# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 22, 2011 *

Decided November 22, 2011

Before

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

Nos. 10

‐ 2679 & 10

‐ 3108

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

KYLE KIMOTO,

Defendant

‐ Appellant

. Appeals from the United States District

Court for the Southern District of Illinois.

No. 3:07

‐ CR

‐ 30089

‐ 001

‐ MJR

Michael J. Reagan,

Judge

.

O R D E R

Kyle Kimoto engaged in a fraudulent telemarketing scheme through his wholly

owned company, Assail, Inc., by deceiving consumers with poor credit into believing that

they would receive a preapproved Visa or MasterCard credit card if they paid a one

‐ time

processing fee of $159. But instead of a credit card, Kimoto’s marks received an offer to

apply for a stored

‐ value debit card. Some of them completed the application and paid

Assail an additional fee to obtain the debit card, and others did not. A grand jury charged NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and records, we have concluded that oral argument is

unnecessary. Thus these appeals are submitted on the briefs and records. See F ED

. R. A PP

. P.

34(a)(2)(C).Nos. 10

‐ 2679 & 10

‐ 3108 Page 2

Kimoto with conspiracy to commit mail and wire fraud plus 13 substantive counts. See 18

U.S.C. §§ 371, 1341, 1343. A jury found him guilty on all counts. The district court sentenced

Kimoto to 25 months in prison on each count, to be served consecutively, for a total of 350

months.

We affirmed Kimoto’s convictions on direct appeal, rejecting his arguments that the

evidence was insufficient to convict him and that the government failed to turn over

exculpatory evidence. But we ordered a “very limited remand” for the district court to

reconsider a single issue: whether the number of victims exceeds 250, as is necessary to

sustain the 6

‐ level upward adjustment imposed by the court under U.S.S.G. § 2B1.1(b)(2)(C).

United States v. Kimoto

, 588 F.3d 464 (7th Cir. 2009). The district court had assumed that

anyone who gave money to Assail in response to Kimoto’s solicitations—over 500,000

people—counts as a victim, whether or not they understood that Kimoto actually was

pedaling debit cards for their cash. Id. at 494, 496. We concluded that under § 2B1.1(b)(2)(C)

the list of victims includes only those who incurred part of the actual, rather than intended,

loss, and thus persons who were solicited for a “credit card” but parted with their money

knowing that Kimoto really was marketing debit cards cannot be counted as victims. Id

. at

496

. Accordingly, we remanded for a “more definite calculation” of the number of victims

for purposes of § 2B1.1(b)(2)(C). Id. at 497.

At the hearing on remand, Kimoto sought to raise issues beyond the scope of our

mandate, but the district court properly declined to consider those issues. After reviewing

the evidence, including more than 400 complaints to the Federal Trade Commission from

consumers who had paid money to Kimoto, the court determined that well over 250 persons

suffered an actual loss. In fact, the court noted, a coconspirator had testified at trial that

Kimoto himself estimated during the ongoing fraud that only ten percent of the half

‐ million

consumers who shelled out $159 understood they were getting, at most, a debit card. On

that basis, the court let stand the 6

‐ level increase and corresponding 350 months’

imprisonment.

Kimoto has appealed again, and we have allowed him to proceed pro se. As we

interpret his brief, Kimoto argues that his convictions should be reversed on the grounds

that prosecutions for consumer fraud are solely the province of state government and that

the mail

‐ and wire

‐ fraud statutes are unconstitutionally vague. He also argues, relying on

Apprendi v. New Jersey

, 530 U.S. 466 (2000), that the district court lacked authority to increase

his offense level based on the amount of loss or number of victims, see U.S.S.G. § 2B1.1(b)(1),

(2), since these factors were not alleged in the indictment or decided by the jury beyond a

reasonable doubt.

None of these contentions is even arguable. See United States v. Joshua

, 648 F.3d 547,

552–53 (7th Cir. 2011); United States v. Owens, 441 F.3d 486, 490 (7th Cir. 2006); United StatesNos. 10

‐ 2679 & 10

‐ 3108 Page 3

v. Hausmann

, 345 F.3d 952, 958–59 (7th Cir. 2003); United States v. Crosgrove

, 637 F.3d 646, 666

(6th Cir. 2011). More importantly, all of the matters discussed in Kimoto’s brief could have

been raised in his first appeal and thus are beyond the scope of this appeal. See United States

v. Swanson

, 483 F.3d 509, 514–15 (7th Cir. 2007) ; United States v. Husband

, 312 F.3d 247,

250–51 (7th Cir. 2002); United States v. Parker

, 101 F.3d 527, 528 (7th Cir. 1996). We

emphasized that our remand was “confined to the calculation of the number of victims for

purposes of § 2B1.1(b)(2)(C)” and that “no other aspects of Mr. Kimoto’s sentencing should

be revisited.” Kimoto

, 588 F.3d at 497. The present appeal is limited, then, to arguments

arising from the district court’s further analysis of the number of victims. See

, e.g.

, Parker

,

101 F.3d at 528. As the government notes, Kimoto does not challenge the court’s finding that

the total easily exceeds 250. And even if he had, this factual determination is not clearly

erroneous, see United States v. Locke

, 643 F.3d 235, 243–44 (7th Cir. 2011), given the evidence

before the district court. Accordingly, the one issue left unanswered in our previous

decision has now been resolved, and we thus uphold the sentence imposed by the district

court.

One housekeeping matter remains. Kimoto filed a second notice of appeal by

mistake. After the district court had ruled on the number of victims and Kimoto had filed a

notice of appeal from that decision, he filed a motion in the district court asking that his

lawyer be discharged and he be permitted to represent himself on appeal. That motion

should have been directed to this court in the first instance, so the district court denied it,

prompting Kimoto to file his second notice of appeal. Kimoto then redirected to us his

motion to proceed pro se, which we granted. His second appeal was an unnecessary step,

and is dismissed.

The judgment in appeal no. 10

‐ 2679 is AFFIRMED. Appeal no. 10

‐ 3108 is

DISMISSED.