In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3281

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGORY WOLFE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:10-cr-00207-RL-PRC-2—Rudy Lozano, Judge.

ARGUED SEPTEMBER 19, 2012—DECIDED DECEMBER 5, 2012

Before BAUER, KANNE, and WOOD, Circuit Judges.

BAUER, Circuit Judge. Gregory Wolfe was convicted on

one count of bank theft and one count of interstate transportation of stolen goods under 18 U.S.C. §§ 2113(b) and

2314 for his role in a copper theft scheme. The district

court sentenced Wolfe to eighty-eight months’ imprisonment on each count, to be served concurrently,

followed by concurrent three-year terms of supervised

release. The district judge also ordered restitution in the
2 No. 11-3281

amount of $3,028,011.29. Wolfe appeals, contending that

he was deprived of a fair trial because of statements the

prosecutor made during closing argument. Wolfe also

challenges the sentence he received and the restitution

order imposed. Finding that Wolfe’s contentions lack

merit, we affirm.

I. BACKGROUND

Wolfe began working at Katoen Natie (“KTN”) in

May 2008. KTN is an international company involved in

the packaging and storing of plastics and various commodities, including aluminum and copper. It has U.S.

warehouses in Gary, Indiana; Texas; New Jersey; Louisiana; and California. Wolfe worked at the Gary warehouse where his stepfather, Gregory Harris, was the

operations manager. Wolfe was hired in 2008 as a

forklift operator but was later given more of a supervisory role.

In late 2008 to early 2009, KTN began storing

copper for Henry Bath, LLC, at the Gary warehouse.

Henry Bath’s copper arrived at the warehouse in

bundles of approximately sixteen to twenty-six copper

sheets. Each copper sheet was approximately three feet

long by three feet wide and weighed roughly 330 pounds,

and the top sheet of every bundle had a sticker

identifying which lot it was from. The copper is traded

on the London Metal Exchange (“LME”) by the warrant;

one warrant is equal to ten bundles. The weight of each

bundle is an important component of the trading

process, so LME regulations require each bundle to

be secured by two bands at all times.
No. 11-3281 3

Shortly after KTN began storing copper for Henry Bath,

Harris became the facilities manager, which put him

in charge of the entire Gary warehouse, and Wolfe

became the point of contact for the Henry Bath account.

In 2009, Wolfe had an in-depth conversation

with Kenneth England, manager of Henry Bath’s

U.S. operations, about the protocol for banding the

copper bundles. England informed Wolfe that it was

KTN’s responsibility to make sure that any bands that

had become severed during the copper’s transportation

to the Gary warehouse were immediately repaired. He

emphasized to Wolfe the importance of each bundle

being secured by two bands at all times, as per LME

regulations, in order to prevent copper from being

stolen from a bundle. England also told Wolfe that

KTN was not to move any copper in the Gary warehouse

from the location where it was originally placed—known

as the “place of rest”—unless it was being shipped out

or moved to save space within the warehouse.

Wolfe was also told that, before any copper shipment

could occur, Henry Bath was required to inform KTN

about the particular items that would be removed from

the warehouse and loaded onto a truck. And once a

truck was loaded but before it left the warehouse, Henry

Bath was to create a receipt—the “bill of lading”—that

would be given to the truck driver. Wolfe was also on

notice that Henry Bath would only generate a bill of

lading during its normal business hours of 8:00 a.m. to

4:30 p.m. EST. These copper-shipping procedures were

reiterated to Wolfe during a seminar at Henry Bath’s

Baltimore, Maryland, headquarters in January 2010.
4 No. 11-3281

Olds was the first KTN employee to assist Wolfe with this re- 1

bundling process. Harris asked Olds if he would be willing to

work overtime, to which Olds said yes, and then instructed

him to speak to Wolfe. Olds assisted Wolfe at 3:00 a.m. on the

next Saturday morning for roughly twelve hours and the

next Sunday morning beginning around 3:00 a.m. to 6:00 a.m.

The two men were able to create roughly five new bundles

of copper that weekend.

The first copper shipments out of the Gary warehouse occurred in December 2009. Harris instructed

Wolfe, who in turn called and directed Craig Olds and

Jose Morales (lower-level employees at KTN who performed tasks at Wolfe’s direction), to arrive at the warehouse at 3:00 a.m. When Wolfe, Olds, and Morales were

at the warehouse, two trucks arrived, and the three employees loaded certain copper bundles onto the trucks.

The trucks then left the warehouse. Wolfe testified at

trial that he participated in two copper shipments like

this during December 2009.

During the summer of 2010, Wolfe asked at least five

KTN employees—regular employees (Olds, Morales, and

Noel Santos) and temporary help (Julio Virtes and

Robert Martinez)—whether they would be willing to

assist with copper re-bundling. Wolfe told the indi- 1

viduals that the copper bundles contained too many

sheets, and they should take the top piece off, remove

the next sheet or sheets from the stack, and then put the

top piece back on the stack. This resulted in the creation

of entirely new copper bundles. The initial plan was to re-
No. 11-3281 5

The original copper bundles were banded with a “manufac2

turing band.” These bands were marked with the initials of

the company factory where the bundles were made. The bands

on the newly-formed bundles often did not have any manufacturer marks. Wolfe explained this difference by stating that

the forklift used to move bundles often caused the bands

to break, so they had to re-band the bundles with new bands.

band the original bundles, but when that proved

too difficult, the KTN employees simply left the bundles

with broken bands. The new bundles were moved to

the back of the warehouse, away from the original

copper bundles.2

The KTN employees referred to the copper re-bundling

as “G-Money’s Project,” “G-Money” being Wolfe’s nickname. Regardless of which employees were assisting at

the time, some employees removed copper sheets from

the bundles while others were responsible for moving

the newly-formed bundles to a different location.

Wolfe maintained a piece of paper with file numbers—jokingly referred to as Wolfe’s “little black

book”—that he used to keep track of which copper

bundles had sheets removed from them. The “project”

was never completed during normal KTN business

hours; employees either arrived early or stayed late

on weekdays or completed the work on weekends. Wolfe told employees who asked him about the

copper re-bundling that they were “fixing a problem

for the customer to keep the customer happy” or “not

to ask questions.”
6 No. 11-3281

Michael Cohen, who purchased the copper directly

from Harris on behalf of his business, Team Alliance

Plastics, sent trucks to the Gary warehouse to pick up

the copper. The trucks typically arrived at the Gary

warehouse between 3:00 a.m. and 4:00 a.m. to receive

the copper loads. Eron Titsworth, a truck driver for

Team Alliance Plastics, testified that he had a difficult time getting through KTN’s security gates on one

occasion, but after calling Harris, Morales arrived at

the gate in less than two minutes, and he never again

had trouble with security. Once the trucks were past

security, Olds and Morales loaded the trucks in conformance with the instructions they had received from

Wolfe regarding which copper bundles to load. The

truck drivers never received any paperwork from KTN

in connection with the copper pickups; they created

their own bills of lading in case they were stopped by

law enforcement personnel.

After the copper bundles were loaded onto the trucks,

the truck drivers transported them from the Gary warehouse to the Team Alliance Plastics warehouse in Springfield, Michigan. Upon receipt of the copper shipments,

Cohen would remove the bands and return them to

Harris. The copper was then repackaged and sold to

Stiana, a company located in Toronto, Canada. Cohen

received approximately $500,000 from Stiana for the

copper; he paid Harris approximately $360,000. Cohen

testified that he purchased roughly eleven to fourteen

trucks’ worth of copper between the first shipment

of copper in December 2009 and the last shipment

in September 2010.
No. 11-3281 7

This was a relatively small percentage of the 12,000 metric 3

tons of copper that were stored in the Gary warehouse.

In late August 2010, Henry Bath conducted a random

audit of the copper at the Gary warehouse. The auditors

discovered that the weight of certain warrants was too

light. Harris was notified of the discrepancies and informed that the auditors would return in a few

days to reweigh all of the copper stored in the

Gary warehouse.

When the Henry Bath employees returned to the

Gary warehouse in September 2010, they discovered

that many of the copper bundles had broken bands and

were missing at least one sheet of copper. They

also noticed that seven complete warrants of copper

that had been at the warehouse during the August 2010

audit were now missing. Approximately $2,900,000 worth

of copper—390 metric tons—was missing. A review of

3

Henry Bath’s records revealed that no copper left the

Gary warehouse legitimately between August 2009 and

September 2010. Two days after Henry Bath learned of

the missing copper, Harris failed to show up for work;

instead, he sent Frank Vingerhoets, the president

of KTN, a text message saying he believed he would

be fired.

Wolfe was told that day to leave the Gary warehouse

premises, and Harris and Wolfe were fired.

On November 18, 2010, a Grand Jury returned a twocount indictment against Wolfe and Harris for violating

18 U.S.C. §§ 2113(b) and 2314—bank theft and interstate
8 No. 11-3281

At some point in time, JPMorgan Chase purchased Henry 4

Bath and, therefore, was the owner of the copper stolen during

the scheme. As discussed at oral argument, this is the reason

for the “bank theft” count.

A Jäger bomb is a cocktail made by dropping a shot (1.5 5

ounces) of the alcoholic beverage Jägermeister into a pint

glass containing half a can of the caffeinated energy drink

Red Bull.

transportation of stolen goods. A four-day jury trial 4

was later held for Wolfe.

During the trial, Wolfe claimed he had no knowledge

of the copper theft scheme; he was simply following

Harris’ orders and directions. To rebut this defense, the

Government offered the testimony of Ashby Gurgon,

Wolfe’s on-and-off girlfriend. Gurgon described Harris

and Wolfe as living extravagantly during the summer

of 2010. Gurgon, Wolfe, Harris, and Harris’ mistress

(Shantel Cottew) frequented bars and clubs in Chicago

and spent the night at the Peninsula Hotel. They flew

first class on trips to Puerto Rico and Las Vegas, and rode

in limousines and party buses. Harris, whose salary was

approximately $70,000, paid for everything. Examples of

his expenses during the summer of 2010 include the

following: $800 in one night for Jäger bomb shots; $10,000 5

a month for his mistress’ rent in Ogden Dunes, Indiana;

$2,000 for Gurgon to play a dice game; $2,000 for

Gurgon’s mortgage; $14,800 (in $100 bills) for a down

payment on a 2010 Chevrolet Tahoe; $18,000 for a 2007

Ford Mustang; and “thousands of dollars” for Wolfe’s

sister Deanna’s wedding.
No. 11-3281 9

Gurgon testified that Wolfe, Harris, and Harris’ mistress 6

referred to whatever scheme or illegitimate work they were

involved in at the Gary warehouse as “the business.” 

Harris paid Wolfe approximately $310 to $350 per week in 7

addition to Wolfe’s KTN paycheck. Wolfe claimed Harris

offered to pay him this amount in order to entice him to work

at the Gary warehouse, despite the low hourly wage, after

graduating from high school in 2008.

Gurgon also described what she knew about “the business.” She said Wolfe told her that Harris was the leader 6

and he was a partner, though he was later demoted and

called a “soldier” for messing up. When discussing the

time period after the first audit, Gurgon said that Wolfe

began working “really hard” during the midnight hours.

She then described how, after a night out drinking, Wolfe

told her that Henry Bath would find out what was missing

and that he could get in a lot of trouble. Gurgon testified

that Wolfe described the plan for Harris to take all the

blame and to “go big or go home” before the second audit.

Additionally, Gurgon said that, after Wolfe was suspended

from his job with KTN, he spoke to her about his meeting

with a lawyer and having nothing to worry about because

he was not in charge of the operation. For Wolfe’s role in

the business, Gurgon said that Harris agreed to match

whatever payment Wolfe received from KTN. Gurgon also 7

said that Wolfe, Harris, and Nick Chorak—another

KTN employee at the Gary warehouse—were the only

people who received direct compensation from the

copper theft.
10 No. 11-3281

KTN maintained a timekeeping system to record its em- 8

ployee’s arrival and departure times at the Gary warehouse.

Some employees, including Wolfe, were required to punch

in; Harris was not.

Wolfe also instructed Olds and Morales to load dunnage—i.e.,

9

waste-like cardboard, broken bands, or old pallets—onto the

trucks and around the copper bundles to keep the bundles

from moving during transport. Olds and Morales thought

this was out of the ordinary given the weight of the bundles.

The Government also played a surveillance video

from the Gary warehouse taken on August 23, 2010, at

approximately 3:45 a.m. The video showed two trucks

being loaded and an individual walking along the edge

of the loading dock. Four witnesses for the Government

testified that Wolfe was more than likely the man in

the video; one Government witness said he could not

identify the man. Wolfe was unable to tell whether he

was the disputed man in the video, stating, “I— I don’t

know. I don’t know if it was me. I can’t make a—I don’t

know.” This was a central issue because Wolfe did not

punch in until 4:00 a.m. Additionally, the video did 8

not show any copper in the trucks; it only showed

dunnage in the back.

9

During closing argument, the Government lawyer

argued that Wolfe was a knowing participant of the

scheme from the beginning and his testimony was not

to be trusted. The prosecutor supported this contention

by highlighting the fact that Wolfe would not even

identify himself on the video.
No. 11-3281 11

The jury convicted Wolfe on both counts.

At Wolfe’s sentencing hearing on September 29, 2011,

the district court accepted the Presentence Investigation

Report (“PSR”) over Wolfe’s objection and sentenced

Wolfe to eighty-eight months’ imprisonment on each

count, to be served concurrently, followed by concurrent

three-year terms of supervised release. Restitution in

the amount of $3,028,011.29 was also imposed.

II. DISCUSSION 

Wolfe challenges statements made by the prosecutor

during his closing argument, the district court’s determination of the victim loss amount attributed to him,

and the district court’s restitution order. We address

each challenge in turn.

A. Closing Argument

Wolfe claims two categories of improper remarks

during the Government’s closing argument denied him

a fair trial: (1) credibility-vouching for the Government’s

witness, Gurgon; and (2) misstating trial testimony.

These statements were not objected to at trial, so our

review is limited to plain error.

A review of comments by a prosecutor involves a twopart inquiry. First, we consider whether the challenged

remark was improper, and second, whether the remark

deprived the defendant of a fair trial. United States

v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011). We
12 No. 11-3281

consider five factors to determine whether the remarks

prejudiced the defendant: “(1) the nature and seriousness

of the misconduct; (2) the extent to which the comments

were invited by the defense; (3) the extent to which

any prejudice was ameliorated by the court’s instruction

to the jury; (4) the defense’s opportunity to counter

any prejudice; and (5) the weight of the evidence supporting the conviction.” United States v. Adams, 628 F.3d

407, 418-19 (7th Cir. 2010). The plain error review

requires Wolfe to demonstrate that the trial’s outcome

would have been different absent the prosecutor’s remarks. Wolfe faces an uphill battle in making this challenge as improper statements during closing argument rarely constitute reversible error. United States

v. Nunez, 532 F.3d 645, 654 (7th Cir. 2008); United States v.

Anderson, 303 F.3d 847, 854 (7th Cir. 2002).

1. Credibility Vouching Comments

We have recognized two types of impermissible vouching: “a prosecutor may not express her personal belief

in the truthfulness of a witness, and a prosecutor may

not imply that facts not before the jury lend a witness

credibility.” United States v. Alviar, 573 F.3d 526, 542

(7th Cir. 2009). A prosecutor may, however, comment on

a witness’ credibility as long as “the comment reflects

reasonable inferences from the evidence adduced at

trial rather than personal opinion.” Nunez, 532 F.3d at 654

(quotations omitted). Wolfe identifies three examples

of improper vouching, which we now consider.
No. 11-3281 13

Wolfe’s first challenge is to the following remark:

I think [Ms. Gurgon] was—and I think you would agree

with me, hopefully you’ll agree with me, one of the clearest, sharpest witnesses on trial. Obviously she’s a

very bright person. (emphasis added).

The Government acknowledges that vouching occurs

when a prosecutor expresses his own personal belief

regarding a witness’ credibility. That is exactly what we

have here. In fact, it is telling that the Government never

even mentions in its brief the first part of the quote;

it only mentions the “one of the clearest, sharpest witnesses on trial” portion. But we still must consider

whether the improper statement affected the fairness

of the trial overall, and if so, whether the outcome

would have been different but for the remark.

We believe that, at worst, the prosecutor’s comment

that he hopes the jury will agree with his assessment of

Gurgon’s testimony was “borderline” inappropriate. See

United States v. McMath, 559 F.3d 657, 667 (7th Cir.

2009) (concluding that the prosecutor’s comment that

the police officers were “ ‘really credible,’ while technically improper vouching, also seem[ed] fairly innocuous in context.”). Here, the prosecutor immediately

followed his comment with a reference to Gurgon’s

trial testimony: “On cross examination, when [defense

counsel] asked her about the double life, she actually

said, you know, it wasn’t just a double life; it was a triple

life. It was the life with me, the life with Ms. Yaw and

then his life at the warehouse.” Gurgon also testified at

length and in detail about the summer of 2010 with
14 No. 11-3281

Wolfe and Harris, in addition to what Wolfe told her

about the business. In short, the prosecutor should not

have injected his own personal beliefs into the trial, but

the evidence supported his characterization and this

misstep in the context of the entire case does not support a finding that Wolfe was denied a fair trial. A

full discussion of the relevant factors for prejudice

is unnecessary.

Wolfe’s next challenge is to the following statement

in which the prosecutor characterized Gurgon as an

innocent bystander of the scheme whose testimony

should be given more weight:

And unlike Mr. Morales, and unlike Craig Olds, and

unlike Noel Santos, Ms. Gurgon has no reason to

shade the truth in this case or to shade her testimony. She doesn’t have to worry about getting

charged with anything. She was working—she

wasn’t working at KTN. She wasn’t involved in this.

Wolfe contends these statements were improper because the Government was implying that it had independently investigated Gurgon’s role in the copper theft

and cleared her of any wrongdoing, neither of which

was a fact in evidence, and we agree. The evidence presented at trial does not support an inference that Gurgon

was entirely guilt-free because she did not work at

KTN—e.g., testimony demonstrated that she benefitted

from the crime’s financial fruits—but again, this does

not end the inquiry.

All of the relevant factors except factor number two

tip the scale in favor of a finding that Wolfe was not

prejudiced by the remark. Credibility was a focus of the
No. 11-3281 15

trial, but whether Gurgon was criminally involved in the

scheme did not make her testimony any more or less

believable because she was not testifying pursuant to

any agreement with the Government. She had no

extra incentive to testify a certain way. See United States

v. Clarke, 227 F.3d 874, 885 (7th Cir. 2000) (describing

how both sides may argue the competing inferences

resulting from a witness testifying pursuant to a plea

agreement). The prosecutor’s comments were neither

serious nor substantial mistakes.

Moreover, Wolfe had an opportunity to respond to

the remark during his closing argument (the Government did not reference it during its rebuttal), and the

district court instructed the jury before and after

closing arguments that the attorneys’ statements were

not to be taken as evidence. (There was no instruction

immediately following the remark because Wolfe did

not contemporaneously object at trial.)

Lastly, the evidence supporting the conviction was

more than sufficient. Gurgon’s testimony was no doubt

important, but the testimony of the other witnesses—

namely, Olds and Morales—firmly establishes Wolfe’s

knowledge of and participation in the scheme. They

both described taking orders from Wolfe and being

told not to question him about the copper. Morales additionally described Wolfe as indicating a guilty conscience

once KTN began to investigate the missing copper, testifying that Wolfe said, “We’re screwed,” and, “[W]e

need to get our stories together and make sure we are

doing the same thing, that we were doing our jobs.”
16 No. 11-3281

In short, we are not persuaded that Wolfe was prejudiced by the remark, even when considered with the

first challenged statement.

Wolfe’s third challenge is to the Government’s description of Gurgon’s memory:

And you heard [Gurgon] say she’s got no hard

feelings against the defendant despite what happened in their relationship. Her kids still ask about

him. She obviously has a memory for detail.

These remarks lack any indicia of impermissibility, as

the prosecutor made them shortly after his description

of Gurgon’s testimony explaining Wolfe’s triple life

(discussed above). That “triple life” comment alone was

sufficient to support the inference that Gurgon had a

memory for detail. See Nunez, 532 F.3d at 654. Wolfe

nevertheless directs our attention to United States v.

Francis, 170 F.3d 546 (6th Cir. 1999), to avoid this conclusion. Id. at 552 (concluding that the prosecutor’s comments

about the defendant’s credibility were impermissible

because the prosecutor did not provide evidentiary

examples supporting the inference). He contends

the sentence about Gurgon’s kids does not support the

“more general, powerful statement” that Gurgon has a

memory for detail. We do not read the rule regarding the

use of trial evidence to support a closing argument characterization as requiring an attorney to make “bookend”

comments. An inference made during closing argument

need not always be introduced, nor immediately

followed, by a direct reference to the trial record. See

Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008) (“At-
No. 11-3281 17

torneys have more leeway in closing arguments to

suggest inferences based on the evidence, highlight

weaknesses in the opponent’s case, and emphasize the

strengths in their own case.”). References to evidence

supporting an inference are sufficient if they are made

contemporaneously; that occurred here.

2. Trial Testimony Comments

Misstatement of evidence may be improper prosecutorial conduct. See United States v. Badger, 983 F.2d 1443,

1450-51 (7th Cir. 1993). When discussing the video at

trial and why Wolfe would not admit he is in the video,

the prosecution explained that “all the other witnesses”

identified the man on the video as Wolfe. Wolfe correctly

points out this was a misstatement of the evidence:

Titsworth, a truck driver who transported the stolen

copper on a few occasions, testified that he could not

positively identify the man at issue in the video. The

Government argues in response that it did not misstate

the evidence because, “[n]otwithstanding Titsworth,

every government witness who could identify the

first individual shown in the video testified that it

was Wolfe.” We interpret this clarification as a concession that the prosecutor’s remark was indeed a misstatement of the evidence.

Again, however, Wolfe is unable to demonstrate that

he was prejudiced by the prosecutor’s remark. The only

witness familiar with Wolfe’s appearance who could not

conclusively identify Wolfe in the video was Wolfe

himself. The four Government witnesses who identified
18 No. 11-3281

Wolfe in the video were his boss (Vingerhoets), his

co-workers (Olds and Morales), and his girlfriend

(Gurgon)—i.e., the four Government witnesses who

knew Wolfe well. It is not all that surprising that

Titsworth, who testified that he had only met Wolfe on

one prior occasion and incorrectly thought Wolfe’s

first name was Justin, could not identify who was in

the video. The Government did not take a “No” and

turn it into a “Yes;” it merely failed to mention the unfamiliar witness who could not identify the man in the

video. Even Wolfe’s counsel conceded in his closing

argument, “And it probably is him [in the video].” We

do not believe that the remark justifies a new trial.

B. Victim Loss Amount

The district court found the victim loss amount attributable to Wolfe to be $2,947,348. U.S.S.G § 2B1.1(b)(1)(J) calls

for an 18-level increase if the victim loss is between

$2,500,000 and $7,000,000, so Wolfe’s offense level calculation was increased 18 levels. Wolfe claims the victim

loss calculation was improper because, he says, the evidence did not support a calculation above $2,500,000.

Therefore, his offense level should have been 2 levels

lower. Specifically, Wolfe contends that he was unaware

of the copper theft in 2009, that the value of the copper

stolen in 2010 is likely $2,500,000 or less, and that he

only loaded four trucks. We review the challenged victim

loss calculation for clear error. United States v. Reese,

666 F.3d 1007, 1021 (7th Cir. 2012).
No. 11-3281 19

Olds described one additional occasion when Wolfe and 10

Harris personally loaded three trucks, but he could not see

what they were loading onto the trucks. 

Six thousand five hundred pounds is equal to approximately 11

2.948 metric tons.

The Government called Olds as a witness at the sentencing hearing. Olds testified that during the 2010 summer, copper was loaded, at a minimum, on fifteen

to eighteen trucks. Each truck was believed to transport 10

seven bundles of copper, with each bundle weighing

approximately 6,500 pounds. Based on these numbers, 11

approximately 370 metric tons of copper were stolen

from the KTN warehouse during the 2010 summer.

The district court found this testimony credible, as well

as the testimony that all of the truck loading was done

at Wolfe’s direction. Wolfe contends this was improper

because: (1) Olds’ testimony was contested (other testimony could be interpreted to show 40 metric tons was

stolen in 2009 and Olds said the total number of metric

tons stolen during the 2010 summer was 390); (2) the

district court relied on information from Harris (who

even the Government acknowledged was not credible);

(3) and the district court failed to consider Wolfe’s interpretation of the record.

We decline to disturb the district court’s credibility

determinations in this matter. See United States v.

Smith, 576 F.3d 681, 687 (7th Cir. 2009) (“[W]e do not

‘second-guess the trial judge’s credibility determinations.’ ” (quoting United States v. French, 291 F.3d 945,

951 (7th Cir. 2002))).
20 No. 11-3281

Furthermore, it did not matter how many trucks

Wolfe personally loaded. Section 1B1.3(a)(1)(B) provides

that a defendant is accountable for others’ conduct that

is in furtherance of the criminal activity and reasonably

foreseeable. See United States v. Sheneman, 682 F.3d 623,

631 (7th Cir. 2012). And regardless of how much copper

was stolen in December 2009, the district court determined Wolfe was a knowing participant from the outset.

The evidence was sufficient to support a conclusion

that $2,947,348 of copper (391.941 metric tons) was

stolen during the entire copper theft scheme and Wolfe

was a knowing participant from the beginning. The

losses were reasonably foreseeable to Wolfe, and the

district court acted reasonably when it accepted the

PSR’s victim loss calculation.

C. Restitution

The district court imposed a restitution order totaling

$3,028,011.29. Wolfe challenges this amount on the

ground that it was not supported by the jury’s factual

findings, a violation of the Sixth Amendment under

Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically,

he contends that the recent Supreme Court decision in

Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct.

2344 (2012), first, requires us to overturn our longstanding jurisprudence that restitution is not a criminal

penalty, and second, mandates that all restitution

amounts be supported by the jury’s verdict.

A discussion of the rule of Apprendi and the Southern

Union decision is necessary to give context to Wolfe’s
No. 11-3281 21

claims. Apprendi stands for the proposition that, “[o]ther

than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.

“Statutory maximum” has been defined as “the maximum sentence a judge can impose without additional

jury findings.” United States v. Seymour, 519 F.3d 700,

709 (7th Cir. 2008) (citing Blakely v. Washington, 542 U.S.

296, 303-04 (2004)). Other sentencing facts can be found

by the district court using a preponderance of the

evidence standard. United States v. Kriegler, 628 F.3d

857, 863 (7th Cir. 2010). The recent trend, in order

to circumvent later constitutional concerns, has been to

submit more facts to the jury. See United States v. Booker,

543 U.S. 220, 277-78 (2005) (Stevens, J., dissenting) (“In

many cases, prosecutors could avoid an [Apprendi]

problem simply by alleging in the indictment the facts

necessary to reach the chosen Guidelines sentence.”).

The Supreme Court continued this trend in Southern

Union. A jury convicted Southern Union, a natural gas

distributor, on one count of violating the Resource Conservation and Recovery Act of 1976, which allowed for

the imposition of a fine not more than $50,000 per

day of violating the Act. Southern Union, 132 S. Ct. at

2349. The probation office determined Southern Union

had violated the Act for 762 days, so a maximum fine

of $38.1 million was appropriate. Id. The district court

imposed a $6 million fine, plus a “community service

obligatio[n]” of $12 million. Id. Southern Union argued

that Apprendi applied to criminal fines, and because
22 No. 11-3281

the jury was only required to find a violation for one

day (the jury verdict form only listed the violation’s

start date), the district court’s imposition of a fine

greater than the $50,000 single-day penalty required

extra fact-finding in violation of Apprendi. Id. The Government contended that Apprendi did not apply to

criminal fines. Id. The U.S. Court of Appeals for the

First Circuit accepted the Government’s argument and

upheld the fine. Id.

The Supreme Court reversed, holding that “the rule

of Apprendi applies to the imposition of criminal fines.”

Id. at 2357. The Court stated that it had never distinguished between types of punishments—e.g., sentences, penalties, or punishments—and “[w]here a fine

is substantial enough to trigger a party’s [Sixth Amendment jury trial right], Apprendi applies in full.” Id. at 2351-

52. In response to the Government’s policy concerns,

the Court concluded that applying Apprendi to criminal

fines was simply an expected extension of the doctrine.

Id. at 2357.

We review an Apprendi challenge de novo. Seymour,

519 F.3d at 709. However, Wolfe failed to object to the

restitution order on Apprendi grounds in the district

court, so the Government argues we should review his

argument for plain error. See United States v. Fluker,

Nos. 11-1013, 11-3008 & 11-3082, 2012 U.S. App. LEXIS

22219, at *34 (7th Cir. Oct. 26 2012) (stating that we

review a sentencing challenge for plain error if it was not

made in the district court). Wolfe points out, and a

review of our case law demonstrates, a disputed question
No. 11-3281 23

To the extent Wolfe believes that we should create an excep- 12

tion to this rule because of the Government’s contention that

a legal argument on appeal based on a subsequent Supreme

Court case can never present a “clear or obvious” error, we

do not need to decide this issue because the result here is the

same regardless of which standard of review is applied. See

United States v. Boden, 854 F.2d 983, 990 n.2 (7th Cir. 1988)

(stating that “[i]n almost all cases, including this one, the

result will be the same under any standard”).

as to which standard should be applied to an Apprendi

challenge if the issue was not raised in the district court.

Citing United States v. Kamoga, 177 F.3d 617, 622 n.5 (7th

Cir. 1999), Wolfe contends we should apply a de novo

review because the question before us is purely legal—i.e.,

whether restitution is a criminal penalty, subject to

Apprendi.

An Apprendi challenge is reviewed for plain error if it

was not made in the district court. See United States v. 12

Hernandez, 330 F.3d 964, 979 (7th Cir. 2003). Accordingly,

we review Wolfe’s Apprendi argument for plain error.

Now to the merits of Wolfe’s argument:

Wolfe argues that his restitution order is similar to the

criminal fine in Southern Union because the order is a “lifelong payment burden.” Yet, the only way Southern

Union may affect the outcome of this case is if we first

conclude restitution is a criminal penalty. (If so, the

issue becomes whether Southern Union’s holding that

Apprendi applies to criminal fines should extend to

another type of criminal penalty: restitution.) Reaching
24 No. 11-3281

such a conclusion, however, would be in direct opposition to this Circuit’s well-established precedent that

restitution is not a criminal penalty. See United States

v. Bonner, 522 F.3d 804, 807 (7th Cir. 2008); see also

United States v. LaGrou Distrib. Sys., Inc., 466 F.3d 585,

593 (7th Cir. 2006) (“We reiterate: restitution is not a

penalty for a crime for Apprendi purposes since restitution for harm done is a classic civil remedy that is administered for convenience by the courts that have

entered criminal convictions.” (internal quotation marks

omitted)). Wolfe admitted this at oral argument and

conceded that we would have to overrule our precedent

to find in his favor.

Having examined our sister circuits who have

addressed whether restitution is civil or criminal in

nature, we find ourselves in the minority. Only the

Eighth and Tenth Circuits, like us, have found restitution

to be civil in nature. See United States v. Millot, 433 F.3d

1057, 1062 (8th Cir. 2006) (stating that restitution orders

“are not in the nature of a criminal penalty.” (quoting

United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005)));

United States v. Nichols, 169 F.3d 1255, 1279-80 (10th Cir.

1999) (stating that the purpose of restitution under

the Victim Witness Protection Act “is not to punish defendants or provide a windfall for crime victims but

rather to ensure that victims, to the greatest extent possible, are made whole for their losses.” (quoting United

States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir. 1993))).

But a “compelling reason” is required to overrule our

Circuit’s precedent. United States v. Kendrick, 647 F.3d 732,
No. 11-3281 25

734 (7th Cir. 2011). Being in the minority is not enough.

This is true even if the trend is against us. See Patel v.

Holder, 563 F.3d 565, 569-71 (7th Cir. 2009) (Ripple, J.,

concurring) (agreeing with the court’s judgment because

it was based on this Circuit’s precedent but writing

separately to discuss how our interpretation of the

statute “puts us on the distinct minority side of an

intercircuit split”); but see Russ v. Watts, 414 F.3d 783,

788 (7th Cir. 2005) (describing why we may overturn our

Circuit precedent if no other circuit accepts it (quoting

United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995))).

Wolfe’s only other arguments as to why we should treat

restitution as a criminal penalty are that the Supreme

Court referred to restitution as a “criminal punishment”

in Pasquantino v. United States, 544 U.S. 349, 365 (2005),

the restitution order is a “significant infringement

on [his] freedom,” and Apprendi should be “extended

broadly.”

We have already rejected the Pasquantino argument,

so that argument is unavailing. See Bonner, 522 F.3d at

807. Likewise, whether a court judgment infringes

upon someone’s life does not make the judgment inherently criminal. For example, a defendant who is found

liable in a civil tort case could also be on the hook for

a significant damage award. See, e.g., Kimberlin v. DeLong,

637 N.E.2d 121, 129 (Ind. 1994) (upholding a $1,610,000

jury verdict against the defendant in an intentional tort

case). That type of award would surely infringe upon

an individual’s financial freedom, but no one would

argue that the damage award, imposed under the

same preponderance of the evidence standard Wolfe
26 No. 11-3281

essentially contests, invokes any Sixth Amendment concerns. And the degree to which Apprendi is extended

has little value when answering the initial question

before us: whether restitution is a criminal penalty. As

we stated, Southern Union and the scope of Apprendi

only come into consideration if we first conclude restitution is a criminal penalty. We decline to reach such

a conclusion.

Wolfe has not provided us with a compelling reason

as to why the holding in Southern Union—or this case

in general— should be used as the vehicle to overturn

our long-standing Circuit precedent that restitution

is not a criminal penalty. The district court’s restitution order was not required to be supported by the

jury’s fact-finding, and therefore, it did not violate

Wolfe’s Sixth Amendment rights.

III. CONCLUSION

We AFFIRM the judgment of the district court for the

reasons discussed above.

12-5-12