In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐2353
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENNETH A. DACHMAN,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11‐cr‐00504— James B. Zagel, Judge.
ARGUED JANUARY 9, 2014 — DECIDED FEBRUARY 18, 2014
Before MANION and SYKES, Circuit Judges, and GRIESBACH,
District Judge.*
MANION, Circuit Judge. Kenneth Dachman was indicted by
a grand jury on eleven counts of wire fraud for stealing funds
elderly individuals had invested in his three sleep‐related
illness‐treatment companies. He pleaded guilty to all eleven
*
William C. Griesbach, Chief District Judge for the Eastern District of
Wisconsin, sitting by designation.
2 No. 13‐2353
counts and, at sentencing, the district court denied him credit
for acceptance of responsibility and sentenced him to 120
months’ incarceration. On appeal, Dachman argues that the
district court erred in calculating the loss amount, by denying
him credit for acceptance of responsibility, and by imposing an
“objectively unreasonable” 120‐month term of imprisonment
in light of his severe infirmities. We affirm.
I. Factual Background
Beginning in June 2008, and continuing until September
2010, Dachman promoted and participated in a scheme to
defraud investors. He operated three sleep‐related illness‐
treatment companies and sold shares of these companies to the
public. Through his offer and sale of these shares, Dachman
raised over $4 million from fifty‐one investors.
From the outset, Dachman engaged in a pattern of decep‐
tion. Between July 2008 and January 2009, he falsely repre‐
sented to fifteen investors that their combined invested funds
of approximately $1.4 million would be used to operate one of
Dachman’s sleep‐treatment companies when, in fact, he had
used almost $1 million of those funds for purely personal
reasons, including over $200,000 on personal stock trading,
over $180,000 on a tattoo parlor, and over $160,000 in checks
payable to him and his wife. During this time, the businesses
had not yet received any income.
But Dachman’s false representations did not begin and end
with his deceptions about the status of investments in his
sleep‐related illness‐treatment businesses. The falsehoods also
pervaded his personal narrative, which was vital to secur‐
ing—and retaining—investors. Dachman represented to
No. 13‐2353 3
prospective investors that he personally guaranteed the
repayment of their principal, but in reality he did not have the
assets to do so. He represented to potential and actual inves‐
tors that he was a successful businessman and researcher when
his seven bankruptcies obviously proved otherwise. And he
falsely represented to prospective investors and investors that
he had obtained a Ph.D. from Northwestern University when
in reality he had never even attended that institution.
Unsurprisingly, due to Dachman’s deceptions and theft, his
companies did not have sufficient revenue to pay the necessary
returns to investors. Nor did he have the financial ability to
personally guarantee the investors’ principal, contrary to his
prior representations. Consequently, the investors brought suit
against Dachman and secured judgment in the amount of $2.5
million. Duff v. Dachman, No. 10‐cv‐06162 (N.D. Ill., July 11,
2011). Records reflected that Dachman spent the stolen funds
on a tattoo parlor; family vacations and cruises to Italy,
Nevada, Florida and Alaska; a new Land Rover; rare books;
and to fund personal stock trading and gambling.
On July 26, 2011, subsequent to this civil judgment, a
federal grand jury returned an eleven‐count indictment
charging Dachman with wire fraud. On July 31, 2012, he
attempted to enter a plea of nolo contendere. On October 3, 2012,
Dachman withdrew his plea and pleaded guilty to all eleven
counts of the indictment. Along with his plea, he submitted a
plea declaration whereby he admitted that he was “guilty of
taking approximately $700,000 dollars in bonuses and fees
above reasonable salary”; that he was “guilty of making
personal guarantees or returns on investments without
sufficient means to support them”; and that he was “guilty of
4 No. 13‐2353
failing to make clear to investors [his] educational and gradu‐
ate credentials.” The district court accepted the guilty plea and
set the matter for sentencing.
On January 17, 2013, the district court held a sentencing
hearing where, among other things, it heard testimony from
three victims of Dachman’s fraud. At this hearing, Dachman
raised objections to the PSR’s calculation of the guidelines on
loss and acceptance of responsibility. With respect to loss,
Dachman argued that the correct calculation of the loss amount
should be $700,000—the amount by which he personally
benefitted—which would result in a 14‐level increase under
the guidelines. The government maintained that the proper
calculation of the loss amount was approximately $4 million,
which would result in an 18‐level guideline increase. The
government argued that this number was appropriate because
the pool of funds the victims lost by investing with Dachman
was $4 million.
The district court found that the appropriate loss amount
under Guideline § 2B1.1(b) was the approximately $4 million
investors lost. Accordingly, the court applied an 18‐level
enhancement. The district court also rejected Dachman’s
argument that he warranted a two‐level reduction for accep‐
tance of responsibility under Guideline § 3E1.1(a). In his
allocution at the sentencing hearing, Dachman claimed he was
not the one who asked investors for money, that the business
was a success, and that his partner, Scott A. Wolf, was
responsible for raising money and communicating with
investors. The district court recognized that Dachman stated
the “absolute minimum” that qualified him to proceed with a
No. 13‐2353 5
guilty plea, but found that he did not “fully accept responsibil‐
ity for the damage he did, for his base motives in doing it[.]”
The district court then heard argument from the parties
about the appropriate sentence under the factors set forth in 18
U.S.C. § 3553(a). Dachman’s primary argument in mitigation
was that the Bureau of Prisons (BOP) was insufficiently
equipped to handle his medical conditions. Dachman’s medical
conditions include morbid obesity, diabetes, hypertension,
hyperlipidemia, severe gout, colon cancer, and coronary artery
disease. At sentencing, Dachman’s counsel stated: “[O]ne of
the conditions the Court should consider is the necessity for
medical treatment.” Dachman’s counsel argued that he
required specialists to address his medical issues on a “regular
basis” and presented the testimony of his brother, Dr. Carey
Dachman, at sentencing. The focus of Dr. Dachman’s testimony
was that the BOP only provided physician assistants and that
they were ill‐equipped to treat Dachman. Dachman’s counsel
expressed his belief that the BOP could not provide adequate
life‐sustaining treatment. “The very easy, economic and
insurance reason is that malpractice insurance will not cover a
specialist doctor going into an inmate population to treat an
inmate. That the best Mr. Dachman in prison can expect is to
be seen by physician assistants and the occasional visit from a
general internist[.]”
The government countered that the BOP could provide
adequate medical care for Dachman. The government had
submitted Dachman’s publicly‐filed medical records to the
BOP, and provided the district court with a letter from Dr. Paul
Harvey dated October 24, 2012, attached to the PSR, that
outlined Dachman’s medical issues and affirmed that the BOP
6 No. 13‐2353
had facilities that could provide the necessary medical treat‐
ment for defendant.
In announcing its sentence, the district court stated: “I think
this was a very damaging offense for individuals[.]” The
district court noted that the offense “occurred after what
appears to be many, many years of deceptive conduct, one
conviction for deceptive practices; a civil litigation strategy
that, to my mind, speaks a guilty mind.” Further considering
his history and circumstances, the district court recognized that
Dachman had evaded the law and punishment for his behavior
for many years. The district court found Dachman needed
deterrence and he did not have respect for the law, stating:
“There are instances which indicate that he does not respect
the law, does not abide by the law, looks around for ways to
avoid the law. Perhaps the most unfortunate thing is that he
didn’t pay a greater penalty for his prior business practices[.]”
In addressing Dachman’s primary argument in mitigation,
the district court determined that there were BOP medical
facilities that had the ability to care for him, and thus rejected
his position that he couldn’t be sent to prison. The district court
stated: “I recognize his medical issues, and in this case, I will
not order his surrender to custody until a reasonable arrange‐
ment has been made for his incarceration.” The district court
stated that there were medical facilities offered by the BOP,
such as in Springfield, Missouri. The district court also noted
there was a medical center in Butner, North Carolina. The
district court stated that, at these facilities, there were special‐
ists available to treat inmates, and not just generalists and
physician assistants.
No. 13‐2353 7
The district court then announced its sentence and sen‐
tenced Dachman to 120 months’ imprisonment, which was
within his sentencing guideline range of 108 to 135 months’
imprisonment. The district court scheduled a status hearing to
allow Dachman to recommend a BOP facility for his incarcera‐
tion.
After the sentencing hearing, the parties appeared a final
time before the district court. The government presented
further information from Dr. Harvey about the BOP facilities
available to treat Dachman. And Dachman submitted a letter
claiming that no BOP facility could care for him and so he
would not be taking the court up on its invitation to submit a
recommendation.
On June 13, 2013, the district court entered the judgment
and commitment, which identified all the terms of its sentence
that it had announced on January 17, 2013. On July 3, 2013,
Dachman asked the district court to stay his surrender date
and supplied more medical information. The government filed
a response objecting to the stay and submitted additional
information that the BOP was ready to care for Dachman.
The district court denied Dachman’s motion to stay the
surrender date. Dachman then filed a motion for bond pending
appeal and the government filed its response. The district court
held a hearing on the matter, considered the information from
both parties, and heard testimony from Dachman’s BOP
treating physician, Dr. Derrick Phillips, telephonically from
Butner, North Carolina. After considering the information
presented, the district court denied Dachman’s motion for
bond pending appeal. This appeal followed.
8 No. 13‐2353
II. Discussion
On appeal, Dachman argues that the district court erred (1)
in calculating the loss amount, (2) by denying him credit for
acceptance of responsibility, and (3) by imposing an “objec‐
tively unreasonable” 120‐month term of imprisonment in light
of his severe infirmities.
Dachman first argues that the district court incorrectly
calculated his guidelines range in this case because the district
court failed to credit him with $2,175,953.34 in operational
expenditures incurred by his business entities. Dachman
argues that if the district court had given him credit for
operational expenditures, “[t]his adjusted loss figure would
have yielded a 16‐point upward adjustment pursuant to
U.S.S.G. § 2B1.1(b)(1)(I) (loss of more than $1 million), rather
than the 18‐point upward adjustment that was made on the
basis of the $4,037,020.54 loss figure pursuant to §2B1.1(b)(1)(J)
(loss of more than $2.5 million).” The government asserts that
this argument is forfeited because it was not presented to the
district court. In Dachman’s sentencing memorandum, he
argued that the loss calculation in this case should be $772,784,
which he identified as his gain or the amount that he claims he
benefitted. Dachman goes on to argue that the enhancement
should be 14 levels for this loss amount. Dachman’s counsel
repeated this argument to the district court at the sentencing
hearing stating: “we believe that the correct calculations of the
loss should be what Mr. Dachman erroneously put into his
pocket, which we believe is in the area of $700,000.” Counsel
asked the district court to find that the loss calculation was
under $1 million, which would result in a 14‐level enhance‐
ment.
No. 13‐2353 9
The record clearly shows that Dachman invited the district
court to construe the loss as Dachman’s gain in the amount of
$772,784—an amount that advises a 14‐level enhancement. But
on appeal, Dachman abandons this argument.1 Instead, he
argues that the proper calculation looks to the amount actually
spent on business expenditures—in this case some $2.17
million—that when deducted from the $4 million pool, results
in an amount that advises a 16‐level enhancement. Dachman’s
business expenditure argument—freshly‐crafted on ap‐
peal—was not presented to the district court, so it is forfeited.
United States v. Middlebrook, 553 F.3d 572, 577 (7th Cir. 2009)
(holding that an argument on appeal regarding the loss
amount under the guidelines that differed from the argument
raised in the district court was forfeited).
A forfeited issue is reviewed for plain error. United States v.
Richardson, 238 F.3d 837, 841 (7th Cir. 2001). “The plain error
standard allows appellate courts to correct only particularly
egregious errors for the purpose of preventing a miscarriage of
justice.” United States v. Conley, 291 F.3d 464, 470 (7th Cir.
2002). The district court did not commit plain error when it
imposed an 18‐level enhancement on Dachman. Application
Note 3(A)(i) to Guideline § 2B1.1 defines “actual loss” as
“reasonably foreseeable pecuniary harm that resulted from the
offense.” The guidelines further define “reasonably foreseeable
1
Appellant Br. 9 n.5 (“This Brief will not argue, as defense counsel did at
sentencing, that loss should be measured by the amount of the defendant’s
gain.”). Dachman likely abandons this argument because Application Note
3(B) to Guideline § 2B1.1 states that gain to a defendant shall be used only
when loss cannot be reasonably determined (as it can and has been in this
case).
10 No. 13‐2353
pecuniary harm” as “pecuniary harm that the defendant knew
or, under the circumstances, reasonably should have known
was a potential result of the offense.” U.S.S.G. § 2B1.1, App.
Note 3(A)(iv). This number consists of the “amount put at risk”
by the defendant who misappropriated the money. United
States v. Swanson, 483 F.3d 509, 513 (7th Cir. 2007); United States
v. Bonanno, 146 F.3d 502, 509–10 (7th Cir. 1998) (“The relevant
inquiry is not ‘How much would the defendants probably have
gotten away with,’ but, rather, ‘How many dollars did the
culprits’ scheme put at risk?’”).
In this case, the public harm is the loss suffered by fifty‐one
investors totaling $4 million. Dachman argues that Swanson
holds that “loss cannot include the value of services a defen‐
dant legitimately performed for the victims of his fraud.”
Appellant Br. 21 (quoting Swanson, 483 F.3d at 509). But this
argument ignores the fact that the “services” Dachman’s
investors sought in connection with their investment were the
opportunity to bring to the market fully‐capitalized
sleep‐illness treatment businesses. Dachman’s theft doomed
these enterprises and ensured their collapse. The investors
received no legitimate performance. Accordingly, the district
court did not commit any error—let alone plain error—when
it imposed an 18‐level enhancement on Dachman because
fraud involving some of the funds placed the entire $4 million
pool of funds at the risk of loss.
Next, Dachman argues that he is entitled to a two‐level
reduction for acceptance of responsibility. Application Note to
Guideline § 3E1.1 states that “A defendant who enters a guilty
plea is not entitled to an adjustment under this section as a
matter of right.” On the contrary, whether a defendant has
No. 13‐2353 11
fully accepted responsibility for his offenses is “a finding of
fact to be made by the trial court, and is based largely on the
sentencing judge’s determinations regarding the defendant’s
credibility and conduct.” United States v. Frykolm, 267 F.3d 604,
610 (7th Cir. 2001). We give great deference to the sentencing
judge because he is in a “unique position to evaluate a defen‐
dant’s acceptance of responsibility.” Id. at 610–11. Conse‐
quently, we review a district court’s decision not to apply a
two‐level guidelines reduction for acceptance of responsibility
for clear error. Id. at 611.
The evidence was more than sufficient to support the
district court’s conclusion that Dachman did not qualify for a
two‐level acceptance of responsibility reduction. Dachman’s
affirmative representations in both his written statement
submitted to the district court prior to sentencing and his
allocution to the district court at sentencing demonstrated that
he failed to accept responsibility for his fraudulent conduct. In
his written statement, he made numerous couched admissions
of guilt. For example, he indicated that he “never intended to
defraud or harm anyone.” He also claimed the “absolute
right” to set his own “salary” and that he took “fees” in
“advance” based on purported Medicare reimbursements he
expected to receive in the future. At sentencing, the district
court observed that he had stated the “absolute minimum” that
qualified him to proceed with a guilty plea. The district court
acknowledged that “he did do enough for the guilty plea, but
acceptance of responsibility requires something broader than
that. He accepts responsibility that he is the one responsible for
the failure; he does not, in my view, fully accept responsibility
for the damage he did, for his base motives in doing it[.]”
12 No. 13‐2353
Dachman’s couched admission of guilt continued through
sentencing, where he stated “[t]here are so many facts and
details that have not been adjudicated because I chose to plead
guilty. I did so at the advice of physicians. Based upon what
was said in here, I think perhaps I made a mistake.” Dachman
also claimed he was not the one who asked investors for
money, that the business was a success, and that his partner,
Scott A. Wolf, was the individual responsible for raising
money and communicating with investors. The district court
considered these statements and stated:
… I’ve heard it many times in fraud cases that
somebody said, “I didn’t sell the land, I didn’t pitch
the investment.” In some cases, its absolutely true,
so what you look to is the person who took the
money, and that, in this case, was this defendant. I
don’t accept the idea that this was an accident, a
misjudgment. I think it was greed.
Given these facts, the district court’s decision to withhold
the two‐level reduction for acceptance of responsibility is well‐
supported by our precedent.2 See United States v. Ali, 619 F.3d
713, 720 (7th Cir. 2010) (“blaming someone else for one’s own
actions or minimizing one’s involvement in the offense is not
the sort of genuine contrition the acceptance of responsibility
2
The government also argues that Dachman’s initial attempt to plead nolo
contendere—a theory that by its own terms involves no admission of facts or
acceptance of responsibility—precludes him from receiving a sentencing
reduction for acceptance of responsibility. We need not consider this
question, though, because the other facts were more than sufficient to justify
the district court’s denial of acceptance of responsibility.
No. 13‐2353 13
reduction seeks to reward”); United States v. Zehm, 217 F.3d
506, 515‐516 (7th Cir. 2000) (withholding acceptance of respon‐
sibility reduction when the defendant denied responsibility for
the full extent of his involvement in the charged conspiracy in
a statement at odds with witness testimony). In this instance,
Dachman’s expression of regret for pleading guilty and then
attempting to shift the blame at his own sentencing hearing is
not the sort of contrition that warrants a two‐level reduction
for acceptance of responsibility. Consequently, the district
court’s decision not to reduce Dachman’s sentence was not
clear error.
Dachman’s final argument is that his within‐guidelines 120‐
month sentence should be vacated because it is objectively
unreasonable in light of his severe infirmities. “We review a
district court’s sentencing determination both for procedural
soundness and for substantive reasonableness.” United States
v. Patrick, 707 F.3d 815, 818 (7th Cir. 2013). Although Dachman
could be clearer, it appears that he is raising both procedural
and substantive challenges to his sentence, so we address each
argument in turn.
A. Dachman’s challenge to the procedural soundness of his
120‐month sentence
“We review the procedural challenge de novo.” United States
v. Brown, 732 F.3d 781, 785 (7th Cir. 2013). Dachman argues
that his sentence was procedurally unreasonable because the
district court failed to properly weigh the § 3553(a) factors in
14 No. 13‐2353
fashioning his sentence.3 He argues that the district court failed
to adequately consider the factors of § 3553(a)(1) (directing
courts to consider the history and characteristics of the defen‐
dant) and § 3553(a)(2)(D) (directing courts to consider the need
for medical care and other correction treatment in the most
effective manner).
Dachman’s principal argument in mitigation at his sentenc‐
ing hearing was that he should be given home confinement
rather than incarceration because the BOP is unable to care for
him due to his morbid obesity (the PSR filed indicates that he
weighs 440 pounds); severe uncontrolled kidney disease;
3
As a preliminary matter, we note that Dachman’s evidentiary support for
this mitigation argument includes, in part, medical evidence introduced in
the district court after his sentence was imposed. Appellant Br. 35–40; Reply
Br. 20–23. At the conclusion of Dachman’s sentencing hearing the district
court stated: “I will expect to see counsel in about two weeks time to report
to me on the status of the surrender to serve the sentence that’s been imposed.”
Sent. Tr. 53 (emphasis added). But as the government points out, most of
the record that Dachman cites regarding his various medical issues are
matters that were brought before the district court post‐sentencing and
were not part of the sentencing record. Gov’t Br. 37. Dachman’s concession
on this point is qualified (“[t]he government is half correct”), but he
candidly concedes that the district court could not have considered this
material prior to sentencing. Reply Br. 20 (“Certain information set forth in
Mr. Dachman’s opening brief on the topic of the substantively reasonable
sentence was, indeed, unknown to the District Court at the time the
sentence was pronounced.”). On appeal, we only consider evidence that
was properly and timely introduced before the district court. Consequently,
we confine our review of the procedural soundness of Dachman’s sentence
to the record and the arguments he advanced in the district court through
the conclusion of his January 17, 2013 sentencing hearing.
No. 13‐2353 15
history of kidney cancer with one kidney removed and the
other barely functional; partially uncontrolled diabetes; gout
and arthritis; neuropathy; aggressive heart‐disease with history
of stenting; hypertension; history of metastatic colon cancer;
and diabetic retinopathy with risk of blindness. Dachman
argues that the district court failed to consider this argument
in mitigation when it imposed his sentence.
Dachman’s contention, however, is belied by the record.
After hearing and considering testimony on this precise issue
from Dachman’s brother, a medical doctor, the district court
stated: “I recognize [Dachman’s] medical issues, and in this
case, I will not order his surrender to custody until a reason‐
able arrangement has been made for his incarceration.” The
district court then stated that there were adequate BOP medical
facilities in Springfield, Missouri, and Butner, North Carolina.
The district court stated further that, at these facilities, there
were specialists available to see inmates, and not just general‐
ists and physician’s assistants. Thus, the district court undeni‐
ably considered and rejected Dachman’s principal argument in
mitigation that he should not be incarcerated because no BOP
facility could care for him. United States v. Diekemper, 604 F.3d
345, 355 (7th Cir. 2010) (“the fact that the district court ac‐
knowledged this argument is dispositive—as long as a
sentencing court considers the arguments made in mitigation,
even if implicitly and imprecisely, the sentence imposed will
be found reasonable.”). Simply because the district court
disagreed with the weight Dachman believes his mitigation
argument is worth does not prove that the district court failed
to consider it. United States v. Haskins, 511 F.3d 688, 696 (7th
16 No. 13‐2353
Cir. 2007); United States v. Dean, 414 F.3d 725, 729–30 (7th Cir.
2005).
“The court is required to consider aggravating and mitigat‐
ing factors under 18 U.S.C. 3553(a) before imposing a sentence.”
United States v. Vizcarra, 668 F.3d 516, 527 (7th Cir. 2012)
(emphasis added). That is exactly what it did in this case. After
the district court considered Dachman’s mitigation argument,
it imposed a sentence of 120 months on him. After imposing
Dachman’s sentence, the district court then concluded its
remarks by inviting Dachman and his counsel to return to
court for a status hearing to recommend a BOP facility for his
incarceration. So not only did the district court explicitly take
Dachman’s infirmities into consideration before imposing his
sentence, he recognized those problems by affording Dachman
the opportunity to recommend the facility he and his physi‐
cians deemed best‐suited to care for him. The district court’s
concern for Dachman also resulted in the delay of his surren‐
der to the authorities until after a suitable BOP placement was
determined—more than six months after sentencing.
The thrust of Dachman’s argument is that the district
court’s findings were not specific enough. But we do not
require a district court to make specific findings concerning the
§ 3553(a) factors so long as it is clear he considered them and
we are able to review the sentence, which it did and we are.
United States v. Collins, 640 F.3d 265, 271 (7th Cir. 2011) (hold‐
ing that so long as the district judge has considered the applica‐
ble sentencing factors and the arguments made by the parties,
then the judge has satisfied the review standards which must
be met) (emphasis in original). Here, the sentencing transcript
reflects that the district court considered: (1) the § 3553(a)
No. 13‐2353 17
factors, (2) the written and oral testimony of Dachman’s
physicians, and (3) the written submissions the government
received from the BOP prior to concluding that the BOP could
care for him and that a within‐guidelines sentence was
warranted. After considering the § 3553(a) factors at
Dachman’s sentencing hearing and his primary argument in
mitigation (that his health was too poor to be incarcerated and
that the BOP could not adequately care for him), the district
court concluded that the presumptively reasonable, within‐
guidelines sentence of 120 months was appropriate given that
Dachman’s conduct caused a number of elderly individuals to
lose significant sums of money and in light of his otherwise
sordid “business” history.4 And we bear in mind that a within‐
guidelines sentence (as here) requires less explanation. United
States v. Lyons, 733 F.3d 777, 785 (7th Cir. 2013). Consequently,
the district court did not err by imposing a presumptively
reasonable, within‐guidelines, 120‐month sentence on
Dachman. See United States v. Pilon, 734 F.3d 649, 656 (7th Cir.
2013) (rejecting § 3553(a)(1) and § 3553(a)(2)(D) mitigation
arguments for reduction or relief from sentence where wire
fraud defendant suffered from sarcoidosis, asthma, an irregu‐
4
The record indicates that throughout at least some period of the duration
of Dachman’s theft he received monthly disability income of $1,450.00. See
Supplemental Report filed by the Office of the Chief Probation Officer at 2
(filed January 15, 2013). So while Dachman was stealing from investors he
was simultaneously representing to the government (falsely, based on
Dachman’s own description of his activities in the “Explanation of Events
Leading to the Indictment” he filed in this case) that he was unable to work.
18 No. 13‐2353
lar heartbeat, a fused vertebrae in her spine, suffered from
growths in her eyes, and vision problems).
B. Dachman’s challenge to the substantive reasonableness
of his 120‐month sentence
Finally, it appears that Dachman also raises a substantive
reasonableness argument. “Our review of the substantive
reasonableness of the sentence is more deferential; we look
only for an abuse of discretion.” Brown, 732 F.3d at 785. “A
correctly calculated, within‐guidelines sentence is entitled to a
presumption of reasonableness.” Pilon, 734 F.3d at 656. As he
concedes, Dachman’s “120‐month sentence was within the
advisory sentencing guideline range,” so the burden he must
overcome to prove its unreasonableness is a hefty one. Appel‐
lant Br. 29. Nevertheless, Dachman argues that it was objec‐
tively unreasonable for the district court to incarcerate him
given his litany of health problems. But the sick “do not have
a license to commit crime.” United States v. Moreland, 703 F.3d
976, 991 (7th Cir. 2012). And as the record makes clear, the
district court concluded, based on supporting evidence from
the government, that the BOP can care for Dachman. Accord‐
ingly, Dachman’s infirmities do not render his within‐guide‐
lines sentence unreasonable and it was not an abuse of discre‐
tion for the district court to sentence him to 120 months’
imprisonment.
III. Conclusion
The district court calculated the loss at $4,000,000, and that
finding was not plain error. Rather, it represented the amount
investors lost due to Dachman’s fraud. The district court also
did not abuse its discretion in denying Dachman a two‐level
No. 13‐2353 19
reduction for acceptance of responsibility, given Dachman’s
statements minimizing his responsibility and placing blame on
others. Finally, the district court’s within‐guidelines sentence
of 120 months was both procedurally and substantively sound.
The district court considered the §3553(a) factors, including
Dachman’s arguments based on his numerous health issues.
For these reasons, we AFFIRM Dachman’s 120‐month sen‐
tence.