United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 17, 2007

Decided January 18, 2007

Before

Hon. WILLIAM J. BAUER , Circuit Judge

 Hon. KENNETH F. RIPPLE, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

No. 06-2926

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTHUR VANCE,

Defendant-Appellant.

Appeal from the United States 

District Court for the Western 

District of Wisconsin

No. 06-CR-017-S-01

John C. Shabaz,

Judge.

O R D E R

Arthur Vance pleaded guilty to making a false statement to a financial

institution, see 18 U.S.C. § 1014, and was sentenced within the guidelines range to

15 months’ imprisonment and three years’ supervised release. He was also ordered

to pay $38,166.84 in restitution. Vance filed a notice of appeal, but his appointed

counsel moves to withdraw because he cannot discern a nonfrivolous basis for the

appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We invited Vance to

respond to counsel’s submission, see Cir. Rule 51(b), but he has not. We limit our

review to the potential issues identified in counsel’s facially adequate supporting

brief. 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NONPRECEDENTIAL DISPOSITION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. 32.1
No. 06-2926 Page 2

Vance misrepresented his social security number and birth date to obtain a

$7,000 loan from the Dane County Credit Union in September 1999. He previously

had filed for bankruptcy, so the misrepresentations influenced the credit union’s

lending decision. Vance also used the same fictitious social security number and

birth date to obtain a car loan for $27,300 from State Capitol Credit Union in

December 1998, a credit card with a $10,000 limit from State Capitol in January

1999, and a credit card with a $10,000 limit from Dane County Credit Union in

January 2000. Only the fraud involving the $7,000 loan is alleged in the count of

conviction, but at sentencing the district court concluded that the other three

transactions were relevant conduct because the modus operandi, i.e., using the

same phony social security number and birth date to obtain credit, was identical,

see U.S.S.G. § 1B1.3(a)(2), cmt. n.9(B). 

Vance does not want his guilty plea set aside, so counsel properly omits from

his Anders submission any discussion of the voluntariness of the plea or the

adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th

Cir. 2002). Counsel instead considers whether Vance could present a nonfrivolous

argument that the district court miscalculated the amount of loss in applying the

sentencing guidelines, or that the court imposed a prison term that is unreasonable. 

Counsel also evaluates a potential argument about the amount of restitution.

As to the amount of loss, counsel first considers but rejects an argument that

the district court erred by counting as relevant conduct the two transactions at

State Capitol Credit Union. For offenses where grouping of multiple counts would

be required—which is the case with violations of § 1014, see U.S.S.G.

§ 3D1.2—relevant conduct includes other transactions “that were part of the same

course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.

§ 1B1.3(a)(2) & cmt. nn.9(A), 9(B). Here, the district court concluded that the State

Capitol transactions met this standard because Vance had employed the same

modus operandi—he presented the same fictitious social security number and birth

date on all four occasions—to obtain credit relatively close in time to obtaining the

$7,000 loan at Dane County Credit Union. We agree with counsel that a challenge

to the district court’s conclusion would be frivolous. See United States v. Ojomo, 332

F.3d 485, 490 (7th Cir. 2003) (upholding sentencing court’s finding that two

additional student-loan applications completed using stolen identifying information

were relevant conduct to four other student-loan applications underlying

defendant’s conviction for mail fraud); United States v. Lane, 323 F.3d 568, 591 (7th

Cir. 2003) (upholding sentencing court’s finding that identical misrepresentations

made to second lender a year after conduct underlying § 1014 conviction was

relevant conduct to that conviction); United States v. Leonard, 289 F.3d 984, 988-89

(7th Cir. 2002) (upholding finding that fraudulent tax returns defendant prepared

for others using forged or altered W-2 forms were relevant conduct to her conviction

for making false returns on her own behalf).
No. 06-2926 Page 3

Counsel further concludes, in evaluating potential arguments about the loss

amount, that it would be frivolous for Vance to contend that the district court erred

by counting the face value of the car loan at State Capitol Credit Union instead of

the actual loss on that loan. We agree. Although the actual loss resulting from

Vance’s four fraudulent transactions was $38,166.84, the guidelines instruct that

intended loss must be used if it is greater, see U.S.S.G. § 2B1.1(b)(1), cmt. n.3(A),

and in this case the district court calculated an intended loss of $57,217.07. This

figure includes the $27,300 face value of the car loan from State Capitol, which

should have been reduced by the value of the car that secured the loan, see U.S.S.G.

§ 2B1.1, cmt. n.3(E)(ii); Lane, 323 F.3d at 590 (noting that intended loss should be

fixed at amount of loan less value of collateral pledged to secure loan); United States

v. Downs, 123 F.3d 637, 642-44 (7th Cir. 1997) (interpreting U.S.S.G. § 2F1.1 (now

§ 2B1.1) and concluding that value of collateral must be deducted from loan amount

to determine loss). We could not determine the proper figure for intended loss

based on the present record, yet it is readily apparent that the court’s error could

not have affected Vance’s imprisonment range because the overstatement of the loss

amount had no impact on his total offense level. The district court added six levels

using the erroneously calculated intended loss, see U.S.S.G. § 2B1.1(b)(1)(D)

(providing six-level increase for losses greater than $30,000 but less than $70,000),

but the actual loss of $38,166.84 is undisputed, and if the court had used that

figure, the same six-level increase would have resulted, see id. Thus, the error was

harmless. See United States v. Milquette, 214 F.3d 859, 864 n.2 (7th Cir. 2000)

(explaining that error in calculating criminal history score was harmless where it

did not affect criminal history category); United States v. Newman, 144 F.3d 531,

543-44 (7th Cir. 1998) (explaining that guidelines error is harmless if it does not

affect sentence). 

Counsel next considers challenging the amount of restitution but concludes

that any argument would be frivolous because the amount the district court ordered

Vance to pay is correct. Vance promised in his plea agreement to pay restitution

“for all losses relating to the offense of conviction and all losses covered by the same

course of conduct or common scheme or plan as the offense of conviction.” The court

properly found that the fraud committed against both lenders was part of the same

course of conduct and calculated the restitution amount using the undisputed

actual losses relating to those offenses, so Vance cannot present a nonfrivolous

argument that the restitution amount was improper.

Finally, counsel considers whether Vance could challenge the reasonableness

of his prison sentence. We agree with counsel that such an argument would be

frivolous. Vance’s prison term falls within the properly calculated guidelines range

and is therefore presumed reasonable. See United States v. Gama-Gonzalez, 469

F.3d 1109, 1110 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005). Although the Supreme Court recently granted certiorari to consider
No. 06-2926 Page 4

whether it is consistent with United States v. Booker, 543 U.S. 220 (2005) to accord

a presumption of reasonableness to a sentence within the guidelines range, see

United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert.

granted, 75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754), we would find Vance’s

sentence reasonable even without the presumption. Counsel has not identified any

factors within 18 U.S.C. § 3553(a) that would compel a lower sentence.

Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is

DISMISSED.