NONPRECEDENTIAL DISPOSITION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 June 2, 2011
Decided August 16, 2011
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 10‐2650 Appeal from the United States District
Court for the Central District of Illinois,
United States of America, Urbana
Plaintiff‐Appellee, No. 08 CR 20068
v. Michael P. McCuskey, Judge.
Latonya M. Clavielle,
Defendant‐Appellant.
O R D E R
A jury convicted Latonya Clavielle of several counts of mail fraud and aggravated
identity theft. The district court then sentenced her to a total term of 61 months’
imprisonment and $42,169.05 in restitution, which was the total amount of credit card debt
incurred by Clavielle. Clavielle appeals, challenging her sentence and restitution on the
grounds that the loss amount was incorrectly calculated. We affirm.
No. 10‐2650 Page 2
I.
A fraud investigator for a credit card company became suspicious after noticing
multiple credit card applications coming from the same two mailing addresses. An
investigation revealed that Clavielle was obtaining credit cards by falsifying personal
records and using variations of the names, Social Security numbers, and birth dates of her
three minor children and the two minor children of her boyfriend. In total, Clavielle
submitted 162 credit card applications; 31 were accepted by four credit card companies. She
was charged with mail fraud in violation of 18 U.S.C. § 1341 and aggravated identity theft in
violation of 18 U.S.C. § 1028A, and was found guilty following a jury trial.
Prior to sentencing, the government produced to the probation office the statements
for all 31 credit cards; the total amount of debt from all the cards was $42,169.05. Based on
these statements, the probation office recommended in the presentence report a six‐level
increase in the sentencing guidelines that applies to losses of more than $30,000 but not
greater than $70,000. See U.S.S.G. § 2B1.1(b)(1)(D). This resulted in an advisory guidelines
range of 30 to 37 months’ imprisonment for the mail fraud charges.
During the sentencing hearing, both Clavielle’s counsel and Clavielle herself
explicitly stated that they had no objections to the probation office’s presentence report. The
district court then sentenced Clavielle to 37 months’ imprisonment on the counts of mail
fraud, with an additional 24 months on the counts of aggravated identity theft to be served
consecutively, for a total of 61 months’ imprisonment. The district court also ordered
restitution in the amount of $42,169.05.
II.
On appeal, Clavielle argues for the first time that the loss amount was incorrectly
calculated. Clavielle contends that the loss amount should have included only the credit
card debt incurred by Clavielle, and not the additional interest and fees. On this basis,
Clavielle challenges both her sentence and her restitution.
As a preliminary matter, the government argues that Clavielle intentionally waived a
challenge to the loss calculation when she and her counsel explicitly stated that they had no
objections to the presentence report. “Waiver occurs when a defendant intentionally
relinquishes a known right.” United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000); see also
United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010) (“[W]aiver requires a calculated
choice to stay silent on a particular matter.”). Clavielle argues that instead of a waiver, this
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is an instance of forfeiture which is reviewed for plain error. See Anderson, 604 F.3d at 1001.
We need not resolve this question, though, because even if Clavielle merely forfeited her
argument, she cannot establish plain error, i.e., a clear error that affected her substantial
rights. See United States v. Olano, 507 U.S. 725, 733‐34 (1993).
Initially we note that Clavielle is correct that the district court improperly calculated
the loss for purposes of sentencing: the application note to § 2B1.1 of the Sentencing
Guidelines says that “loss” should not include “[i]nterest of any kind, finance charges, late
fees, penalties, amounts based on an agreed‐upon return or rate of return, or other similar
costs.” U.S.S.G. § 2B1.1, cmt. n.3(D)(i). So in Clavielle’s case, for purposes of sentencing, the
loss should not have included the interest and fees of the 31 credit cards. But even if the
loss was properly calculated, it would not have made any difference to her sentencing
guidelines because the actual loss without interest and fees was not less than $30,000.
Subtracting the interest and fees from all but four credit cards gives a loss amount of
$32,504.02. For the remaining four credit cards, unfortunately, the record does not indicate
the interest and fees. But the total charges on those four remaining credit cards is only
$2,932.14, and it is not likely that $2,504.02 of this total corresponds to interest and
fees—which is what would be necessary for the loss amount for all 31 credit cards to fall
below $30,000. Thus, the loss would have remained greater than $30,000 even if the loss
was properly calculated, and the six‐level increase would still apply to Clavielle’s
guidelines range. Because the guidelines calculation was correct, this cannot constitute
plain error.
Clavielle also argues that the loss calculation affected the substantive reasonableness
of the sentence. A sentence within the guidelines, as is the case here, is presumed
reasonable. See United States v. Cunningham, 429 F.3d 673, 675 (7th Cir. 2005). During the
sentencing hearing, the judge appropriately weighed the various factors set forth in 18
U.S.C. § 3553(a) and articulated reasons for the sentence, including the seriousness of the
offense, the adequacy of deterrence, and the need to protect the public from further crimes.
There is nothing to indicate that the mistake in loss calculation affected the judge’s sentence.
Accordingly, the loss calculation was not a clear error that affected Clavielle’s substantial
rights in her sentencing.
Finally, Clavielle appeals her restitution amount of $42,169.05 because it was based
on the same loss calculation. Again, since Clavielle did not object to the restitution at
sentencing, at best, our review is for plain error. Anderson, 604 F.3d at 1001. Because she
committed a crime of fraud, Clavielle is subject to the Mandatory Victim Restitution Act, 18
U.S.C. § 3663A, and she must make restitution. Under the Act and its predecessor, the
No. 10‐2650 Page 4
Victim and Witness Protection Act, prejudgment interest can be included when calculating
restitution. See United States v. Qurashi, 634 F.3d 699, 703 (2d Cir. 2011); United States v.
Shepard, 269 F.3d 884, 886 (7th Cir. 2001). Also, the purpose of restitution is “to make the
victim whole.” United States v. Venturella, 585 F.3d 1013, 1020 (7th Cir. 2009). Here, the
government presented evidence of credit card debt incurred by Clavielle, including interest
and fees. Clavielle did not object to this evidence. Since the victims are entitled to be made
whole, it was not error for the district court to order restitution in the total amount of debt.
We AFFIRM.