United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 20, 2007

Decided March 21, 2007

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3949

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEMETRIUS BARREN,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division

No. 1:02-CR-00752

Joan B. Gottschall, 

Judge.

O R D E R

Demetrius Barren conducted a real estate scam in Chicago, where he bought

approximately 48 dilapidated houses, hired appraisers to inflate their value, and

resold them at much higher prices. Barren also falsified employment records and

earning statements to help buyers purchase houses despite insufficient income, and

forged at least one buyer’s signature on a real estate contract. The FBI caught on to

Barren’s scheme, and he was indicted on several counts of mail and wire fraud. See

18 U.S.C. §§ 1341, 1343. At trial complicit appraisers, mortgage brokers, and home

buyers testified about their involvement in the scheme. In 2005 a jury found

Barren guilty. After the verdicts, he moved for a judgment of acquittal or,

alternatively, a new trial, but both motions were denied. Barren was sentenced to a

total of 51 months’ imprisonment and ordered to pay $860,983 in restitution. He

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 05-3949 Page 2

filed a notice of appeal, but his newly appointed appellate counsel moves to

withdraw under Anders v. California, 386 U.S. 738 (1967), because he can not

discern any nonfrivolous arguments to pursue. Barren filed a response opposing his

attorney's motion. See Cir. R. 51(b). Our review is limited to the potential issues

identified in counsel's facially adequate brief and in Barren's response. See United

States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

Counsel first considers whether Barren might argue that the district court

improperly overruled the numerous objections Barren made during trial, in

particular during the government’s closing argument. We review rulings on

objections to evidence and argument for an abuse of discretion. See United States v.

Green, 258 F.3d 683, 693 (7th Cir. 2001); United States v. Ward, 211 F.3d 356, 365

(7th Cir. 2000). After reviewing the trial transcript, we agree with counsel that any

argument about the unsuccessful objections would be frivolous. The majority of

Barren’s objections challenged the government for asking leading questions during

its direct examination of witnesses, but in many cases the government was setting

forth background information, for example, confirming that the witness worked for

Barren. See Fed. R. Evid. 611(c) (permitting leading questions on direct

examination to develop witness’s testimony); United States v. O’Brien, 618 F.2d

1234, 1242 (7th Cir. 1980) (discussing Rule 611(c)). Barren also objected to portions

of the government’s closing argument, but could not explain the grounds for his

challenges. We therefore agree with counsel that arguments about the district

court’s rulings on objections would be frivolous.

Counsel next questions whether the district court erred in denying Barren’s

motion for a judgment of acquittal after the jury’s verdict. See Fed. R. Crim. P.

29(c). We review the denial of such motions de novo, but will reverse only if the

record is devoid of evidence from which a rational jury could find the defendant

guilty beyond a reasonable doubt. United States v. Alhalabi, 443 F.3d 605, 613 (7th

Cir. 2006). Given the incriminating testimony of the many participants in the

scheme, along with the falsified earnings and employment records Barren created

for home buyers, we agree with counsel that an argument concerning the motion for

a judgment of acquittal would be frivolous.

Counsel next considers challenging the guidelines loss calculation. A district

court’s finding on the amount of loss in calculating the guidelines range is reviewed

for clear error. See United States v. Al-Shahin, 474 F.3d 941, 950 (7th Cir. 2007). 

To successfully challenge a district court’s loss calculation, a defendant must show

that the court’s determination was “‘not only inaccurate, but outside the realm of

permissible computations.’” United States v. Peterson-Knox, 471 F.3d 816, 822 (7th

Cir. 2006) (quoting United States v. Lopez, 222 F.23d 428, 437 (7th Cir. 2000)). In

an addendum to the presentence report, the probation officer calculated a loss

amount of $860,983 by adding the figures reported by HomEq Mortgage Loan
No. 05-3949 Page 3

Servicing, Bank of America, and Litton Loan Services. The probation officer stated

that mortgage companies that lent money for an additional 12 properties did not

provide loss information, so the loss total was undoubtedly understated. Given the

information in the presentence report, we could not conclude that the loss

calculation was outside the realm of permissible computations, and agree with

counsel that any argument regarding the loss finding would be frivolous. 

Counsel also considers challenging the district court’s restitution award. 

Barren did not object to the restitution amount during sentencing, so our review

would be for plain error. See United States v. Alburay, 415 F.3d 782, 789 (7th Cir.

2005). To calculate the restitution amount, the district court must determine the

loss caused by the crime, minus the value of any returned property. See United

States v. Leahy, 464 F.3d 773, 793 (7th Cir. 2006). We will disturb a restitution

order only if the district court relied upon inappropriate factors when it exercised

its discretion, or if it failed to exercise any discretion at all. See United States v.

Havens, 424 F.3d 535, 538 (7th Cir. 2005). In his Anders brief, counsel incorrectly

assumes that the loss calculations for purposes of the guidelines and for restitution

are necessarily equal, but restitution must be based on actual losses to specific

victims. See United States v. Seward, 272 F.3d 831, 839 (7th Cir. 2001); United

States v. Behrman, 235 F.3d 1049, 1052 (7th Cir. 2000); United States v. Minneman,

143 F.3d 274, 284-85 (7th Cir. 1998). Nevertheless, we could not find plain error on

this record. The loss amounts reported by the three restitution recipients roughly

approximate the total of their loans less the amounts that Barren paid for the

houses securing the loans, so it appears that the restitution that was awarded is

tied to actual losses. We therefore agree with counsel that any such challenges

would be frivolous.

Counsel last questions whether Barren might challenge the overall prison

sentence imposed. We review sentences imposed by the district court for

reasonableness. United States v. Acosta, 474 F.3d 999, 1001 (7th Cir. 2007). After

determining Barren’s total offense level to be 23 and his criminal history to be

Category Two, the district court sentenced him to 51 months’ imprisonment, the low

end of the advisory guidelines range. We agree with counsel that nothing in the

record supports a lower sentence under 18 U.S.C. § 3553, thus any potential

arguments about Barren’s sentence would be frivolous. 

 

In his Rule 51(b) response, Barren first argues that 18 U.S.C. § 3231 was

never enacted, and thus the district court had no subject-matter jurisdiction in this

case. This argument is frivolous. See Derleth v. United States, No. 5:05-cv-205,

2006 WL 1804618, at *2-5 (S.D. Tex. June 27, 2006). Barren also contends that he

should not have been convicted of wire fraud under 18 U.S.C. § 1343 because, he

argues, his crimes did not involve interstate commerce. Section 1343 provides that,

“whoever, having devised . . . any scheme or artifice to defraud . . . transmits or
No. 05-3949 Page 4

causes to be transmitted by means of wire, radio, or television communication in

interstate or foreign commerce, any writings, signs, signals, pictures, or sounds . . .

shall be fined . . . or imprisoned not more than 20 years, or both.” 18 U.S.C. § 1343. 

All four of the § 1343 counts involved communications—wire transfers or

faxes—between Chicago and locations out of state, so Barren’s execution of the

scheme satisfied the commerce element of the statute. See United States v. O'Brien,

119 F.3d 523, 532 (7th Cir. 1997). Therefore, this argument is also frivolous.

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

DISMISSED.