# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 7, 2018

Decided December 12, 2018

Before

MICHAEL S. KANNE, Circuit Judge

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 17

‐ 2409

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

KIT C. KLEHM,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 14 CR 00708

‐ 1

Edmond E. Chang,

J udge

.

O R D E R

Kit Klehm pleaded guilty to wire fraud, see 18 U.S.C. § 1343, and was sentenced

to 57 months’ imprisonment and 3 years’ supervised release. He filed a notice of appeal,

but his appointed attorney contends that the appeal is frivolous and has moved to

withdraw under Anders v. California

, 368 U.S. 738 (1967). Klehm opposes counsel’s

motion. See Cir. R. 51(b). Counsel’s brief outlines the nature of the case and addresses

the potential issues that one might expect an appeal like this to involve. Because NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 2409 Page 2

counsel’s brief appears thorough, we limit our review to the topics she discusses, along

with the issues Klehm raises in response. See United States v. Bey

, 748 F.3d 774, 776

(7th Cir. 2014).

Counsel reports that Klehm does not wish to withdraw his guilty plea. Therefore,

she appropriately does not consider challenging the voluntariness of the plea or the

adequacy of the plea colloquy. See F ED

. R. C RIM

. P. 11; United States v. Knox

, 287 F.3d 667,

670–71 (7th Cir. 2002).

Counsel begins by assessing, and correctly dismissing as frivolous, whether

Klehm could challenge his sentence. First, counsel examines the criminal statute. Under

18 U.S.C. § 1343, imprisonment of up to 20 years, and supervised release of up to 3

years is authorized. Klehm’s 57

‐ month prison term and 3

‐ year period of supervised

release fall at or within the statutory limits for his crime. Therefore, no statutory

argument is feasible.

Counsel next examines the calculation of the Sentencing Guidelines range and

concludes that the district court correctly calculated the range of 57 to 71 months, based

on Klehm’s total offense level of 25 and criminal history category of I. She considers

three possible attacks. First, she asks whether the district court erred in imposing a

2

‐ level upward adjustment for using “sophisticated means” during the commission of

the crime, see U.S.S.G. § 2B1.1(b)(10), but we agree with counsel that this argument

would be pointless. The enhancement is appropriate “when the conduct shows a

greater level of planning or concealment than the typical fraud of its kind.” United States

v. DeMarco

, 784 F.3d 388, 397 (7th Cir. 2015) (citing United States v. Knox

, 624 F.3d 865,

871 (7th Cir. 2010)). Examples include the use of fictitious entities or offshore financial

accounts. § 2B1.1, app. n. 9(B). Klehm falsified many documents, used fake names and

email addresses, and directed the victim to wire money to fictitious corporate accounts

overseas. That is exactly the type of conduct that warrants an enhancement.

See United States v. Sheneman

, 682 F.3d 623, 632 (7th Cir. 2012) (applying enhancement

when defendants falsified loan documents); United States v. Allan

, 513 F.3d 712, 716

(7th Cir. 2008) (applying enhancement for using phony emails and fabricated

documents).

Second, counsel properly decides against arguing that the district court erred by

applying a 2

‐ level upward adjustment for obstructing justice. See U.S.S.G. § 3C1.1. The

enhancement applies when the defendant “willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with respect to theNo. 17

‐ 2409 Page 3

investigation, prosecution, or sentencing of the instant offense” or a “closely related

offense.” Id

. The district court found that Klehm committed more fraud while on bond

and submitted a “false and misleading” affidavit to persuade the court of the

transaction’s legitimacy. The district court did not expressly state that the new conduct

was a “closely related offense,” but both the new and original offenses have striking

similarities: In his new scheme, Klehm falsely claimed that he had contacts with

overseas manufacturers. He then fabricated fraudulent agreements with the

manufacturers to induce the victim to wire funds to cover the manufacturing costs.

Klehm and his associates later used those funds for personal expenses. Based on the

record, we agree with counsel that the proposed argument would be pointless.

Third and relatedly, counsel discusses whether the district court erred in denying

the downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 but

correctly concludes that such a challenge would be hopeless. In considering the facts

underlying the obstruction

‐ of

‐justice enhancement, the district court found that those

same facts weighed against finding that Klehm had accepted responsibility.

See United States v. Warren

, 454 F.3d 752, 763 (7th Cir. 2006). Only in extraordinary cases

does a defendant with an obstruction enhancement receive a downward adjustment for

acceptance of responsibility. United States v. Davis

, 442 F.3d 1003, 1009–10 (7th Cir.

2006). Klehm believes that his guilty plea, entered before he committed the additional

fraud, is an extraordinary circumstance. But the timing of a guilty plea alone does not

make a case extraordinary. United States v. Bennett

, 708 F.3d 879, 893 (7th Cir. 2013).

Klehm further argues that, based on his “substantial assistance” to the government’s

investigations of other, unrelated cases, he accepted responsibility. But judges have

“broad discretion” in weighing the statutory sentencing factors in 18 U.S.C. § 3553(a) as

well as the criteria in U.S.S.G. § 3E1.1(b) to assess whether the defendant accepted

responsibility. See United States v. Deberry

, 576 F.3d 708, 711 (7th Cir. 2009). We see no

reason to question the judge’s discretion here. He recognized that Klehm pleaded guilty

and cooperated with the government in unrelated cases but weighed those facts against

the government’s evidence that Klehm committed an additional crime while on bond.

With the Guidelines calculation to the side, counsel observes that Klehm also

could challenge the substantive reasonableness of his sentence but correctly adds that

this argument too would be futile. Because the sentence is within the Guidelines range,

we may presume that it is reasonable, see Rita v. United States

, 551 U.S. 338, 347 (2007),

and do, see United States v. Mykytiuk

, 415 F.3d 606, 608 (7th Cir. 2015). And we see

nothing in this record to rebut that presumption. While weighing the relevant factors

under 18 U.S.C. § 3553(a), the district judge noted that Klehm told “many, many lies”No. 17

‐ 2409 Page 4

over a “substantial period of time” and caused tremendous damage to his victim, a

small business owner. The judge further considered Klehm’s mitigating

circumstances—his mental health and substance abuse. The district court thus

adequately reviewed and weighed all of the relevant information.

Counsel also rightly declines to challenge the term of supervised release as

inadequately explained. This argument would be pointless because a district court has

discretion to order an appropriate term of release without providing an explanation for

it separate from the explanation given for the term of imprisonment. See United States

v. Bloch

, 825 F.3d 862, 869 (7th Cir. 2016). The judge here provided sufficient reasons for

the prison term, and those reasons also justify the supervised

‐ release term.

Finally, counsel considers whether the court abused its discretion by ordering

that Klehm pay interest on the restitution. An argument on these grounds would be

frivolous, however, because interest is mandatory for restitution that exceeds $2,500 if

not repaid within 15 days of the judgment. 18 U.S.C. § 3612(f)(1); see United States

v. Goode

, 342 F.3d 741, 744 (7th Cir. 2003). And Klehm was ordered to pay $568,144.

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.