1 Defendants involved in this same fraudulent scheme have come before this court in

United States v. Bryson, No. 03-2280; United States v. Girton, No. 03-2905; and United

States v. Neely, No. 03-2904. 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 12, 2005

Decided August 10, 2005

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

Nos. 04-3358 & 04-3359

UNITED STATES OF AMERICA,

Plaintiff-Appellee

,

v.

GERARD HAWKINS and

MONIQUE HAWKINS,

Defendants-Appellants

. Appeals from the United States District

Court for the Southern District

of Indiana, Indianapolis Division.

No. 03 CR 114

Larry J. McKinney,

Chief Judge

.

O R D E R

Gerard and Monique Hawkins appeal the sentences they received after b eing

convicted for their involvement in an extensive mortgage fraud scheme operating in the

Indianapolis area. The essence of the scheme, which we have addressed before, 1

involved the use of inflated home appraisals to obtain artificially oversized loans from

lending institutions. After receiving a false home appraisal from a willing appraiser,

the parties used duplicate sets of settlement statements, one reflecting the true sale

price and another showing the inflated price , which was sent to the lender. The UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53Nos. 04-3358 & 04-3359 Page 2

2 Monique Hawkins also raised a claim of ineffective assistance of counsel, but at oral

argument she was permitted to withdraw that claim in order to pursue it in collateral

proceedings.

3 The PSR had given Gerard a criminal history category of II, but that was

subsequently reduced upon his objection. difference between the true sale price and the inflated loan amount was then divvied

up among the members of the conspiracy.

Moniqu e Hawkins’s role in the scheme was made possible by her job as a loan

originator for a mortgage brokerage called Investor’s Mortgage Group. In that position

she originated fraudulent loans to her husband, Gerard Hawkins, and others; she was

also instrumental in obtaining some of the inflated home appraisals. Both defendants

also defraud ed an acquaintance of theirs into buying several low-priced homes at

drastically inflated

prices. Following a week-long jury trial, both Hawkinses were

convicted on charges of conspiracy and mail fraud. Gerard Hawkins was also convicted

of money laundering for his efforts to conceal the proceeds of their activities.

The sole issue in this appeal is the propriety of the sentences under United States

v. Booker, 125 S. Ct. 738 (2005). 2 The presentence report (“PSR”) for Monique

Hawkins calculated an offense level of 22 and a criminal history category of I, resulting

in a Guidelines range of 41-51 months’ imprisonment. The offense level was comprised

of a base offense level of 6, an addition of 2 levels for abuse of a position of trust, and

an increase of 14 levels for a loss amount of some $506,000. See U.S.S.G. §§ 3B1.3

, 2B1.1(H). Gerard Hawkins did not fare as well in his Guidelines sentence calculation;

he received the same base offense level of 6, but added to that were 16 levels for a loss

amount above $1,000,000, as well as 2 levels for his conviction for money laundering

under 18 U.S.C. § 1956. S ee U.S.S.G. § 2S1.1(b)(2)(B). The resulting Guidelines range

for Gerard was 51-63 months. 3

But the district court did not follow the Sentencing Guidelines. The Hawkinses’

sentencing hearings occurred in the wake of this court’s decision in United States v.

Booker, 375 F.3d 508 (7th Cir. 2004), which held that, after Blakely v. Washington,

542 U.S. 296 (2004), judicial fact-finding under the Sentencing Guidelines violated the

Sixth Amendment. Because the hearing occurred before the Supreme Court’s decision

in Booker, however, the district court crafted a novel approach designed to deal with

the interim uncertainty. First, the judge decided to use the base offense level of 6,

which was not dependent on judge-found facts, as a multiplier. For Monique the judge

multiplied that base level by 4, the number of counts on which Monique was convicted.

The resulting offense level of 24 produced a range of 51-63 months; the judge sentenced

Monique to a term of 51 months’ imprisonment, which by happenstance also fell within

the original 41-51 months Guideline range calculated in the PSR, although at the top

of that range. The judge stated that he viewed this sentence as “appropriate if theNos. 04-3358 & 04-3359 Page 3

Guidelines apply 100 percent” and “appropriate without the Guidelines.”

For Gerard, however, the same mathematical approach would have yiel d ed a

draconian result because he stood convicted of 23 counts. So instead of multiplying the

number of counts by the base offense level of 6, the judge halved the base offense level

and used a multiplier of 3. He then multiplied 3 by the number of money laundering

counts only (12) for a resulting offense level of 36. The judge then reduced that level

to 29 in an effort to achieve proportionality with the sentences of the other defendants

convicted in the mortgage scheme. The resulting range was 87-108 months, and the

judge sentenced Gerard to 87 months’ imprisonment. This was the low end of the

creatively calculated range, but unlike Monique’s sentence, the result was higher than

the range a standard Guidelines application would have produced.

Given the uncertainty following the Supreme Court’s Blakely decision and our

decision in Booker

, the sort of ad hoc approach undertaken by the district court in this

case is understandable. However, following the Supreme Court’s decision in B ooker

and subsequen

t developments in circuit case law since B ooker

, it is clear that the

defendants must be resentenced.

While the Supreme Court’s remedial opinion in Booker transformed the Guidelines

from a mandat ory regime into an advisory one, the Court made it clear that the

sentencing court “must consult those Guidelines and take them into account when

sentencing.” B ooker, 125 S. Ct. at 767. We have held that “obedience to the Supreme

Court’s mandate in Booker requires that the district court first calculate the correct

guideline sentence so that that calculation can serve as a meaningful guide in the

district court’s imposition of a final sentence.” U nited States v. Baretz, 411 F.3d 867

(7th Cir. 2005); see also United States v. Dean, No. 04-3172, 2005 WL 1592960, *4 (7th

Cir. July 7, 2005). A decision to deviate from a properly calculated but advisory

Guidelines range must be accompanied by an explanation of the factors in 18 U.S.C.

§ 3553(a) that the district court believes support the sentence imposed. Dean , 2005

WL 1592960, at *4 (“Judges need not rehearse on the record all of the considerations

that 18 U.S.C. 3553(a) lists; it is enough to calculate the range accurately and explain

why (if the sentence lies outside it) this defendant deserves more or less.”).

That did not occur here. Moreover, the error cannot be considered harmless, as the

government argues. We have recently held that a district court’s failure to properly

calculate a Guidelines sentencing range and consult that range as a starting point

be fore explaining any deviation is not harmless error. U nited States v. LaShay,

No. 04-3378, 2005 WL 1812937, *4 (7th Cir. Aug. 3, 2005). In this case, the district

court’s arithmetic approach just happened to produce a sentence at the top of the PSR’s

Guidelines range for Monique but cannot be characterized as a sentence meaningfully

guided by a properly calculated, thoug h advisory, Guidelines range. The court’s

approach produced a sentence for Gerard that exceeded the PSR’s Guidelines range

and was not accompanied by the explanation contemplated by Dean

. Accordingly, theNos. 04-3358 & 04-3359 Page 4

defendants’ sentences are V ACATED and the case is R EMANDED for resentencing as to

both defendants.

One final matter: Gerard Hawkins’ counsel, Jesse Coleman, did not appear for oral

argument. On May 20, 2005, we issued an order to show cause seeking an explanation

for counsel’s nonappearance. Coleman has not responded. Accordingly, Coleman is

hereby prohibited from practicing before this court until he provides an explanation for

his n onappearance at oral argument in this case. We reserve the issue of whether

further sanctions are appropriate.