In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3494
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DEAN D. YOUNG,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16‐CR‐169 — William C. Griesbach, Chief Judge.
____________________
ARGUED SEPTEMBER 21, 2018 — DECIDED NOVEMBER 6, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir‐
cuit Judges.
HAMILTON, Circuit Judge. Defendant‐appellant Dean
Young pleaded guilty to one count of wire fraud, 18 U.S.C.
§ 1343, for defrauding the Veterans Administration (VA) re‐
garding the extent of his service‐related injuries. The district
court sentenced Young to 21 months in prison, in the middle
of the Sentencing Guideline range calculated based on the loss
amount agreed to by the parties and adopted by the court.
2 No. 17‐3494
Young appeals his sentence, arguing that the district court
committed a “plain error” by using the stipulated loss amount
of $201,521.41 to calculate both his guideline range and the
amount of restitution. We affirm. Young waived any objection
to the loss amount. This was not merely a forfeiture—an in‐
advertent failure to raise an important issue—but rather an
intentional waiver that was part of a broad compromise of po‐
tentially disputed sentencing issues. We hope this opinion
might help illustrate the difference between waiver and for‐
feiture.
I. Factual and Procedural Background
A. Defendant’s Military Service
Defendant Young enlisted in the United States Army in
1977. During a training exercise the following year, he suf‐
fered a back injury when his jeep crashed into an unmarked
tank trap. Young later took part in a 1979 parachute training
exercise. Many years later, he claimed that he was trauma‐
tized when he witnessed a fellow soldier’s death in the jump.
By early 1981, Young had been honorably discharged from the
Army.
Over the following decade, Young worked in various po‐
sitions manufacturing yachts, packaging goods, and operat‐
ing a boiler. Starting in 1984, after he denied having any med‐
ical or mental health conditions, Young also enlisted in the
Wisconsin Army National Guard. He was discharged from
the National Guard under “general conditions” in 1989.
B. Disability Compensation
In 1990, Young filed his first claim with the VA for com‐
pensation for his back injuries from the jeep accident. Young
was awarded a 10% disability rating for his back pain, which
No. 17‐3494 3
resulted in small monthly payments. Another decade passed
before Young sought a new disability assessment from the
VA, claiming he was unable to bend over to put on socks or
tie shoes, could no longer canoe or hunt, and had to change
jobs due to his back pain. In May 2002 the VA increased
Young’s payments to reflect a 20% disability rating, with an
effective date of July 30, 2001.
Within a month, Young petitioned for another increase in
disability rating, claiming for the first time a mental health
disability: service‐related depression as a secondary condi‐
tion to back pain. The following month Young sought a fur‐
ther compensation increase due to “unemployability.” In No‐
vember 2002, Young filed his first claim asserting that he suf‐
fered from Post‐Traumatic Stress Disorder (PTSD), due pri‐
marily to having witnessed the fatal parachute accident and
his jeep accident. The VA concluded that Young should re‐
ceive a combined 40% disability rating for the back problems
and PTSD. Young appealed, and in November 2003, he pre‐
vailed. The VA increased his disability rating to 70% for his
PTSD and 60% for his back injuries. The VA also granted his
request for a finding that he was unemployable. He was as‐
signed a combined 100% compensation rate effective as of
June 2002.
Young did not stop there. In 2004 he sought additional VA
compensation, primarily in the form of a grant to adapt his
house to accommodate his allegedly increasing disability. The
VA denied his request, noting that he did not need assistive
devices such as a cane, braces, or a wheelchair. In his 2005 ap‐
peal of that denial, Young asserted that he in fact did need two
canes to assist with walking and that he was using a wheel‐
chair. This appeal was denied, so Young appealed again in
4 No. 17‐3494
2006, adding to his narrative the claim that he was confined to
a wheelchair and depended on his wife’s help for all daily ac‐
tivities, such as showering. The VA again increased Young’s
disability compensation, but remanded the grant request due
to inconsistencies between Young’s stated needs and the re‐
sults of the VA’s medical examinations. Young appeared in a
wheelchair for two later examinations. His adaptive housing
grant was awarded in 2008.
Young remained satisfied with his compensation level un‐
til 2013, when he requested another increase, as well as “Aid
and Attendance benefits” to pay for help with daily activities.
Young’s letter to the VA represented that he was 100% disa‐
bled and that his wife cared for all his daily needs. To support
that request, Young had a physical examination at the VA Mil‐
waukee office. He told the doctor that he could not walk be‐
yond a few steps. The examining doctor noted the discrep‐
ancy between Young’s claimed limitations and the more mod‐
est injuries observed in the medical examination. The doctor’s
suspicions were confirmed. After the appointment, he
watched Young walk across the parking lot with a normal
gait, fold up the wheelchair, and load it into his van. The doc‐
tor promptly reported his concerns to VA investigators.1
Investigators quickly obtained video recordings of Young
moving around his apartment building without a cane or
wheelchair. The apartment manager reported that he had not
seen Young use a cane or wheelchair, even during Young’s
regular walks with his dog. As the investigation progressed
1 Later that day, Young received one of his fraudulently inflated benefit
payments via wire transfer, which established the basis for the wire fraud
count of conviction.
No. 17‐3494 5
into 2014, the VA obtained more video recordings of Young
walking through stores and a casino, carrying bags of ice and
cases of beverages, and jointly unloading a large, wheeled
tool box from a pick‐up truck—all without a cane or wheel‐
chair.
As the VA gathered this evidence, Young sought even
more compensation based on his purported reliance on a
wheelchair and canes, including a housing grant to remodel
his kitchen to install a bathroom, a ramp, and wheelchair lift.
The VA denied the requested housing grant. In 2015, the VA
sent Young a “due process letter” notifying him of the inves‐
tigation and the agency’s intention to revoke his benefits. Af‐
ter receiving evidence and holding a hearing, the VA issued a
decision in February 2016 that Young’s past statements re‐
garding his PTSD and the severity of his back injury were
“considered to be fraudulent.” As a result, the VA revoked
Young’s unemployability rating, eliminated his compensation
payments for PTSD, and reduced his back injury compensa‐
tion payments to reflect a 20% disability level, effective July
31, 2001, the date from which the 60% evaluation had previ‐
ously been assigned.
C. The Criminal Case
On October 25, 2016, a federal grand jury indicted Young
on five counts of wire fraud alleging that his false claims of
PTSD and back injury exaggerations allowed him to obtain
improperly more than $400,000 in VA funds. This loss esti‐
mate was based on Young’s receipt of a total of $457,858.70 in
VA benefits between August 2001 and the VA’s February 2016
decision that reduced his disability rating from 100% to 20%
and terminated his unemployability rating and PTSD‐related
benefits. If Young had been compensated at the 20% disability
6 No. 17‐3494
level during that same time period, he would have received
only $40,506.41.
Young’s attorney promptly sought to obtain Young’s
Army medical and service records, moving to adjourn the
court conference and trial dates. At court status conferences
over the next several months, Young’s attorney explained that
he was reviewing medical records, meeting with the prosecu‐
tor, and considering the possibility of an agreed guilty plea.
In August 2017, Young agreed to plead guilty to one count of
wire fraud. As part of the plea agreement, he did not admit to
a loss amount of over $400,000. Instead, the plea agreement
stated: “Young agrees that as a result of this fraud scheme in‐
volving his back disability that he was overpaid $201,521.41.”
Young further agreed “that the restitution ordered will in‐
clude all overpayments made to the defendant by the VA dur‐
ing the entire time period set forth in the indictment,” and that
“[t]he parties agree that this amount is $201,521.41.” At the
change‐of‐plea hearing, the district judge confirmed the
$201,521.41 loss and restitution amount with Young and his
attorney.
The difference of approximately $200,000 between the
charged amount of loss and the amount to which Young ad‐
mitted in the plea agreement was the product of extensive ne‐
gotiations. Young himself was actively involved in those ne‐
gotiations. As described in Young’s later sentencing memo‐
randum, discovery had been a “laborious process” of
“[f]inding witnesses and obtaining old records,” as well as re‐
viewing “thousands of pages of medical records, rating deci‐
sions, appeals, supporting materials, and army records, all
covering a span of time going back to 1977.” In the change‐of‐
plea hearing, the judge sensed some hesitation from Young
No. 17‐3494 7
and asked him about it. Young’s attorney explained that “the
way the case began is significantly different in terms of finan‐
cial numbers than the way it is now,” and that he and Young
had a “long history [ ] going through all of the discovery ma‐
terials and, frankly, some contentious discussions … about
how we get to where we are and what the proof might be at a
trial, and what the likely result could be.”
After listening to his attorney’s explanation, Young asked
whether the judge would “review all of the information that
we submitted and the VA submitted and all of that stuff.” The
judge assured him that “there will be a very comprehensive
Presentence Report,” he would “read that, and then your at‐
torney and you will have the right to submit other relevant
evidence that you think bears on sentencing.”
The presentence report explained the compromise over
the loss and restitution calculation: the government agreed
not to include PTSD‐related payments in the loss or restitu‐
tion amounts, leaving Young responsible for the $201,521.41
in overpayments for his fraudulent exaggerations of his back
injury. In his sentencing memorandum, Young provided the
clearest explanation of how this key issue was resolved:
The parties discussed the case at length … and
went back and forth regarding the merits and
difficulties of a trial for both sides. The govern‐
ment’s evidence regarding the extent of the de‐
fendant’s back injury was strong, particularly
audio‐visual evidence of the defendant ambu‐
lating without a cane or wheelchair after saying
he needed either or both to do anything. On the
other hand, the defendant’s evidence about the
in‐service parachute accident‐related PTSD was
8 No. 17‐3494
also strong. The problem for both sides was
whether (and how) a jury could separate the ev‐
idence into two tracks when the fraud charges
(wire fraud) are all the same.
Rather than go through a long and complex trial
with its associated risks, the parties were able to
settle the case by separating the tracks of the
case (back injury and PTSD) from each other.
The defendant would plead to one count and
agree to restitution regarding improper benefits
based on any back injury rating over 20%. For
the government’s part, it would agree to not
pursue restitution for the portion of the defend‐
ant’s benefits attributable to PTSD. Upon con‐
sultation, the VA was able to separate the bene‐
fits attributable to each claim. Originally, the
loss amount for both tracks was set at
$417,352.29. With the PTSD benefits subtracted,
the remaining loss amount attributed to the
back injury portion of the case was $201,521.41.
The parties used this figure to calculate the
guideline range and the amount of restitution.
Young’s attorney reported at the sentencing hearing that
“we don’t have any objections to the report or the Guideline
calculations” because the assigned probation officer had
made Young’s requested “simple factual changes” and had
included “some additional records … [in] the final version of
the report.” After hearing those assurances, the district court
“adopt[ed] the factual statements in the Presentence Report
as [its] Findings of Fact and … adopt[ed] the Guideline calcu‐
lation.”
No. 17‐3494 9
Young’s attorney again referred to the compromise’s ra‐
tionale later in the sentencing hearing when he argued for a
sentence shorter than that recommended by the government.
His attorney said it was difficult to say where Young “specifi‐
cally crossed that line from a legitimate dispute about an en‐
titlement to an illegitimate one.” Thus, he argued, the court’s
sentence should reflect that “a good enough objective point to
tell where [Young’s actions] became fraudulent is where the
investigation started … in 2013,” when the VA doctor de‐
tected Young’s ongoing fraud. Young’s attorney noted that
the parties were “really not that far apart” on recommended
sentences because they had “spent a great deal of time look‐
ing at all of the records … and getting to a point where there
was a legitimate place to compromise to avoid a trial.” Thus
“the parties essentially agree[d] that a sentence should be im‐
posed … [but] just differ[ed] slightly on the length of that
[sentence].”
The judge was not persuaded by the argument for addi‐
tional leniency. He reasoned that a longer sentence was justi‐
fied by “the need for punishment and the need to deter oth‐
ers,” as Young had stolen a “significant amount of money”
involving “public funds intended for the injured veterans.”
Young had perpetrated a “massive and blatant fraud” by “ly‐
ing about [his] functional ability … for years.” The judge ob‐
served that “the thing about when somebody lies in such a
blatant matter as that [it] calls into question all of the other
statements he’s made right from the beginning,” especially
because Young had reported upon entering the National
Guard in 1984 “that he had no physical or mental problems.”
It is hard to disagree with any of those observations. The court
imposed a sentence of 21 months, in the middle of the guide‐
line range based on the agreed loss amount of $201,521.41.
10 No. 17‐3494
The court also ordered restitution in the agreed amount of
$201,521.41.
II. Analysis
On appeal, Young does not deny his fraud, but he disputes
the calculation of total loss for purposes of the Sentencing
Guidelines and restitution. Young argues now that the loss
and restitution calculation should be measured from the first
time he was awarded any compensation based upon fraudu‐
lent claims that he needed assistive devices. Young contends
this would result in a total loss and restitution amount of only
$126,630.41. The adjustment would also produce a two‐level
decrease in Young’s offense level for the guideline calculation
and potentially a lower sentence.
If Young had timely objected to this sentencing issue in the
district court, “we would review [the] sentencing court’s fac‐
tual findings … for clear error,” United States v. Newman, 148
F.3d 871, 876 (7th Cir. 1998) (citation omitted), and its “resti‐
tution calculation for abuse of discretion,” United States v.
Sunmola, 887 F.3d 830, 840‐41 (7th Cir. 2018) (citation omitted).
But Young did not object.
If Young’s failure to raise the issue had been inadvertent
and thus a forfeiture, we would review the issue for “plain
error.” See Rosales‐Mireles v. United States, 138 S. Ct. 1897, 1903
(2018); Molina‐Martinez v. United States, 136 S. Ct. 1338, 1346
(2016); United States v. Thomas, 897 F.3d 807, 817 (7th Cir.
2018). To take advantage of plain‐error review, Young would
need to meet four criteria: First, the error must not have been
intentionally relinquished or abandoned. Second, the error
would need to be “plain,” meaning clear or obvious rather
than subject to fair debate. Third, the error must have affected
No. 17‐3494 11
Young’s substantial rights, meaning there would be a reason‐
able probability that, but for the error, the outcome of the pro‐
ceeding would have been different. Fourth, the appellate
court’s failure to exercise its discretion to correct the forfeited
error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Rosales‐Mireles, 138 S. Ct.
at 1904–05, citing Molina‐Martinez, 136 S. Ct. at 1343, and
United States v. Olano, 507 U.S. 725 (1993).
Young’s effort to invoke plain‐error review fails at the first
step. An appellate court need not consider a claimed error if
the issue has been waived. “Waiver occurs when a criminal
defendant intentionally relinquishes a known right” and
should be contrasted with forfeiture, “when a defendant neg‐
ligently fails to assert a right in a timely fashion.” United States
v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007) (citations and quo‐
tation marks omitted). A waiver “extinguishes any error and
precludes appellate review.” Id.
Although “[t]he line between waiver and forfeiture is of‐
ten blurry,” United States v. Garcia, 580 F.3d 528, 541 (7th Cir.
2009), this case stands clearly in the realm of waiver. The
“touchstone of waiver is a knowing and intentional decision
not to assert a right,” with a focus on “whether a defendant
chose, as a matter of strategy, not to present an argument.” Id.
(citations and quotation marks omitted). If a defendant fails
to raise a specific objection at sentencing, “we will view it as
having been waived if the defendant had a strategic reason to
[forgo] the argument, that is, only if the defendant’s counsel
would not be deficient for failing to raise the objection.”
United States v. Allen, 529 F.3d 390, 395 (7th Cir. 2008).
As his lawyer emphasized repeatedly in the district court,
Young made a strategic decision to stipulate to fraudulent
12 No. 17‐3494
conduct involving his back injury calculated from the time
frame determined by the VA—with the loss and restitution
amounts that loss entailed. Defense counsel was far from “de‐
ficient for failing to raise [an] objection” to this compromise
in the district court. The compromise allowed Young to avoid
criminal liability for allegedly fraudulent claims of PTSD and
the greater intended loss amounts for which he could be held
legally responsible. Young’s choice was deliberate, as further
confirmed by his lawyer’s successful efforts to have the
presentence report revised to reflect some factual changes and
additional documentation, all without raising any objection to
Young’s admitted fraud and the agreed loss and restitution
amounts. See United States v. Fuentes, 858 F.3d 1119, 1121 (7th
Cir. 2017) (“objecting to certain parts of a PSR [presentence
report], but not the later‐challenged Guidelines range consti‐
tutes ‘the paragon of intentional relinquishment’”), quoting
Brodie, 507 F.3d at 531.
By “stipulating to the conduct in the plea agreement” and
embracing that stipulation in the presentence report, in his
sentencing memorandum, and at his sentencing hearing,
Young “has waived any claim that he did not engage in that
conduct.” United States v. Flores‐Sandoval, 94 F.3d 346, 349 (7th
Cir. 1996); see also Newman, 148 F.3d at 876, 878 (although de‐
fendant objected at sentencing to conduct described in the
presentence report and the resulting “amount‐of‐loss calcula‐
tion,” by “stipulating to the conduct listed in [his] plea agree‐
ment, [he] conclusively admitted those facts and waived any
subsequent challenge to them”).
Young’s twenty‐year effort to obtain compensation bene‐
fits based on injuries he suffered during his four years of ser‐
vice included, we must assume, both valid and fraudulent
No. 17‐3494 13
claims. As Young observes on appeal, it is “exceedingly diffi‐
cult … to determine when [he] began his fraudulent scheme
[in order] to accurately calculate the actual loss or intended
loss as a result of his fraud.” But the government and Young
agreed on a reasonable line between Young’s fabricated and
actual injuries. They did so after reviewing thousands of
pages and decades’ worth of medical records. Their agree‐
ment was set forth in Young’s plea agreement, the presen‐
tence report, Young’s sentencing memorandum, and the sen‐
tencing hearing. Young “knew he had a right to further judi‐
cial determinations” on the factual questions of his relevant
conduct and resulting loss and restitution amounts, but he
“intentionally chose to relinquish that right.” He “cannot now
resurrect the waived claim” and re‐litigate that question on
appeal. Newman, 148 F.3d at 879.
The judgment of the district court is
AFFIRMED.