In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2160
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T OMAS L EISKUNAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08-CR-807—Robert W. Gettleman, Judge.
A RGUED D ECEMBER 2, 2010—D ECIDED S EPTEMBER 6, 2011
Before E ASTERBROOK, Chief Judge, and M ANION and
W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Tomas Leiskunas, a participant
in a major mortgage fraud scheme, was charged
with committing wire fraud as part of that scam. His
role was to act as a “straw”, or fake, buyer of seven prop-
erties, and to cause $4,473,161.55 to be transferred
from unwitting mortgage companies to their banking
partners. Ultimately, as part of the scheme, he received
2 No. 10-2160
$90,000 from his co-schemers. He pled guilty, and was
sentenced to 37 months’ imprisonment, which was the
lowest end of the guideline range. He was also sen-
tenced to two years of supervised release, and ordered
to pay $1,792,000 in restitution.
Leiskunas appeals, arguing that his sentence should
have been lowered because of his substantial assistance
to the government, but we reject this argument because
the district court acted within its discretion in con-
sidering, and rejecting, Leiskunas’s assertion of sub-
stantial assistance. Leiskunas also argues that the court
erred when it applied a loss amount of $1,792,000 to him
without explanation. We agree that the court should
have explained its rationale in attributing a loss amount
to Leiskunas. Finally, Leiskunas argues that his sentence
should have been modified to reflect the guidelines’
minor role adjustment. We conclude that the court erred
in interpreting the minor role adjustment guideline
when it stated that an act otherwise deemed minor
could, if repeated, necessarily preclude the adjustment,
and that a person playing a necessary role cannot play
a minor role. We remand to give the court an oppor-
tunity to explain the reasonably foreseeable financial
loss amount that should be attributed to Leiskunas as
a result of his crime, and to consider Leiskunas’s minor
role argument as discussed in this opinion.
I. BACKGROUND
In 2006, at 26 years old, Tomas Leiskunas had a minor
criminal history and at least two aliases. He was
No. 10-2160 3
charged in a one-count indictment with being a willing
participant in a mortgage fraud scheme. The indictment
alleged that beginning no later than September 2006 and
continuing until approximately November 2006, Leiskunas
and others knowingly participated in a scheme to
defraud and to obtain money and property by means
of materially false and fraudulent pretenses, representa-
tions, promises, and material omissions. The indictment
also charged that on or around November 2, 2006, for
the purpose of executing the scheme, Leiskunas
knowingly caused to be transmitted by means of wire
communication in interstate commerce a funds transfer
in the amount of $468,971.86 from Wachovia Bank in
Philadelphia, Pennsylvania, to First American Trust
Company in Santa Ana, California, in violation of 18
U.S.C. § 1343.
Leiskunas pled not guilty to the charge in the indict-
ment. Later, he withdrew his plea of not guilty and
entered a plea of guilty. Rather than enter into a plea
agreement with the government, Leiskunas filed a
written plea declaration in which he admitted that he
agreed to act as a straw buyer of seven properties. He
also stated that another individual in the scheme told
him that he would receive some form of payment for
his willingness to be a straw buyer when the properties
were eventually resold. He admitted that he was present
at mortgage transaction closings in his role as the
straw buyer, and that he “understood that he did not
have to live in any of the properties for which he was
signing mortgage applications.” During these closings,
Leiskunas provided his identification, reviewed the
4 No. 10-2160
final loan paperwork, and approved documents that
contained false financial and employment information.
He also acted as though he was a legitimate buyer, when
he knew he was not. Leiskunas never intended to
assume any mortgage liability for the properties, even
though the properties were being purchased based on
mortgages acquired in his name.
A Pre-Sentence Report (PSR) was prepared in advance
of Leiskunas’s sentencing hearing. The PSR noted that
a total of $4,473,161.55 was transferred from the
mortgage loan companies to the banks due to Leiskunas’s
fraudulent purchase of seven properties. The PSR also
explained that as a result of Leiskunas’s participation
in the scheme, a co-schemer deposited $90,000 into
Leiskunas’s bank account, $30,000 of which Leiskunas
transferred to two other accounts. The PSR also con-
cluded that his base offense level was seven, and
contained a recommendation that he receive a 16-point
enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(I), for
causing a loss greater than $1,000,000 but less than
$2,500,000, because of a reasonably foreseeable loss of at
least $1,792,000. The loss amount was calculated by the
probation officer based on the government’s estimate
of loss and the probation officer’s interview of the case
agent. The $1,792,000 figure was determined by cal-
culating the difference between the $4,473,161.55 loan
amount and the amount recouped when each property
was eventually resold, after Leiskunas defaulted on the
No. 10-2160 5
loans.1 Leiskunas was credited with a three-level adjust-
ment under U.S.S.G. § 3E1.1(a) and (b) for acceptance
of responsibility. With a Category II criminal history, and
a total offense level of 20, Leiskunas’s advisory guide-
lines range was 37-46 months’ imprisonment.
During Leiskunas’s sentencing hearing, the govern-
ment’s proposed loss calculation method mirrored that
of the PSR. The government argued that the applicable
loss amount for Leiskunas’s crime “is not the full amount
of the loans that Mr. Leiskunas got, but rather . . . the
difference between the amount of the loan that he got
and the eventual price for which the house was resold. . . .
We’re not holding him accountable for the full price of
the fraud. It’s just the loss.”
Also, the government stated that a sentence adjust-
ment for acceptance of responsibility was appropriate
because “[w]hen Mr. Leiskunas was arrested, he was
fully cooperative. He gave a full confession. . . . Subsequent
to that, he’s met with agents and the U.S. Attorney’s
office every time he’s been asked to meet. He has agreed
to testify when he’s been asked to testify. And he has
been willing to offer information.” However, the gov-
ernment did not make a motion under U.S.S.G. § 5K1.1,
which allows the court to depart from the guidelines
based on the government’s representation that the de-
1
Using this method, and using the mortgage resale figures
provided in the government’s sentencing memorandum, the
loss amount should have been calculated as $1,790,500, not
$1,792,000.
6 No. 10-2160
fendant gave substantial assistance to governmental
authorities.
Regarding Leiskunas’s role in the scheme, the gov-
ernment argued that a minor role adjustment was
not appropriate in Leiskunas’s case because he “was
central . . . [t]he deals would not have gone through
without the straw buyer there. . . . And he took several
steps as well for each of the seven properties. . . . This
is someone who is at the heart of the fraud. . . . [H]e
should be held accountable for his own conduct.” In
response, Leiskunas argued that he deserved a minor
role adjustment as well as a further reduced sentence
due to his substantial assistance to the government. As
to the minor role adjustment, Leiskunas’s attorney
argued that he acted only at the direction of others, had
no idea how large the scheme was or the number or
identities of the co-schemers, exercised no power over
the scheme, and that he was a replaceable cog within
the scheme. With respect to the substantial assistance
adjustment, his attorney noted that “he has done every-
thing that was asked of him. He has gone in, he’s identi-
fied individuals. He’s pointed out pictures. He’s ex-
plained his story. He’s testified in the grand jury. . . . [H]e
provided substantial assistance [to the government]
that allowed them to continue in their investigation.”
Leiskunas also contended that the loss amount at-
tributed to him by the government was wrong. His at-
torney argued that Leiskunas believed that the houses
that he fraudulently purchased would be resold at a
profit, and that “he had no reasonable foreseeability
when it came to knowing that [foreclosure] was going
to happen to the banks.”
No. 10-2160 7
But the court declined to apply the minor role enhance-
ment in sentencing Leiskunas and stated:
I can’t say that you had a minor role here, because
you were in a sense necessary for this to happen.
You need the straw buyer or [the scheme] isn’t
going to happen at all. If this were just one transac-
tion or maybe two, I could say it’s a much closer
case. Seven, I can’t say it’s a closer case. . . . You
were an integral part of this. What makes you a
minor participant is if you just had a transitory
brush with the activity, or it was an opportunistic
moment that somebody took advantage of in
just making one or two bad decisions. . . . I just
cannot conclude in good faith that you are a
minor participant.
The court also declined to apply the substantial assis-
tance adjustment, stating:
In a way, I can’t get involved in [the cooperation
issue], because my experience with the government
is that if they had a . . . reason to ask for a depar-
ture, they would do that. . . . I’m not going to
insinuate myself . . . into that. . . . I understand that
that’s a 3553 factor, I’m just not in a position to
quantify that at this point from what I’ve heard. . . .
I think the sentence is reasonable. . . . [Those are]
prosecutorial decision[s] that I’m not going to
make for them.
But the judge also acknowledged that he had the discre-
tion to consider Leiskunas’s cooperation in determining
his sentence, and that, if he so chose, “I [could] give him
8 No. 10-2160
time served. . . . I’m just not exercising my discretion
to give [Leiskunas] that break. . . . I just don’t feel strongly
enough about [the cooperation] argument to exercise
my discretion in your favor on it. . . . It’s not that
I haven’t considered it. I have considered it.”
The court did not address the government’s position
that Leiskunas was responsible for a loss amount of
$1,792,000, or Leiskunas’s position that the loss amount
was not reasonably foreseeable to him.2
Adopting the recommendation of the PSR, the court
concluded that Leiskunas’s applicable guidelines range
was 37-46 months’ imprisonment, and sentenced
Leiskunas to 37 months’ imprisonment, two years of
supervised release, and $1,792,000 in restitution.
Leiskunas timely appealed, asserting that the court erred
by refusing to grant his substantial assistance request;
in adopting his loss calculation amount; and in inter-
preting the minor role adjustment.
II. ANALYSIS
A. No Abuse of Discretion in Rejecting Substantial
Assistance Argument
Leiskunas contends that the court imposed an unrea-
sonable sentence when it refused to reduce his sentence
2
The government also argued that a sophisticated means
enhancement was necessary in calculating Leiskunas’s sen-
tence. Leiskunas argued that the enhancement was inappropri-
ate and the court did not apply the enhancement.
No. 10-2160 9
based on his cooperation pursuant to 18 U.S.C. § 3553.
We review the substantive reasonableness of a sentence
for an abuse of discretion. United States v. Coopman, 602
F.3d 814, 819 (7th Cir. 2010). This standard requires that
we defer to the sentencing judge, who considers each
defendant as an individual, and decides sentences on a
case-by-case, rather than wholesale, basis. Gall v. United
States, 552 U.S. 38, 51-52 (2007); United States v. Omole,
523 F.3d 691, 698 (7th Cir. 2008). The district court has
substantial discretion in choosing a reasonable sentence.
United States v. Arceo, 535 F.3d 679, 688 (7th Cir. 2008). A
within-guidelines sentence is presumed reasonable on
appeal, United States v. Doe, 613 F.3d 681, 690 (7th Cir.
2010), and a lowest possible within-guidelines sentence
will almost never be unreasonable. United States v.
Vallar, 635 F.3d 271, 279 (7th Cir. 2011). We find that the
court did not abuse its discretion in declining to lower
Leiskunas’s sentence below his guidelines range based
on his assertion of cooperation.
During Leiskunas’s sentencing, the court noted that
the government could move for a reduced sentence
under U.S.S.G § 5K1.1 or Federal Rule of Criminal Proce-
dure 35. It stated that those were “prosecutorial deci-
sion[s] that I’m not going to make for them.” Although
the government requested a sentencing adjustment for
acceptance of responsibility for Leiskunas, it did not
say that he gave substantial assistance. And the court
declined to sentence Leiskunas below his guidelines
range and instead sentenced him to 37 months’ impris-
onment, which was at the lowest end of his advisory
guidelines range. On appeal Leiskunas asserts that the
10 No. 10-2160
court gave too much weight to the government’s
decision not to move for substantial assistance, and that
the court felt that it did not have the authority to inde-
pendently lower his sentence.
A district court may consider a defendant’s coopera-
tion with the government as a basis for a reduced sen-
tence, even if the government has not made a § 5K1.1 or
Rule 35 motion. See United States v. Knox, 573 F.3d 441,
453 (7th Cir. 2009); United States v. Richardson, 558 F.3d
680, 681-82 (7th Cir. 2009). It would be reversible error
if the court had said that it could not independently
consider Leiskunas’s cooperation in fashioning his sen-
tence because the government did not make a § 5K1.1
motion. See United States v. Schmitt, 495 F.3d 860, 865
(7th Cir. 2007) (reversing where “the tenor of [the
judge’s] remarks indicated that he felt that there was an
outside constraint on his discretion that he was not free
to set aside.”). Here, however, the court repeatedly said
that it knew that it had the discretion under 18 U.S.C.
§ 3553 to lower Leiskunas’s sentence because of his
cooperation, but that “I’m just not exercising my discre-
tion to give you that break. . . . I just don’t feel
strongly enough about [the cooperation] argument to
exercise my discretion in your favor on it.” Here, the
court did not abuse its discretion in sentencing
Leiskunas to the lowest end of his advisory guide-
lines range following its consideration, and rejection, of
Leiskunas’s cooperation argument.
No. 10-2160 11
B. Explanation of Reasonably Foreseeable Loss
Necessary
Leiskunas argues that the court erred in attributing
$1,792,000 to him in reasonably foreseeable loss without
explaining its conclusion that he was actually responsible
for $1,792,000. The definition of loss is a question of
law that we review de novo, and the amount of loss
calculated by the district court is a finding of fact that
we review for clear error. United States v. Vivit, 214 F.3d
908, 914 (7th Cir. 2000).3 We review de novo whether
the court followed proper procedures at sentencing.
United States v. Abebe, No. 10-3966, 2011 WL 2557631, at *1
(7th Cir. June 29, 2011). We find that the court should
have explained its rationale in attributing the loss
amount it did to Leiskunas.
3
The government argues on appeal that Leiskunas waived or
forfeited his argument that the district court erred in attributing
$1,792,000 to him in reasonably foreseeable loss because he
failed to raise that argument during sentencing. However,
Leiskunas argued that the loss figure of $1,792,000 was not
reasonably foreseeable to him in his Sentencing Memorandum
and Objections to the PSR, and raised the argument again at
his sentencing hearing when his attorney said, “[Leiskunas] had
no reasonable foreseeability when it came to knowing that
[foreclosure] was going to happen to the banks.” Raising this
issue again after the court adopted the presentence report
was not necessary to preserve the argument for appeal. United
States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (“[T]he rules
do not require a litigant to complain about a judicial choice
after it has been made.”).
12 No. 10-2160
The court adopted the presentence report, but it did not
address Leiskunas’s position regarding the amount of
loss that was reasonably foreseeable to him. Leiskunas
argued in his sentencing memorandum and again at
his sentencing hearing that $1,792,000 could not be attrib-
uted to him in reasonably foreseeable loss because he
had no idea that the properties were going to go into
foreclosure. “A sentencing court commits procedural
error by not adequately explaining its choice of sentence.”
United States v. Garcia-Oliveros, 639 F.3d 380, 381 (7th Cir.
2011) (per curiam). And some “statement of the district
court’s reasoning is necessary for this court to be able to
meaningfully review its decision.” United States v. Marion,
590 F.3d 475, 477 (7th Cir. 2009) (remand of district
court’s denial of a sentence reduction under 18 U.S.C.
§ 3582(c)(2)). Here, the lack of explanation by the
district court in attributing $1,792,000 to Leiskunas in
reasonably foreseeable loss means we cannot meaning-
fully review the court’s decision. And, because of the
court’s silence, we cannot be sure of the effect that
Leiskunas’s argument had, or could have had, on the
court’s sentencing decision. United States v. Villegas-
Miranda, 579 F.3d 798, 802 (7th Cir. 2009) (citing United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). See
also United States v. Johnson, 643 F.3d 545, 549 (7th Cir.
2011) (“A sentencing court need not respond expressly
to every argument a defendant makes, but it must
address all of a defendant’s principal arguments that
are not so weak as to not merit discussion.”) (citations
and internal quotations omitted). These procedural stan-
dards operate as safeguards against unintentional in-
fringements on defendants’ rights.
No. 10-2160 13
We remand to give the court an opportunity to explain
its rationale in attributing a loss amount to Leiskunas.
We express no opinion as to the propriety of arriving at
the same figure of reasonably foreseeable loss on
remand, but such a determination should be explained
by the district court. On remand, the district court
should also address Leiskunas’s restitution order and
the $1,500 arithmetical error that both parties concede
is currently present.
C. Minor Role Adjustment Misinterpreted
Leiskunas also disagrees with the district court’s rejec-
tion of his request for a minor role adjustment pursuant
to U.S.S.G. § 3B1.2. We find that the court erred in inter-
preting the adjustment, but will not decide whether
Leiskunas was prejudiced by the misinterpretations
since the lack of explanation of reasonably foreseeable
loss already necessitates remand. However, on remand,
the court should consider Leiskunas’s minor role argu-
ments, and the government’s counter-arguments, with-
out relying on its previous faulty interpretations.
We review the district court’s interpretation and ap-
plication of the federal sentencing guidelines de novo,
United States v. Abbas, 560 F.3d 660, 662 (7th Cir. 2009), and
review the decision to deny a defendant a minor role
reduction for clear error. United States v. Panaigua-Verdugo,
537 F.3d 722, 724 (7th Cir. 2008). We will find clear error
only when our review of the evidence leaves us “with a
definite and firm conviction that a mistake has been
committed,” and we will rarely reverse, because the
14 No. 10-2160
sentencing court is in the best position to evaluate the
defendant’s role in the criminal activity. United States v.
Haynes, 582 F.3d 686, 709 (7th Cir. 2009); United States
v. Rodriguez-Cardenas, 362 F.3d 958, 959 (7th Cir. 2004).
U.S.S.G. § 3B1.2 calls for a two-, three-, or four-level
reduction in the offense level if a defendant played a
minor or minimal role in a criminal activity. A minor
role adjustment is appropriate if the defendant is “sub-
stantially less culpable” than the average participant,
but whose role could not be described as minimal.
Haynes, 582 F.3d at 709; see also U.S.S.G. § 3B1.2, cmt.
n. 3(A) & n. 5. The fact that others were more involved
in a crime does not necessarily entitle a defendant to a
minor role reduction. United States v. Gallardo, 497 F.3d
727, 741 (7th Cir. 2007).
Leiskunas argues that the court erred in interpreting
and applying U.S.S.G. § 3B1.2, which we review
de novo. During sentencing, in its evaluation of whether
a minor role adjustment was appropriate, the court said:
I can’t say that you had a minor role here, because
you were in a sense necessary for this to hap-
pen. . . . If this were just one transaction or maybe
two, I could say it’s a much closer case. Seven,
I can’t say it’s a closer case. . . . What makes you a
minor participant is if you just had a transitory
brush with the activity, or it was an opportunistic
moment that somebody took advantage of in
just making one or two bad decisions.
The court misinterpreted the minor role reduction
application in two ways. First, playing a necessary role
No. 10-2160 15
does not definitively prevent that same role from being
minor. This principle is readily seen in the wealth of
cases where drug couriers receive the benefit of the ad-
justment, even though their role is necessary to the drug
distribution. Second, a criminal participant that commits
a minor act is not necessarily precluded from minor
role consideration simply because the minor act is re-
peated. It is true that a court can consider whether a
defendant has repeatedly committed an act in making its
sentencing determination. See United States v. Saenz, 623
F.3d 461, 468 (7th Cir. 2010) (remanding for minor role
sentence reconsideration where record indicated that
drug courier committed offense on single occasion). But
a defendant’s repeated, negligible participation in a
fraudulent scheme does not, by itself, doom qualification
for a minor role adjustment. Id. (a “drug courier should
neither automatically receive nor automatically be pre-
cluded from receiving a role reduction.”).
Rather than relying on a determination of whether
Leiskunas’s act was necessary or repeated, the court
should have evaluated Leiskunas’s role in context of
the other participants in the scheme, keeping in mind
that a minor player is substantially less culpable than
the average participant, not the leaders. United States v.
Sorich, 523 F.3d 702, 717 (7th Cir. 2008). At this point,
we would ordinarily decide whether the interpretation
errors required resentencing, or if the doctrine of harm-
less error applies. United States v. Olson, 450 F.3d 655,
683 (7th Cir. 2006). We need not make such a determina-
tion here, though, because we are remanding based on
the issue of reasonably foreseeable loss. On remand, the
16 No. 10-2160
court should consider Leiskunas’s minor role argu-
ments, and the government’s counter-arguments, without
relying on its past misinterpretations.
III. CONCLUSION
The decisions of the district court are A FFIRMED in part
and R EVERSED in part, and the case is R EMANDED for
further proceedings consistent with this opinion.
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