NONPRECEDENTIAL DISPOSITION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 December 7, 2018
Decided December 12, 2018
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17‐2409
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 14 CR 00708‐1
KIT C. KLEHM,
Defendant‐Appellant. Edmond E. Chang,
Judge.
O R D E R
Kit Klehm pleaded guilty to wire fraud, see 18 U.S.C. § 1343, and was sentenced
to 57 months’ imprisonment and 3 years’ supervised release. He filed a notice of appeal,
but his appointed attorney contends that the appeal is frivolous and has moved to
withdraw under Anders v. California, 368 U.S. 738 (1967). Klehm opposes counsel’s
motion. See Cir. R. 51(b). Counsel’s brief outlines the nature of the case and addresses
the potential issues that one might expect an appeal like this to involve. Because
No. 17‐2409 Page 2
counsel’s brief appears thorough, we limit our review to the topics she discusses, along
with the issues Klehm raises in response. See United States v. Bey, 748 F.3d 774, 776
(7th Cir. 2014).
Counsel reports that Klehm does not wish to withdraw his guilty plea. Therefore,
she appropriately does not consider challenging the voluntariness of the plea or the
adequacy of the plea colloquy. See FED. R. CRIM. P. 11; United States v. Knox, 287 F.3d 667,
670–71 (7th Cir. 2002).
Counsel begins by assessing, and correctly dismissing as frivolous, whether
Klehm could challenge his sentence. First, counsel examines the criminal statute. Under
18 U.S.C. § 1343, imprisonment of up to 20 years, and supervised release of up to 3
years is authorized. Klehm’s 57‐month prison term and 3‐year period of supervised
release fall at or within the statutory limits for his crime. Therefore, no statutory
argument is feasible.
Counsel next examines the calculation of the Sentencing Guidelines range and
concludes that the district court correctly calculated the range of 57 to 71 months, based
on Klehm’s total offense level of 25 and criminal history category of I. She considers
three possible attacks. First, she asks whether the district court erred in imposing a
2‐level upward adjustment for using “sophisticated means” during the commission of
the crime, see U.S.S.G. § 2B1.1(b)(10), but we agree with counsel that this argument
would be pointless. The enhancement is appropriate “when the conduct shows a
greater level of planning or concealment than the typical fraud of its kind.” United States
v. DeMarco, 784 F.3d 388, 397 (7th Cir. 2015) (citing United States v. Knox, 624 F.3d 865,
871 (7th Cir. 2010)). Examples include the use of fictitious entities or offshore financial
accounts. § 2B1.1, app. n. 9(B). Klehm falsified many documents, used fake names and
email addresses, and directed the victim to wire money to fictitious corporate accounts
overseas. That is exactly the type of conduct that warrants an enhancement.
See United States v. Sheneman, 682 F.3d 623, 632 (7th Cir. 2012) (applying enhancement
when defendants falsified loan documents); United States v. Allan, 513 F.3d 712, 716
(7th Cir. 2008) (applying enhancement for using phony emails and fabricated
documents).
Second, counsel properly decides against arguing that the district court erred by
applying a 2‐level upward adjustment for obstructing justice. See U.S.S.G. § 3C1.1. The
enhancement applies when the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice with respect to the
No. 17‐2409 Page 3
investigation, prosecution, or sentencing of the instant offense” or a “closely related
offense.” Id. The district court found that Klehm committed more fraud while on bond
and submitted a “false and misleading” affidavit to persuade the court of the
transaction’s legitimacy. The district court did not expressly state that the new conduct
was a “closely related offense,” but both the new and original offenses have striking
similarities: In his new scheme, Klehm falsely claimed that he had contacts with
overseas manufacturers. He then fabricated fraudulent agreements with the
manufacturers to induce the victim to wire funds to cover the manufacturing costs.
Klehm and his associates later used those funds for personal expenses. Based on the
record, we agree with counsel that the proposed argument would be pointless.
Third and relatedly, counsel discusses whether the district court erred in denying
the downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 but
correctly concludes that such a challenge would be hopeless. In considering the facts
underlying the obstruction‐of‐justice enhancement, the district court found that those
same facts weighed against finding that Klehm had accepted responsibility.
See United States v. Warren, 454 F.3d 752, 763 (7th Cir. 2006). Only in extraordinary cases
does a defendant with an obstruction enhancement receive a downward adjustment for
acceptance of responsibility. United States v. Davis, 442 F.3d 1003, 1009–10 (7th Cir.
2006). Klehm believes that his guilty plea, entered before he committed the additional
fraud, is an extraordinary circumstance. But the timing of a guilty plea alone does not
make a case extraordinary. United States v. Bennett, 708 F.3d 879, 893 (7th Cir. 2013).
Klehm further argues that, based on his “substantial assistance” to the government’s
investigations of other, unrelated cases, he accepted responsibility. But judges have
“broad discretion” in weighing the statutory sentencing factors in 18 U.S.C. § 3553(a) as
well as the criteria in U.S.S.G. § 3E1.1(b) to assess whether the defendant accepted
responsibility. See United States v. Deberry, 576 F.3d 708, 711 (7th Cir. 2009). We see no
reason to question the judge’s discretion here. He recognized that Klehm pleaded guilty
and cooperated with the government in unrelated cases but weighed those facts against
the government’s evidence that Klehm committed an additional crime while on bond.
With the Guidelines calculation to the side, counsel observes that Klehm also
could challenge the substantive reasonableness of his sentence but correctly adds that
this argument too would be futile. Because the sentence is within the Guidelines range,
we may presume that it is reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007),
and do, see United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2015). And we see
nothing in this record to rebut that presumption. While weighing the relevant factors
under 18 U.S.C. § 3553(a), the district judge noted that Klehm told “many, many lies”
No. 17‐2409 Page 4
over a “substantial period of time” and caused tremendous damage to his victim, a
small business owner. The judge further considered Klehm’s mitigating
circumstances—his mental health and substance abuse. The district court thus
adequately reviewed and weighed all of the relevant information.
Counsel also rightly declines to challenge the term of supervised release as
inadequately explained. This argument would be pointless because a district court has
discretion to order an appropriate term of release without providing an explanation for
it separate from the explanation given for the term of imprisonment. See United States
v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016). The judge here provided sufficient reasons for
the prison term, and those reasons also justify the supervised‐release term.
Finally, counsel considers whether the court abused its discretion by ordering
that Klehm pay interest on the restitution. An argument on these grounds would be
frivolous, however, because interest is mandatory for restitution that exceeds $2,500 if
not repaid within 15 days of the judgment. 18 U.S.C. § 3612(f)(1); see United States
v. Goode, 342 F.3d 741, 744 (7th Cir. 2003). And Klehm was ordered to pay $568,144.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.