# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 26, 2014

Decided April 23, 2014

Before

DIANE P. WOOD, Chief Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12

‐ 3792

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

WALTER HOLMICH,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

No. 11

‐ 30028

‐ 001

Sue E. Myerscough,

Judge.

O R D E R

Between 2006 and 2011 Walter Holmich managed several businesses that, without

any intention ever to pay their subcontractors, procured government contracts. He pleaded

guilty to four counts of wire fraud and was sentenced within the guidelines range to 130

months’ imprisonment; he was also ordered to pay restitution of almost $800,000. Holmich

filed a notice of appeal, but his appointed counsel asserts that any appeal would be

frivolous and moves to withdraw under Anders v. California

, 386 U.S. 738 (1967). Holmich

opposes counsel’s motion. See C IR

. R. 51(b). Counsel’s brief explains the nature of the case

and addresses the issues that a case of this kind might be expected to involve. Because the

analysis appears to be thorough, we limit our review to the points counsel has identified

and Holmich has raised. See United States v. Schuh

, 289 F.3d 968, 973–74 (7th Cir. 2002). NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 3792 Page 2

Counsel first informs us that Holmich wishes to challenge the validity of his guilty

pleas. Because Holmich did not seek to withdraw his guilty pleas in the district court, our

review would be for plain error. See United States v. Davenport

, 719 F.3d 616, 618 (7th Cir.

2013); United States v. Kilcrease

, 665 F.3d 924, 927 (7th Cir. 2012). Counsel notes two

shortcomings in the plea colloquy: the district court neglected to inform Holmich that a

special assessment would be ordered, F ED

. R. C IV

. P. 11(b)(1)(L), and that his statements

under oath during the colloquy could be used against him in a prosecution for perjury, id.

(b)(1)(A). We agree with counsel that neither shortcoming qualifies as plain error. The

omission regarding a special assessment was immaterial because the government, at the

court’s prompting, set forth the penalty structure for each offense, including the $100

mandatory special assessment, and defense counsel represented in open court that he

understood and agreed with the government’s representation. See United States v. Driver

,

242 F.3d 767, 771 (7th Cir. 2001) (court’s omissions not plain error when record

demonstrated defendant “knew most if not all of what the district judge forgot to

mention”). And the court’s failure to inform Holmich that false statements under oath

might subject him to prosecution for perjury was harmless because Holmich faces no

current or prospective prosecution for perjury. See United States v. Blalock

, 321 F.3d 686, 689

(7th Cir. 2003).

Holmich asserts in his Rule 51(b) response that his pleas were not knowing because

he did not understand how his guidelines range would be calculated. Federal Rule of

Criminal Procedure 11, however, requires only that district courts inform defendants that

the guidelines apply but are merely advisory, F ED

. R. C IV

. P. 11(b)(1)(M); it does not require

district courts to discuss how the guidelines will apply in the defendant’s specific case. See,

e.g

., United States v. Villareal

‐ Tamayo

, 467 F.3d 630, 633 (7th Cir. 2006); United States v. Parker

,

368 F.3d 963, 967–68 (7th Cir. 2004). A defendant’s mistake about his potential sentence

does not undermine an otherwise knowing guilty plea. See United States v. Redmond

, 667

F.3d 863, 872–73 (7th Cir. 2012); United States v. Bowlin

, 534 F.3d 654, 660 (7th Cir. 2008).

Counsel next considers whether Holmich could argue that the district court erred

by adopting the probation officer’s finding that the total loss for guidelines purposes was

approximately $4.5 million. At sentencing Holmich raised two objections to this figure.

First, he asserted that a particular fraudulent contract should not be considered because he

was not involved in that transaction and so it was not relevant conduct. Second, he argued

that the probation officer’s method for calculating loss overstated the loss actually incurred

by the victims. Specifically, Holmich argued that certain loss calculations should have

taken into account the 15% markup he allegedly charged the government over the priceNo. 12

‐ 3792 Page 3

charged by the subcontractor. But Holmich did not submit any evidence calling into

question the accuracy of the facts set forth in the PSR, and so the district court was entitled

to rely on the probation officer’s loss calculation. See United States v. Love

, 680 F.3d 994, 999

(7th Cir. 2012); United States v. O’Doherty

, 643 F.3d 209, 219 (7th Cir. 2011). Moreover,

Holmich’s objections would not have changed the guidelines calculation because, if

accepted, they would have reduced the total loss only to approximately $4 million. Because

the guidelines apply an 18

‐ level increase in total offense level if the defendant’s crime

results in a loss between $2.5 million and $7 million, U.S.S.G. § 2B1.1(b)(1) (2011), the same

18

‐ level increase would apply.

Holmich, citing Alleyne v. United States

, 133 S. Ct. 2151 (2013), argues that, for

guidelines purposes, the amount of loss for which he can be held responsible is the amount

listed in the indictment, because that is the amount to which he pleaded guilty. But Alleyne

holds only that facts that increase the minimum authorized statutory punishment must be

admitted or proven beyond a reasonable doubt. Id. at 2155, 2161. It does not affect

factfinding for guidelines calculations, see United States v. Hernandez

, 731 F.3d 666, 672 (7th

Cir. 2013); United States v. Claybrooks

, 729 F.3d 699, 708 (7th Cir. 2013).

Holmich relatedly argues that the restitution order must be adjusted to reflect only

those losses specified in the indictment because, he insists, Alleyne requires that restitution

amounts be charged in the indictment and proven beyond a reasonable doubt. But we

repeatedly have said that Apprendi v. New Jersey

, 530 U.S. 466 (2000), and its progeny

(including Alleyne ), do not apply to the calculation of restitution. See United States v. Wolfe

,

701 F.3d 1206, 1216–17 (7th Cir. 2012) (rejecting argument that Southern Union Co. v. United

States

, 132 S. Ct. 2344 (2012), extends the holding of Apprendi to restitution); United States

v. Bonner

, 522 F.3d 804, 806–07 (7th Cir. 2008). 1 We recognized in Wolfe that the circuits are

1

We do find errors in the restitution order, but they are harmless. First, the restitution

order includes some improper compensation: $17,730.78 of the restitution would

compensate victims for fees and costs associated with obtaining default judgments against

Holmich

‐ run companies, but fees or costs should not be included in restitution orders.

See United States v. Scott

, 405 F.3d 615, 620 (7th Cir. 2005); United States v. Seward

, 272 F.3d

831, 839 (7th Cir. 2001). Second, a typographical error affects one other award: The district

court ordered restitution of $28,413 paid to United Plastics Fabricating, Inc., but the PSR

elsewhere reports that the company lost $28,143 as a result of its contract with Holmich.

Given these inconsistent figures, we cannot say that the government proved the larger

amount by a preponderance of the evidence, as required by 18 U.S.C. § 3664(e). But theNo. 12

‐ 3792 Page 4

split over whether restitution is a civil or criminal penalty (and thus whether Apprendi

applies to restitution orders), but the question is settled in this circuit, see 701 F.3d at

1217(recognizing circuit split and reaffirming our position). The argument has no

possibility of succeeding here. Holmich is free, if he wishes, to seek review of this question

in the Supreme Court.

Counsel next considers whether Holmich could challenge the reasonableness of his

sentence, and particularly the district court’s failure to comment on his mitigating

argument that an associate was the true mastermind behind the fraudulent scheme. But

counsel correctly concludes that any such challenge would be doomed. In discussing the

sentencing factors enumerated in 18 U.S.C. § 3553(a), the district court emphasized the

seriousness of Holmich’s offense, id. § 3553(a)(2)(A), in particular the many veterans he

harmed (two of whom testified at the sentencing hearing) and the effect his conduct had

on small businesses with whom he contracted. The court also noted Holmich’s history and

characteristics, id. § 3553(a)(1), specifically his cooperation with the prosecution and the

absence of any criminal history. Holmich’s argument about his culpability relative to his

associate was undeveloped; he never submitted a sentencing memorandum, and his

counsel’s few comments at the hearing failed to specify how Holmich was less culpable or

why any lesser culpability merited a more lenient sentence. The court thoroughly explained

the sentence and meaningfully considered the § 3553(a) factors, and so the sentence is

procedurally reasonable even though the court passed over Holmich’s undeveloped

mitigating argument. See United States v. Vaughn

, 722 F.3d 918, 936–37 (7th Cir. 2013);

United States v. Paige

, 611 F.3d 397, 398 (7th Cir. 2010). For the same reason, we agree with

counsel that Holmich cannot point to anything in the record to rebut the presumption of

reasonableness we afford within

‐ guidelines sentences. See Rita v. United States

, 551 U.S.

338, 347 (2007); United States v. Smith

, 721 F.3d 904, 906 (7th Cir. 2013).

Finally, Holmich, citing Santobello v. New York

, 404 U.S. 257 (1971), asserts that the

government reneged on unspecified promises it made him in order to induce him to plead

guilty. But Holmich produces no evidence of any promises, and we find none in the record.

district court also had before it evidence of $400,000 of compensable losses that it did not

include in its restitution order. Thus, any error made in the restitution order ultimately

benefited Holmich. See Greenlaw v. United States

, 554 U.S. 237, 247–48 (2008) (plain

‐ error

doctrine should not be used to detriment of appealing party); In re Amy Unknown

, 701 F.3d

749, 774 (5th Cir. 2012) (en banc) (applying Greenlaw to affirm underinclusive restitution

order), cert. granted on unrelated question

, 133 S. Ct. 2886 (2013).No. 12

‐ 3792 Page 5

Counsel’s motion to withdraw is G RANTED

, and the appeal is D ISMISSED

.