In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1540

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL J. BRISSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 04 CR 50021—Philip G. Reinhard, Judge.

____________

ARGUED APRIL 4, 2006—DECIDED JUNE 2, 2006

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge. In late 2000, Michael Brisson

decided to buy a hotel in Bloomington, Illinois. When it

came time to make the down payment, Brisson didn’t have

the $100,000 that was due. So he embarked on a series of

check-kiting transactions, causing a loss to one of his banks

of $99,938.73.

But this was only the start of the brief but ambitious

foray into financial crime which Brisson has admitted. In

February 2001, he applied for a $3.5 million loan from

another institution, Busey Bank, to pay for and renovate

the hotel. Brisson misrepresented his assets, net worth, and

personal stake in the venture and provided mislead-
2 No. 05-1540

ing profit and loss statements from the hotel. Although

he had agreed to provide the bank with a security interest in all the hotel’s room receipts, Brisson diverted more

than $500,000 of these monies to a different account and

used more than $380,000 to pay his personal expenses.

This, in turn, caused large shortages in the hotel’s operating revenue, which Brisson covered by retaining his employees’ federal income and FICA taxes—a total of

$239,472—rather than paying them over to the IRS. He also

submitted false construction loan draw requests to Busey

Bank’s escrow agent.

Brisson’s career as a hotelier came to an end in June

2002, when the bank figured out what was happening with

the hotel’s room receipts, foreclosed on its loan, and removed Brisson from the executive offices. The bank’s loss

from Brisson’s fraud totaled at least $492,843.

But Brisson still was not done. Having lost his source

of income and by his own admission desperate for money,

he filed fraudulent tax returns for 2001 and 2002, claiming

total refunds of $163,686. The claims were based on taxes

withheld from Brisson’s hotel salary—taxes which Brisson

had, of course, never actually sent to the IRS.

Brisson ultimately pled guilty to one count each of bank

fraud, submitting a false claim for an income tax refund,

and failing to pay over employment taxes to the IRS. He

was sentenced to a term of 30 months. In this appeal, he

challenges the manner in which the district court (Hon.

Philip G. Reinhard) grouped the three counts to calculate

the offense level under the United States Sentencing

Guidelines. He also argues that his sentence was unreasonable.

We deal first with the grouping issue, reviewing the

district court’s legal interpretation of the guidelines

de novo. United States v. Jackson, 410 F.3d 939, 941 (7th

Cir. 2005). In the plea agreement, Brisson and the government proposed that counts 1 and 2 be grouped together,
No. 05-1540 3

since they both involved financial fraud. See U.S.S.G.

§ 2B1.1. Brisson also argued, over the government’s objection—and reiterates the argument on appeal—that count 3

should have been grouped with the first two, since all three

counts involved “economic offenses,” and all three arose

from “the same economic hardship which found its genesis

during Defendant’s running of the hotel . . . .”

The district court took a different approach. The government had charged count 2 under 18 U.S.C. § 287, a general

statute covering fraudulent claims against the United

States. Judge Reinhard determined, however, that since the

conduct involved filing a false claim for a tax refund,

Brisson’s sentence should be governed by the tax guideline,

see U.S.S.G. § 2T1.1, and should be calculated using the tax

loss table provided by guideline § 2T4.1. Therefore, Judge

Reinhard grouped the count 2 tax fraud offense together

with the count 3 offense of failing to pay over employment

taxes to the IRS. He further determined that the two tax

offenses should not be grouped with count 1, since the count

1 conduct involved fraud loss to a separate party, namely

Busey Bank, and was covered by § 2B1.1. In the end, this

gave Brisson a 2-level grouping adjustment and a combined

offense level of 22.

The record reflects that Judge Reinhard devoted considerable thought and research to the grouping issue, and

we find his conclusions to be sound. While Appendix A of

the guidelines indicates that guideline § 2B1.1 applies to

violations of 18 U.S.C. § 287, a cross-reference instructs

that if the count of conviction establishes an offense

specifically covered by another guideline, that other

guideline should be applied. U.S.S.G. § 2B1.1(c)(3). Judge

Reinhard determined that Brisson’s attempt to claim tax

refunds to which he was not entitled caused a different type

of loss than the fraud against his bank. Two other circuits

have endorsed applying the tax guidelines rather than the

fraud guidelines to false claims for tax refunds, see United
4 No. 05-1540

States v. Barnes, 324 F.3d 135, 139-40 (3rd Cir. 2003);

United States v. Aragbaye, 234 F.3d 1101, 1105-06 (9th Cir.

2000), and we see no reason to disagree with them.

Brisson’s “offense conduct was at heart a scheme to file

fraudulent tax returns and thus could be considered on par

with tax fraud.” Aragbaye, 234 F.3d at 1105 (citation and

internal quotation marks omitted).

Furthermore, Judge Reinhard did not err in refusing

to group the two tax offenses together with the bank fraud

offense and thereby give Brisson a lower offense level.

Grouping is appropriate when different counts involve

substantially the same harm. U.S.S.G. § 3D1.2. Brisson

notes that subsection 3D1.2(d) allows for grouping of

offenses covered by guidelines §§ 2B1.1 and 2T1.1. We have

joined most other courts in holding, however, that “there is

no automatic grouping of counts [under subsection

3D1.2(d)] simply because those counts are on the ‘are to be

grouped’ list.” United States v. Chavin, 316 F.3d 666, 673

(7th Cir. 2002) (quoting United States v. Williams, 154 F.3d

655, 657 (6th Cir. 1998), cert. denied, 525 U.S. 1113 (1999)).

Rather, offenses may be grouped if they are “of the same

general type and otherwise meet the criteria for grouping

under [subsection d].” Id. at 675 (quoting U.S.S.G. § 3D1.2

cmt. n. 6).

That is not the case here. There was no necessary connection between Brisson’s fraud on his bank and his bilking of

the government. Brisson argues his three counts should go

together because they were all “economic offenses arising

out of the failed ownership of the hotel.” But that is both too

high a level of generality and a disingenuous spin on the

facts. Brisson’s false tax claims were filed after he lost the

hotel and was desperate for money. But his diversion of the

hotel’s room receipts in violation of his bank’s security

agreement helped bring about the failure of his ownership;

it did not “aris[e] out of” that failure. Moreover, Brisson’s

conduct involved different victims, see U.S.S.G. § 3D1.2(a)-
No. 05-1540 5

(b), and did not involve conduct that was treated as a

specific offense characteristic for the guidelines calculation

for another count, see U.S.S.G. § 3D1.2(c). In short, the

bank fraud and tax fraud did not represent “substantially

the same harm,” U.S.S.G. § 3D1.2, so Judge Reinhard did

not err in refusing to group them.

Finally, Brisson disputes the reasonableness of his 30-

month sentence, which checked in at the bottom of the

advisory guidelines range. (He suggests instead “a minimal

sentence in the county jail” or work-release coupled with

home monitoring.) Judge Reinhard wisely rejected that sort

of tap-on-the-wrist conclusion to this case.

A sentence that is properly calculated under the guidelines is entitled to a presumption of reasonableness which

may be rebutted by reference to the sentencing factors set

forth in 18 U.S.C. § 3553(a). United States v. Mykytiuk, 415

F.3d 606, 608 (7th Cir. 2005). Appellate review is, as we

have often noted, “deferential.” Id.

In urging a light sentence, Brisson cites the “profound

negative impact on his family needs and obligations”; his

“conversion to Christianity” and the effect his sentence will

have on his ability to take up a “likely offer for a

$200,000.00 per year salary as a business consultant” at his

church. A princely sum, we assume that would promote his

ability to pay restitution. Lastly, in light of the § 3553(a)

factors bearing on deterrence and promoting respect for the

law, he makes the curious argument that prison sentences

for “economic offenses” such as his do not impede others

who are tempted to engage in similar deeds. We beg to

differ. Who knows how many more “economic offenses”

would be committed if the tempted knew that

the punishment, if caught, would be little more than

minimal? We reject the claim.

The record shows that Judge Reinhard carefully considered Brisson’s arguments and properly rejected them. And
6 No. 05-1540

of course Brisson is hardly the first defendant to claim a

religious conversion or to find that his punishment imposes

hardship on his family. As for his future as a business

consultant, we’re not sure what it is about his recent

achievements that would make someone want to pay him

$200,000 to impress his wisdom on others. Yet, if that is the

case, he can only hope that the opportunity will stay warm

while he’s on ice.

The sentence imposed by the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-2-06