired for a finding that a scheme was sophisticated,
so the fact that Knox may not have used offshore
accounts or fictitious entities is not dispositive.4
B. Number of Victims
Knox next argues that the district court’s application of
a two-level enhancement based on the number of victims
was erroneous. Section 2B1.1(b)(2)(A)(I) of the sentencing
guidelines provides that a defendant’s base offense level
should be increased by two levels if the offense involved
ten or more victims. A “victim” for purposes of this section
is “any person who sustained any part of the actual loss
determined under subsection (b)(1),” id. § 2B1.1(b)(2)(A)(I)
cmt. n.1, and “actual loss” refers to “the foreseeable
pecuniary harm that resulted from the offense,” id.
§ 2B1.1(b)(2)(A)(I) cmt. n.3.
Knox argues that the district court erred in applying
this enhancement because there was no testimony as to
whether it was the buyer or lender in each transaction
who sustained the actual loss. But this argument fails on
its face, as Knox acknowledges that, at a minimum,
4
Moreover, Knox’s use of his company’s name on the mortgage
documents to facilitate his access to the sale proceeds during at
least one closing, see supra n.2, does indicate that he used a
corporate shell to conceal his scheme, which would warrant the
enhancement even under Knox’s analysis.
No. 08-1571 13
there was at least one victim in every transaction. See
Appellant’s Br. at 19 (“[E]ither the buyer lost the money
or the lender did. Given the evidence presented, there is
no indication of which person suffered the loss.”). Knox
states that at least 21 lending institutions made loans to
24 buyers. These numbers alone justify the enhancement
because there is at least one victim in every transaction and
there were well over ten transactions—and therefore, more
than ten victims—irrespective of whether it was the buyer
or the lender that suffered the loss in each transaction. So,
even under Knox’s calculations, the scheme involved
evidence of more than the ten victims necessary for the
enhancement to apply.
Knox’s reliance on United States v. Arnaout, 431 F.3d 994
(7th Cir. 2005), is misplaced. There, the defendant used
his position as a director of a charity to solicit donations,
which he claimed would only go to support humanitarian
efforts. Id. at 997. In actuality, however, a portion of the
money was used to raise funds to support groups engaged
in armed confrontations and violence overseas. Id. at 998.
We found that the district court erred by applying the
enhancement for having more than 50 victims because the
record failed to show that the funds of all 50 donors
were illegally diverted. Id. at 997. Arnaout is inapplicable,
however, because we know that at least one person in each
of Knox’s transactions was the victim, whether it was the
buyer who purchased a home worth substantially less
than the appraised value or the lender who issued a
mortgage on a home worth substantially less than the
appraisal indicated. In Arnaout, it was unclear whether
more than 50 donors were made victims by virtue of
14 No. 08-1571
money being fraudulently diverted to other non-humani-
tarian efforts. Id. at 999. Here, it is abundantly clear that at
least one person in every transaction was a victim and that
the number of transactions exceeds ten, so the enhance-
ment was proper.
C. Amount of Gross Receipts
When a defendant “derive[s] more than $1,000,000 in
gross receipts from one or more financial institutions as
a result of the offense,” his base offense level is
increased by two levels under U.S.S.G. § 2B1.1(b)(14)(A).5
“ ‘Gross receipts from the offense’ includes all property,
real or personal, tangible or intangible, which is
obtained directly or indirectly as a result of such offense.”
U.S.S.G. § 2B1.1(b)(14)(A) cmt. n.11(B). The term “financial
institution” refers not only to banks, credit unions,
and pension funds, but also to “any similar entity
whether or not insured by the federal government.” Id.
§ 2B1.1(b)(2)(A)(I) cmt. n1.
Knox contends that the spreadsheets FDIC agent
Bergan used to explain his gross receipt calculation were
“conclusory” and insufficient to support the application
of this enhancement because none of the HUD-1 forms or
the checks on which the spreadsheets were based were
presented as evidence. However, unlike at trial, a dis-
trict judge is not constrained by the rules of evidence at
5
At the time Knox was sentenced, this was § 2B1.1(b)(13)(A);
however, the subsequent change in numbering is not material.
No. 08-1571 15
sentencing hearings. United States v. Schroeder, 536 F.3d
746, 752 (7th Cir. 2008). “In determining whether the
government has met its burden of proof at sentencing, a
court may consider information that would not have been
admissible at trial if it has sufficient indicia of reliability to
support its probable accuracy.” Id. at 753 (citation and
internal quotation marks omitted).
Bergan testified that he obtained the information re-
flecting the amount of money Knox received from cash-
iers’ checks, bank accounts, HUD-1 forms, and other
documents collected during his investigation. Knox did
not challenge this testimony or the admission of the
spreadsheets as exhibits during sentencing 6 , and the
district court correctly accepted as sufficiently reliable
Bergan’s explanation as to how he obtained the figures.
See United States v. Statham, 581 F.3d 548, 553 (7th Cir.
2009) (finding that district court’s reliance on testimony
of two cooperating witnesses, some of which was con-
6
In fact, Knox raised an entirely different challenge during the
sentencing hearing than his argument on appeal. During
sentencing, Knox argued that many of the lenders were not
financial institutions. Never before has Knox challenged the
reliability of Bergan’s calculations. Nonetheless, because it is not
clear that Knox’s failure to do so was strategic, we treat this as
a forfeiture rather than a waiver and reject Knox’s argument on
the merits. See United States v. Jaimes-Jaimes, 406 F.3d 845, 848
(7th Cir. 2005) (explaining that defendant forfeits an argument
not raised as a result of an accidental or negligent omission but
waives an argument that he selects not to assert as a matter of
strategy).
16 No. 08-1571
tradictory, was “no reason to upset the credibility deter-
minations of the district court” and that “the informa-
tion on which it depended was reliable”). We find no
error in the district court’s finding that it was more likely
than not that Knox’s gross receipts totaled more than
$1 million.
D. Organizer in Scheme Involving Five or More
Participants
Knox’s next argument concerns the district court’s
application of U.S.S.G. § 3B1.1(a), which directs the sen-
tencing judge to increase a defendant’s base offense level
by four levels “if the defendant was an organizer or leader
of a criminal activity that involved five or more partici-
pants or was otherwise extensive.” Factors to be considered
when determining whether the adjustment is warranted
include the exercise of decision-making authority, the
nature of participation in the commission of the offense,
the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of partici-
pation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control
and authority exercised over others. Id. § 3B1.1(a) cmt. n.4.
Knox contends that the four-level adjustment was
improper because the scheme only involved four partici-
pants since only four people were found criminally respon-
sible: Knox, Ciota, Wiese, and Schneider. This, however,
misreads the guidelines provision, which defines a
“participant” as “a person who is criminally responsible
for the commission of the offense, but need not have been
No. 08-1571 17
convicted.” Id. § 3B1.1(a) cmt. n.1 (emphasis added). As
such, a person need not be convicted of a crime to be
criminally responsible, and the district court properly
looked beyond the three individuals who were con-
victed (Knox, Ciota, and Wiese, all of whom pleaded
guilty) and a fourth individual who was facing charges
for his role in the scheme (Schneider) to determine the
number of participants. Those four were obvious partici-
pants, and the district court accepted the government’s
argument that the fifth participant in the scheme was
Miller, who although never criminally charged, admitted
that she knowingly participated in the scheme by ad-
vancing funds on loans that had not closed at the direction
of Schneider, who introduced Miller to Knox. Even
absent a finding that Miller was “criminally responsible”
for purposes of § 3B1.1(a), her involvement would still
indicate that the scheme was “otherwise extensive” since
Knox made use of her services.7 Accordingly, the dis-
trict court did not err by determining that the scheme
involved five or more participants.
7
This finding is bolstered by Knox’s use of other individuals
who were never charged with a crime, including Vicki Knox,
whose real estate resources were utilized to find “comparable”
sales data for Knox’s inflated target price, and Cathy Marshall,
a loan processor at Schneider’s mortgage company who repeat-
edly notarized paperwork for Knox despite knowing that Knox
was affixing the signatures of buyers and sellers. Knox does not
dispute Miller’s and Marshall’s roles in the scheme and has not
given us any reason as to why Miller’s and Marshall’s participa-
tion does not comprise a part of Knox’s otherwise extensive
scheme.
18 No. 08-1571
We also reject Knox’s assertion that he did not have a
leadership role because each participant played an indi-
vidual role and he did not exert control over any of them.
We have previously acknowledged that being “an orga-
nizer or leader does not necessarily mean that [the defen-
dant] directly controlled other individuals. Rather, the
defendant must have exercised some degree of control over
others involved in the commission of the offense or he must
have been responsible for organizing others for the pur-
pose of carrying out the crime.” United States v. Wasz, 450
F.3d 720, 729 (7th Cir. 2006). As the district court found,
Knox was an organizer because he was “the straw that stirs
the drink here,” as shown by his role as the “mastermind
of the scheme,” his recruitment of Wiese and Ciota, his
receipt of the “lion’s share” of the scheme’s proceeds, and
his exercise of decision-making authority and control over
others (e.g., his suggestions that Wiese appraise the
properties in line with Knox’s target price). The district
court’s calculation of the number of participants in the
scheme and its determination that Knox was an organizer
were both proper.
E. Waiver of Challenge to Loss Calculation
Because the loss amount was greater than $2.5 million,
Knox’s base offense level was increased by 18 levels
pursuant to U.S.S.G. § 2B1.1(b)(1). Knox initially filed an
objection to this calculation in the presentence report, but
withdrew the objection at the sentencing hearing. Before
accepting the withdrawal, the court addressed defense
counsel and Knox personally to confirm that he intended
No. 08-1571 19
to withdraw this argument. The court queried defense
counsel, “Now you’re withdrawing the 18-level objection
because you believe [counsel] that the evidence shows
more than $2.5 million?” Knox’s attorney replied, “That’s
correct, Your Honor.” The district court then asked Knox
directly, “Mr. Knox, do you agree with that?,” to which
Knox replied, “Yes, Your Honor.” The district court
followed up, asking, “Anybody force you to say that? . . .
Threatened you in any way? . . . Promised you anything to
get you to say that?” Knox replied, “No, sir.” to each
question. The district court then stated on the record that
the objection was withdrawn. Despite this colloquy, Knox
has now filed a pro se supplemental brief in which he
challenges the district court’s determination that the
amount of the loss exceeded $2.5 million.
Knox’s statements on the record evince a knowing
waiver as to the loss calculation issue. As the Supreme
Court has explained, the difference between waiver
and forfeiture is that “forfeiture is the failure to make
the timely assertion of a right, [whereas] waiver is
the ‘intentional relinquishment or abandonment of a
known right.’ ” United States v. Olano, 507 U.S. 725, 733
(1993) (citation omitted). And we have held that “a defen-
dant waive[s] his right to challenge a sentencing calcula-
tion by initially objecting to the calculation, but later with-
drawing the objection.” United States v. Kincaid, 571 F.3d
648, 654 (7th Cir. 2009) (citations omitted). Such is the case
here, where Knox initially raised an objection to the loss
calculation and then later withdrew it, as indicated in
both his and defense counsel’s statements on the record.
20 No. 08-1571
Knox’s waiver precludes our review of his challenge
to the loss calculation because “if there has been a
valid waiver, there is no ‘error’ for us to correct.” United
States v. Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994);
see United States v. Harris, 230 F.3d 1054, 1058-59 (7th
Cir. 2000) (“[W]e cannot review waived issues at
all because a valid waiver leaves no error for us to correct
on appeal.”).
III. CONCLUSION
Knox’s enhancements were proper, and the judgment
of the district court is A FFIRMED.
11-10-10