United States Court of Appeals
For the Eighth Circuit
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No. 12-1004
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ralph Egmund Harald Frisch
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 15, 2012
Filed: January 28, 2013
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Before LOKEN, SMITH, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Ralph Egmund Harald Frisch pleaded guilty to one count of concealment from
the Social Security Administration (SSA), in violation of 42 U.S.C. § 408(a)(4). The
district court1 sentenced Frisch below the advisory Guidelines range. Frisch appeals
his sentence as procedurally and substantively unreasonable. We affirm.
I. Background
In 2002, Frisch filed a claim seeking disability benefits with the SSA. The SSA
ultimately found Frisch to be disabled and began paying disability benefits to him.
Frisch also made a workers' compensation claim against Jennie-O Turkey, his former
employer. In 2004, Jennie-O Turkey hired a private company to investigate and
conduct surveillance of Frisch. Over the course of several days, investigators
observed and videotaped Frisch performing roofing work, climbing up and down a
ladder, and working with an electric saw. In 2008, the SSA Office of the Inspector
General learned of the video surveillance and began investigating Frisch. An SSA
investigator interviewed Frisch, and he admitted to working at jobs requiring manual
labor, including snow shoveling, painting, and roofing. Thereafter, the SSA
terminated Frisch's disability benefits. Frisch was 63 years old. In total, Frisch
received $86,160 in Social Security disability benefits to which he was not entitled.
In 2011, the government indicted Frisch for his conduct. Frisch pleaded guilty to one
count of concealment from the SSA, in violation of 42 U.S.C. § 408(a)(4).
Because the statutory maximum penalty for a violation of § 408(a)(4) is five
years' imprisonment, the presentence investigation report (PSR) calculated Frisch's
base offense level as 6. See U.S.S.G. § 2B1.1(a)(2). The PSR determined that Frisch
was "responsible for a loss amount of $86,160." Applying Application Note 3(A) of
§ 2B1.1, the PSR noted that "a loss is the greater amount of the actual or intended
loss." The PSR concluded that if Frisch had not been caught, he "would have
continued to receive benefits [to which] he was not legally entitled until the
retirement age of 66." Thus, Frisch would have received $38,610 in addition to the
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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$86,160 already received, for a total intended amount of $124,770. Because this
amount exceeded $120,000, it triggered a ten-level increase in the offense level above
the base offense level of 6. See U.S.S.G. § 2B1.1(b)(1)(F). The PSR then subtracted
three levels for Frisch's acceptance of responsibility, see U.S.S.G. § 3E1.1, resulting
in a total offense level of 13. A total offense level of 13, combined with a criminal
history category of VI, produced an advisory Guidelines range of 33 to 41 months'
imprisonment.
As to the amount of loss, the government noted the absence of any indication
that Frisch would have voluntarily disclaimed the disability benefits if his fraud had
gone undetected and asked the court to find that the loss amount is the intended loss.
The government requested a mid-range sentence of 36 months' imprisonment. Frisch
objected to the intended loss calculation and requested that the court sentence him to
27 months' imprisonment to run concurrent to his 78-month state sentence for selling
methamphetamine.
At sentencing, the district court found a factual basis to support using the
intended-loss calculation. Consistent with the PSR, it calculated a Guidelines range
of 33 to 41 months' imprisonment. The district court also noted that if it had found the
loss amount was limited to the actual loss, then the Guidelines range would be 30 to
37 months' imprisonment. It explained that "[i]rrespective of where I begin, . . . I
believe I am going to end up with the same sentence before we are done this
afternoon."
In sentencing Frisch, the district court noted that Frisch was of a relatively
advanced age, had health problems, and had previously served prison time. The court
also considered the need to promote respect for the law, the need to deter Frisch from
committing future crimes, and the need to deter others from committing similar
crimes. And, the court considered that Frisch "ha[s] been in custody doing two-thirds
of the 78-month sentence." The court concluded that "anything less than a 25-month
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consecutive sentence w[ould] not promote respect for the law and would not be just
punishment and would not be consistent with similarly-situated individuals." In
sentencing Frisch to 25 months' imprisonment to run consecutive to his state
sentence, the court stated that it had "taken into account . . . [Frisch's] age, [his]
health, and the fact that [he] had been in prison for a time."
Frisch appeals his sentence, asserting procedural error and substantive
unreasonableness.
II. Discussion
In reviewing Frisch's sentence, first we "ensure that the district court
committed no significant procedural error." Gall v. United States, 552 U.S. 38, 51
(2007). If there is no procedural error, "then [we] consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard." Id.
"In determining whether a procedural error has been committed, we review the
district court's factual findings for clear error, and its interpretation and application
of the [G]uidelines, de novo." United States v. Robinson, 639 F.3d 489, 495 (8th Cir.
2011) (quotations and citations omitted).
A. Procedure
Frisch claims that he relinquished the intent to defraud the SSA in 2008 when
an SSA investigator interviewed him. He claims that he demonstrated his
relinquishment of intent to defraud by admitting to both lying and receiving benefits
to which he was not entitled. Therefore, Frisch argues, the district court procedurally
erred in accepting the government's intended loss calculation, which included sums
accruing after he relinquished his intent.
"A district court's determination of loss need not be precise, although it must
reflect a reasonable estimate of the loss." United States v. Jenkins, 578 F.3d 745, 749
(8th Cir. 2009) (quotation and citation omitted). "The sentencing judge is in a unique
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position to assess the evidence and estimate the loss based upon that evidence. For
this reason, the court's loss determination is entitled to appropriate deference."
U.S.S.G. § 2B1.1 n.3(C) (citing18 U.S.C. § 3742(e) and (f)). The Guidelines define
"intended loss" as "the pecuniary harm that was intended to result from the offense."
U.S.S.G. § 2B1.1 n.3(A)(ii).
Here, the district court accepted the government's reasoning that Frisch would
have continued receiving benefits to which he was not legally entitled until the
retirement age of 66 if he had not been caught. When calculating intended loss, the
appropriate inquiry is what the loss would have been if the defendant had not been
caught. See United States v. Henderson, 416 F.3d 686, 695 (8th Cir. 2005). ("Because
the jury found that [the defendant] intended to continue receiving SSDI, when it
actually ended is irrelevant to calculating the intended loss."); United States v.
Rettenberger, 344 F.3d 702, 708 (7th Cir. 2003) ("[The defendant] set out to take the
insurers for all they were worth, and that meant benefits through age 65. What would
have induced him to disclaim benefits earlier?"). Frisch's intent to stop defrauding the
SSA after its investigators confronted him about it does not impact the intended loss
calculation because the intent to cease did not arise until the authorities interdicted
the offense. Nothing beyond Frisch's statements indicate that he would have ceased
accepting payments before his meeting with SSA officials, and the district court could
reasonably conclude that he intended to continue doing so. Thus, the district court did
not procedurally err in accepting the government's intended loss calculation.
B. Substantive Reasonableness
Frisch argues that his sentence is substantively unreasonable because it is
greater than necessary to accomplish the goals of sentencing and it fails to give proper
weight to his admission of wrongdoing and his attempt at making restitution. Frisch
claims that he had repaid almost $8,000 at the time of his sentencing hearing.
Furthermore, he argues that he does not need to be deterred from committing future
crimes because his health problems will prevent him from being a danger to the
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public, and, in any case, he will be legitimately collecting social security retirement
benefits by the time he is released from prison.
"[W]here a district court has sentenced a defendant below the advisory
[G]uidelines range, 'it is nearly inconceivable that the court abused its discretion in
not varying downward still further.'" United States v. Moore, 581 F.3d 681, 684 (8th
Cir. 2009) (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)).
Here, the record clearly shows that the district court considered the mitigating factors
Frisch cited. The court explicitly noted Frisch's age, his health problems, and his
restitution payments. The court sentenced Frisch to 25 months' imprisonment to run
consecutive to his state sentence. This sentence was well below the advisory
Guidelines range of 33 to 41 months. This was not an abuse of discretion.
III. Conclusion
Because we conclude that the district court did not procedurally err or abuse
its discretion in sentencing Frisch to 25 months' imprisonment, we affirm.
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