NONPRECEDENTIAL DISPOSITION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
Submitted March 26, 2014
Decided April 23, 2014
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐3792
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 11‐30028‐001
WALTER HOLMICH, Sue E. Myerscough,
Defendant‐Appellant. Judge.
O R D E R
Between 2006 and 2011 Walter Holmich managed several businesses that, without
any intention ever to pay their subcontractors, procured government contracts. He pleaded
guilty to four counts of wire fraud and was sentenced within the guidelines range to 130
months’ imprisonment; he was also ordered to pay restitution of almost $800,000. Holmich
filed a notice of appeal, but his appointed counsel asserts that any appeal would be
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Holmich
opposes counsel’s motion. See CIR. R. 51(b). Counsel’s brief explains the nature of the case
and addresses the issues that a case of this kind might be expected to involve. Because the
analysis appears to be thorough, we limit our review to the points counsel has identified
and Holmich has raised. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 12‐3792 Page 2
Counsel first informs us that Holmich wishes to challenge the validity of his guilty
pleas. Because Holmich did not seek to withdraw his guilty pleas in the district court, our
review would be for plain error. See United States v. Davenport, 719 F.3d 616, 618 (7th Cir.
2013); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir. 2012). Counsel notes two
shortcomings in the plea colloquy: the district court neglected to inform Holmich that a
special assessment would be ordered, FED. R. CIV. P. 11(b)(1)(L), and that his statements
under oath during the colloquy could be used against him in a prosecution for perjury, id.
(b)(1)(A). We agree with counsel that neither shortcoming qualifies as plain error. The
omission regarding a special assessment was immaterial because the government, at the
court’s prompting, set forth the penalty structure for each offense, including the $100
mandatory special assessment, and defense counsel represented in open court that he
understood and agreed with the government’s representation. See United States v. Driver,
242 F.3d 767, 771 (7th Cir. 2001) (court’s omissions not plain error when record
demonstrated defendant “knew most if not all of what the district judge forgot to
mention”). And the court’s failure to inform Holmich that false statements under oath
might subject him to prosecution for perjury was harmless because Holmich faces no
current or prospective prosecution for perjury. See United States v. Blalock, 321 F.3d 686, 689
(7th Cir. 2003).
Holmich asserts in his Rule 51(b) response that his pleas were not knowing because
he did not understand how his guidelines range would be calculated. Federal Rule of
Criminal Procedure 11, however, requires only that district courts inform defendants that
the guidelines apply but are merely advisory, FED. R. CIV. P. 11(b)(1)(M); it does not require
district courts to discuss how the guidelines will apply in the defendant’s specific case. See,
e.g., United States v. Villareal‐Tamayo, 467 F.3d 630, 633 (7th Cir. 2006); United States v. Parker,
368 F.3d 963, 967–68 (7th Cir. 2004). A defendant’s mistake about his potential sentence
does not undermine an otherwise knowing guilty plea. See United States v. Redmond, 667
F.3d 863, 872–73 (7th Cir. 2012); United States v. Bowlin, 534 F.3d 654, 660 (7th Cir. 2008).
Counsel next considers whether Holmich could argue that the district court erred
by adopting the probation officer’s finding that the total loss for guidelines purposes was
approximately $4.5 million. At sentencing Holmich raised two objections to this figure.
First, he asserted that a particular fraudulent contract should not be considered because he
was not involved in that transaction and so it was not relevant conduct. Second, he argued
that the probation officer’s method for calculating loss overstated the loss actually incurred
by the victims. Specifically, Holmich argued that certain loss calculations should have
taken into account the 15% markup he allegedly charged the government over the price
No. 12‐3792 Page 3
charged by the subcontractor. But Holmich did not submit any evidence calling into
question the accuracy of the facts set forth in the PSR, and so the district court was entitled
to rely on the probation officer’s loss calculation. See United States v. Love, 680 F.3d 994, 999
(7th Cir. 2012); United States v. O’Doherty, 643 F.3d 209, 219 (7th Cir. 2011). Moreover,
Holmich’s objections would not have changed the guidelines calculation because, if
accepted, they would have reduced the total loss only to approximately $4 million. Because
the guidelines apply an 18‐level increase in total offense level if the defendant’s crime
results in a loss between $2.5 million and $7 million, U.S.S.G. § 2B1.1(b)(1) (2011), the same
18‐level increase would apply.
Holmich, citing Alleyne v. United States, 133 S. Ct. 2151 (2013), argues that, for
guidelines purposes, the amount of loss for which he can be held responsible is the amount
listed in the indictment, because that is the amount to which he pleaded guilty. But Alleyne
holds only that facts that increase the minimum authorized statutory punishment must be
admitted or proven beyond a reasonable doubt. Id. at 2155, 2161. It does not affect
factfinding for guidelines calculations, see United States v. Hernandez, 731 F.3d 666, 672 (7th
Cir. 2013); United States v. Claybrooks, 729 F.3d 699, 708 (7th Cir. 2013).
Holmich relatedly argues that the restitution order must be adjusted to reflect only
those losses specified in the indictment because, he insists, Alleyne requires that restitution
amounts be charged in the indictment and proven beyond a reasonable doubt. But we
repeatedly have said that Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny
(including Alleyne), do not apply to the calculation of restitution. See United States v. Wolfe,
701 F.3d 1206, 1216–17 (7th Cir. 2012) (rejecting argument that Southern Union Co. v. United
States, 132 S. Ct. 2344 (2012), extends the holding of Apprendi to restitution); United States
v. Bonner, 522 F.3d 804, 806–07 (7th Cir. 2008).1 We recognized in Wolfe that the circuits are
1
We do find errors in the restitution order, but they are harmless. First, the restitution
order includes some improper compensation: $17,730.78 of the restitution would
compensate victims for fees and costs associated with obtaining default judgments against
Holmich‐run companies, but fees or costs should not be included in restitution orders.
See United States v. Scott, 405 F.3d 615, 620 (7th Cir. 2005); United States v. Seward, 272 F.3d
831, 839 (7th Cir. 2001). Second, a typographical error affects one other award: The district
court ordered restitution of $28,413 paid to United Plastics Fabricating, Inc., but the PSR
elsewhere reports that the company lost $28,143 as a result of its contract with Holmich.
Given these inconsistent figures, we cannot say that the government proved the larger
amount by a preponderance of the evidence, as required by 18 U.S.C. § 3664(e). But the
No. 12‐3792 Page 4
split over whether restitution is a civil or criminal penalty (and thus whether Apprendi
applies to restitution orders), but the question is settled in this circuit, see 701 F.3d at
1217(recognizing circuit split and reaffirming our position). The argument has no
possibility of succeeding here. Holmich is free, if he wishes, to seek review of this question
in the Supreme Court.
Counsel next considers whether Holmich could challenge the reasonableness of his
sentence, and particularly the district court’s failure to comment on his mitigating
argument that an associate was the true mastermind behind the fraudulent scheme. But
counsel correctly concludes that any such challenge would be doomed. In discussing the
sentencing factors enumerated in 18 U.S.C. § 3553(a), the district court emphasized the
seriousness of Holmich’s offense, id. § 3553(a)(2)(A), in particular the many veterans he
harmed (two of whom testified at the sentencing hearing) and the effect his conduct had
on small businesses with whom he contracted. The court also noted Holmich’s history and
characteristics, id. § 3553(a)(1), specifically his cooperation with the prosecution and the
absence of any criminal history. Holmich’s argument about his culpability relative to his
associate was undeveloped; he never submitted a sentencing memorandum, and his
counsel’s few comments at the hearing failed to specify how Holmich was less culpable or
why any lesser culpability merited a more lenient sentence. The court thoroughly explained
the sentence and meaningfully considered the § 3553(a) factors, and so the sentence is
procedurally reasonable even though the court passed over Holmich’s undeveloped
mitigating argument. See United States v. Vaughn, 722 F.3d 918, 936–37 (7th Cir. 2013);
United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010). For the same reason, we agree with
counsel that Holmich cannot point to anything in the record to rebut the presumption of
reasonableness we afford within‐guidelines sentences. See Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Smith, 721 F.3d 904, 906 (7th Cir. 2013).
Finally, Holmich, citing Santobello v. New York, 404 U.S. 257 (1971), asserts that the
government reneged on unspecified promises it made him in order to induce him to plead
guilty. But Holmich produces no evidence of any promises, and we find none in the record.
district court also had before it evidence of $400,000 of compensable losses that it did not
include in its restitution order. Thus, any error made in the restitution order ultimately
benefited Holmich. See Greenlaw v. United States, 554 U.S. 237, 247–48 (2008) (plain‐error
doctrine should not be used to detriment of appealing party); In re Amy Unknown, 701 F.3d
749, 774 (5th Cir. 2012) (en banc) (applying Greenlaw to affirm underinclusive restitution
order), cert. granted on unrelated question, 133 S. Ct. 2886 (2013).
No. 12‐3792 Page 5
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.