In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 06-1562, 06-1585, 06-1604
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL SPANO, SR., EMIL SCHULLO, and
BETTY LOREN-MALTESE,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 348—John F. Grady, Judge.
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ARGUED JANUARY 16, 2007—DECIDED FEBRUARY 7, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and EVANS,
Circuit Judges.
POSNER, Circuit Judge. The three defendants whose
appeals are before us were convicted along with others
of a variety of federal offenses, including mail fraud,
RICO, and money laundering, arising out of a massive
and protracted scheme to defraud the Town of Cicero,
Illinois. We affirmed the convictions but on the govern-
ment’s cross-appeal ordered the defendants resentenced.
421 F.3d 599 (7th Cir. 2005). Having determined that the
loss caused by the fraud was $10.6 million, the district
2 Nos. 06-1562, 06-1585, 06-1604
judge had then rounded this number off to below $10
million, which reduced the defendants’ guidelines sen-
tencing ranges, and the judge imposed sentences that
were within those reduced ranges. He reasoned that
$10.6 million was merely an estimate, which might there-
fore be mistaken. We held that unless the judge thought
the estimate biased, which he had not suggested he did,
he had no grounds for rounding down any more than he
would have had for rounding up, since reasonable esti-
mates are proper predicates for calculating loss. Id. at 608.
On remand the judge corrected his error but imposed the
same sentences. The defendants again appeal.
Spano had been found guilty not only of fraud and RICO
violations but also of tax offenses. The judge treated the
fraud and RICO offenses as one group of offenses and the
tax offenses as another. The offense level for the first group
under the federal sentencing guidelines was 27, and for
the second 30, and the guidelines’ grouping rules pro-
duced a combined offense level of 32. See U.S.S.G. § 3D1.4.
This put Spano in the 135-months to 168-months guide-
lines range, and the judge sentenced him to 151 months
for the RICO violation and gave him shorter concurrent
sentences for the other offenses. Spano complains that
while it was the tax offenses that drove him to level 32, the
statutory maximum sentence for those offenses was only
60 months. But that is irrelevant to calculating his guide-
lines range. The highest guidelines range of the grouped
offenses is the defendant’s guidelines range even if the
top of the range exceeds the statutory maximum for the
offense in question, provided that his sentence does not
exceed the statutory maximum for the count or counts of
conviction on which it was imposed. U.S.S.G. § 3D1.3(a)
and Application Note 2; § 3D1.4; § 5G1.2(d) and Applica-
Nos. 06-1562, 06-1585, 06-1604 3
tion Note 1; United States v. De la Torre, 327 F.3d 605, 609-11
(7th Cir. 2003); United States v. Griffith, 85 F.3d 284, 289-90
(7th Cir. 1996). (Although it is not material in this case,
consecutive sentences if otherwise proper are to be used
to jack up the defendant’s overall sentence into the higher
guidelines range when the sentence imposed on the
count carrying the highest statutory maximum is below
that guidelines range, provided of course that none of the
consecutive sentences exceeds the statutory maximum
sentence for the crime for which the sentence is imposed.
Id. at 289 n. 2; see also U.S.S.G. § 5G1.2(d) and Application
Note 1.)
Spano argues that this scheme is irrational. The argument
misses the mark. Even though the guidelines are no longer
mandatory, the judge must compute the guidelines range.
He is not bound to sentence within it, but if he does the
sentence is presumed by us (that is, by the appellate
court) to be reasonable. United States v. Gama-Gonzalez,
469 F.3d 1109, 1110-11 (7th Cir. 2006); United States v.
Mancari, 463 F.3d 590, 597 (7th Cir. 2006). Spano points to
no circumstances that make his sentence unreasonable; his
contention is that the guidelines are unreasonable in
determining the sentencing ranges as they do, that is, by
permitting a guidelines range that exceeds the statutory
maximum to influence the guidelines range for another
offense of conviction that has a higher statutory maximum.
United States v. Booker, 543 U.S. 220 (2005), and the cases
following it, do not invalidate the guidelines. E.g., United
States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir. 2005);
United States v. King, 454 F.3d 187, 196 (3d Cir. 2006); United
States v. Crosby, 397 F.3d 103, 111-12 (2d Cir. 2005). Exer-
cises of lawfully delegated legislative authority, United
States v. Booker, supra, 543 U.S. at 241-43 (“the Commission
4 Nos. 06-1562, 06-1585, 06-1604
is an independent agency that exercises policy-making
authority delegated to it by Congress”); United States v.
Williams, 408 F.3d 745, 756 n. 7 (11th Cir. 2005), particular
guidelines can be invalidated by a court only if they violate
the defendant’s constitutional rights. Booker holds that
the sentencing judge is not bound by the guidelines—
they are merely advice to him, and he is not required to
take the advice—and so he can (and in some cases must,
because he is bound by the sentencing considerations
set forth in 18 U.S.C. § 3553(a)) sentence outside the
guidelines range if the guidelines sentence would not fit
the circumstances of the defendant’s case. By failing to
show that there is something special about his situation
that makes his guidelines sentence unreasonable, Spano
is left only with a claim that allowing the guidelines
range for one crime to influence the sentence for another
is unreasonable, that is, a violation of due process; and
we cannot think of any reason why it should be. Spano’s
tax offenses were more serious, and therefore merited
a heavier sentence, than they would have been had they
not been incident to a RICO offense that involved cor-
rupting a government.
Schullo received a sentence of 71 months, which was the
top of the guidelines range applicable to him. He argued
at sentencing that he should receive a lower sentence
because “life in prison for a police officer [he is a former
police chief of Cicero] . . . is very difficult,” as the other
criminals don’t like police. The judge rejected the argu-
ment, saying that the sad lot of a policeman inmate “is not
something that in my view should be considered by way
of reducing the sentence that would otherwise be appro-
priate. There should be no favorable treatment of a dis-
honest policeman simply because his prison time might be
harder than average.”
Nos. 06-1562, 06-1585, 06-1604 5
In effect Schullo is arguing that the severity of a prison
sentence has two dimensions: its length, and the harshness
of the conditions, and that the harsher the conditions the
shorter the sentence should be. There is enough merit to the
argument to allow a sentencing judge to take it into
account, Koon v. United States, 518 U.S. 81, 111-12 (1996), but
not enough merit to make a judge who refuses to do so
unreasonable, at least when the sentence he imposes is
within the guidelines range. It would complicate sen-
tencing enormously to require that the length of every
sentence vary by the conditions of confinement, especially
since those conditions vary widely across federal prisons
and can change over the course of a defendant’s imprison-
ment because prisoners are moved around both in and
between prisons. The Federal Bureau of Prisons decides
where to house a federal prisoner, and its decision may
change over the course of his imprisonment. The prison
decides where within the prison to place a particular
inmate at a particular time. The sentencing judge thus
doesn’t know the conditions in which the defendant
will serve all or most or some of his sentence.
And though an endangered prisoner might find himself
in a segregation unit, he might instead find himself in a
minimum-security prison where he would face fewer
threats from the other prisoners. Minimum-security prisons
tend to house white-collar offenders, who are less likely
either to be violent or to harbor animosity toward police
officers, who probably had little to do with their appre-
hension. Schullo is a white-collar criminal, so there is no
reason to think him ineligible for such a prison.
We come finally to Loren-Maltese, the former Town
President (i.e., mayor) of Cicero. She complains because the
$10.6 million loss attributed to her as to the other defen-
6 Nos. 06-1562, 06-1585, 06-1604
dants occurred in part before she joined the conspiracy,
and also because the judge made a four-level upward
departure in her guidelines range, from 57 to 71 months to
87 to 108 months, for what he considered her extra-
ordinary abuse of trust. The judge thought her to blame
for the earlier loss because when she joined the con-
spiracy she helped to cover it up. Generally, the sentence of
a late-joining conspirator is not enhanced because of
the crimes that other conspirators committed before he
joined. U.S.S.G. § 1B1.3, Application Note 2; United States v.
Diamond, 378 F.3d 720, 726-27 (7th Cir. 2004). But if he helps
to cover up those crimes, he becomes liable for a sentencing
enhancement as an aider and abettor. U.S.S.G. §§
1B1.3(a)(1)(A), (B); United States v. Irwin, 149 F.3d 565, 570-
71 (7th Cir. 1998); Cupit v. Whitley, 28 F.3d 532, 541 (5th Cir.
1994); United States v. Carreon, 11 F.3d 1225, 1235-38 and n.
60 (5th Cir. 1994); United States v. Ray, 688 F.2d 250, 252-53
(4th Cir. 1982). Loren-Maltese became an aider and abettor
when she covered up the earlier crimes.
The four-level upward departure was an error, but a
harmless one. The proper procedure under Booker, as we
have explained in a number of cases, is for the sentenc-
ing judge first to compute the guidelines range and then
to apply the sentencing factors in 18 U.S.C. § 3553(a) in
order to decide whether the sentence should be inside or
outside the range. E.g., United States v. Robinson, 435 F.3d
699, 700-01 (7th Cir. 2006); United States v. Cunningham,
429 F.3d 673, 675 (7th Cir. 2005). Departures create new
guidelines ranges and thus deflect the sentencing judge
from consideration of the statutory sentencing factors. For
having exercised discretion to make the departure and
find a new range, he is unlikely to think a further exercise
of discretion necessary before he can be confident that a
Nos. 06-1562, 06-1585, 06-1604 7
sentence within the new range is the proper sentence. But
it is necessary, because he has to apply the statutory
sentencing factors if he is asked to do so by a party.
Departures were an essential safety hatch in the pre-
Booker world because the guidelines were mandatory
then, so that every sentence (except statutory maximum
and minimum sentences) had to be fitted into the guide-
lines scheme. With the guidelines advisory, the de-
parture safety hatch, constrained as it was by the require-
ment that departures be consistent with the structure of
the guidelines, e.g., United States v. Castro-Juarez, 425 F.3d
430, 434 (7th Cir. 2005), is a superfluous way station
en route to application of the more capacious statutory
sentencing factors. In short, “after Booker, which rendered
the Guidelines advisory, departures have become obso-
lete.” United States v. Blue, 453 F.3d 948, 952 (7th Cir. 2006).
But the judge’s error was harmless; for that matter, if
he erred in thinking Loren-Maltese responsible for the
entire $10.6 million loss, that was harmless too. It
is apparent that he thought she should be punished
severely for corrupting the office of mayor and that she was
blameworthy for having covered up the malefactions of the
earlier joiners of the conspiracy. These judgments were
proper, sensible exercises of discretion, well within the
boundaries set by section 3553(a). The judge has made
abundantly and persuasively clear why he thinks a guide-
lines sentence made without consideration of Loren-
Maltese’s egregious abuse of trust would fail to comply
with the statute. No more is required.
AFFIRMED
8 Nos. 06-1562, 06-1585, 06-1604
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-7-07