UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 7, 2006
Decided May 17, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
UNITED STATES OF AMERICA, Appeal from the United
Plaintiff-Appellee, States District Court
for the Western
No. 05-3312 v. District of Wisconsin.
THOMAS FLASCHBERGER, No. 03 CR 80
Defendant-Appellant. John C. Shabaz, Judge.
Order
Our initial opinion in this case, 408 F.3d 941 (7th Cir.
2005), affirmed Flaschberger's conviction but remanded for re-
sentencing in light of United States v. Booker, 543 U.S. 220
(2005). We directed the district court to limit the award of
restitution to the years included in the counts of conviction
and to determine explicitly whether losses incurred in years
preceding the counts of conviction were part of a single scheme
or plan for purposes of the relevant-conduct rules under the
Sentencing Guidelines.
The district court complied, and Flaschberger does not con-
tend that error was committed in either respect. (Flaschberger
does dispute the finding, but that argument repackages his con-
tention, which we rejected last year, that he did not commit
No. 05-3312 Page 2
fraud in the first place.)
Flaschberger's lead contention--that "loss" under the
Sentencing Guidelines is limited to the defendant's gain--is
inconsistent with the text of U.S.S.G. §2B1.1 as well as with
Application Note 8(d), which says that when public funds are
misapplied loss means the "value of the benefits diverted from
intended recipients or uses." The district court's use of a
$900,000 loss figure is not clearly erroneous in light of the
record, which shows that (a) the colleges actually received that
sum as a result of the fraudulent certifications, yet (b) did
not offer students the services for which the federal funds
supposedly paid.
The further contention that the district court should not
have increased the offense level by two under U.S.S.G.
§2B1.1(b)(2) for more than minimal planning has not been pre-
served for appellate decision. It was not made during the first
appeal or among the subjects we instructed the district court to
revisit. Although it is true that we called for a full resen-
tencing, which potentially reopened all issues, Flaschberger did
not raise this subject in the district court during the resen-
tencing. Our review therefore is limited to a search for plain
error, of which there is none.
Flaschberger also failed to preserve for appeal his conten-
tion that the record does not support restitution of $510,322.
He conceded in the district court that if his legal approach
should be rejected then "there is no question that the appropri-
ate amount of restitution is $510,322". His legal arguments were
soundly rejected; they suppose that the prosecutor must trace
every dollar to see whether it could have done some good for
students. That's not so; it is enough to find that the federal
funds were obtained by fraudulent misrepresentation and substan-
tially misapplied.
Affirmed.