*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. Ap.. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 25, 2007*

Decided August 3, 2007

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Nos. 06-3522 & 06-3896

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross-Appellant,

v.

DEBORAH AHMAD BEY,

Defendant-Appellant,

Cross-Appellee.

Appeals from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 04-CR-950-1

Wayne R. Andersen, 

Judge.

O R D E R

Deborah Ahmad Bey was convicted after a jury trial on seven counts of

making false statements in a bankruptcy proceeding. See 18 U.S.C. § 152(3). 

Although the guidelines imprisonment range was 33 to 41 months, the district court

sentenced her to only three months. Ahmad Bey challenges her convictions on

appeal, and the government cross-appeals, arguing that the three-month sentence

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
Nos. 06-3522 & 06-3896 Page 2

of imprisonment is unreasonably short. We affirm the convictions, but remand for

resentencing.

Ahmad Bey, a registered nurse and former Chicago police officer, filed for

bankruptcy in 1999 and again in 2003, attaching verified financial schedules to

each petition. Those filings were not truthful; Ahmad Bey failed to disclose that she

ran a company that rented low- and moderate-income housing in Chicago, and she

also understated her income, her assets in an assortment of bank accounts, and the

proceeds from the sale of property. These deceptions went undetected during the

bankruptcy proceedings, and although the bankruptcy court dismissed Ahmad Bey’s

1999 petition because the court disapproved of her reorganization plan, Ahmad Bey

obtained a discharge of debts totaling nearly $132,500 during her 2003 case.

Ahmad Bey was later indicted when her false statements came to light. She

represented herself at trial. Although the district court agreed with the probation

officer’s calculation of the imprisonment range, the court imposed just three

months’ imprisonment, three years of supervised release, $132,486 in restitution,

and $700 in special assessments.

On appeal Ahmad Bey first challenges the sufficiency of the evidence

because, she says, the government did not establish that she intentionally falsified

the filings. In her view, the evidence shows only that her attorneys were at fault for

the inaccuracies because, she maintains, they did not ask her for updated

information before submitting the filings. In challenging the sufficiency of the

evidence, Ahmad Bey faces the “heavy burden” of demonstrating that, viewing the

evidence in the light most favorable to the government, no rational trier of fact

could have found the elements of the crime beyond a reasonable doubt. United

States v. Wortman, No. 06-4168, 2007 WL 1651088, at * 3 (7th Cir. June 8, 2007);

United States v. Hendrix, 482 F.3d 962, 966 (7th Cir. 2007). When reviewing the

sufficiency of the evidence, we will not second-guess a jury’s credibility

determination. United States v. Radziszewski, 474 F.3d 480, 485 (7th Cir. 2007). 

Ahmad Bey has not identified insufficient evidence, but rather attacks only the

credibility of the government’s witnesses. The two lawyers who filed Ahmad Bey’s

bankruptcy petitions each testified that they ask their clients questions that would

have elicited the undisclosed information and that they verify the information with

their clients before submitting the filings to the bankruptcy court. Ahmad Bey

argues that the lawyers did not follow those procedures and that the lawyers’

testimony should be disregarded. She made the same argument at trial, but the

jury was not persuaded. We decline Ahmad Bey’s invitation to reassess the

credibility of the witnesses.
Nos. 06-3522 & 06-3896 Page 3

Ahmad Bey next argues that the district court should have suppressed

evidence acquired when federal agents questioned her. We understand her

argument (as did the district court) as contending that her statements were

obtained during an interrogation that required the investigators to first inform her

of her rights as required under Miranda v. Arizona, 384 U.S. 436 (1966). But a

suspect is entitled to Miranda warnings only if that suspect is in custody so that

her movements are restrained to a degree associated with a formal arrest. United

States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002). Ahmad Bey was not taken into

custody until after the interview, and therefore was not entitled to Miranda

warnings. Moreover, the government agreed not to submit to the jury any

statements that Ahmad Bey made at the interview and Ahmad Bey does not allege

that the government broke their agreement.

We can quickly dispose of Ahmad Bey’s remaining arguments. She argues

that the district court should not have rejected her claim of privilege and allowed

the government to call as witnesses the attorneys she hired to file her bankruptcy

petitions. But information provided to an attorney in anticipation of a bankruptcy

filing is not intended to be held in confidence and therefore is not privileged. United

States v. White, 970 F.2d 328, 334 (7th Cir. 1992); United States v. White, 950 F.2d

426, 430 (7th Cir. 1991); see also United States v. Frederick, 182 F.3d 496, 500 (7th

Cir. 1999) (holding that information furnished to preparer of tax return is not

privileged). Ahmad Bey also argues that the government knowingly presented false

evidence to the grand jury to obtain her indictment. She has no evidence of

misconduct, but even if she did, the jury’s guilty verdicts render harmless any

possible errors before the grand jury. United States v. Mechanik, 475 U.S. 66, 941-

42 (1986); United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2005). Finally,

Ahmad Bey contends that the criminal charges were barred by the doctrine of claim

preclusion because the bankruptcy court already discharged her debts in a prior

proceeding. But the claims raised in the bankruptcy proceedings were not identical

to those raised in the criminal case and, therefore, the discharge does not preclude a

subsequent criminal prosecution. United States v. Kunzman, 125 F.3d 1363, 1366

(7th Cir. 1997); United States v. Tatum, 943 F.2d 370, 382 (4th Cir. 1991).

Turning to the cross appeal, the government argues that the three-month

sentence imposed by the district court is unreasonably low. In assessing a

challenge to the sentence imposed by a district court, we ask whether the sentence

is supported by adequate reasons and is substantively reasonable. United States v.

Repking, 467 F.3d 1091, 1094 (7th Cir. 2006); United States v. Wallace, 548 F.3d

606, 609 (7th Cir. 2006). When the sentence imposed deviates from the guidelines

range, the explanation provided by the court must be proportional to the deviation. 

Wallace, 458 F.3d at 613. The sentencing court may not rely on a disagreement

with congressional policy reflected in the sentencing guidelines. United States v.
Nos. 06-3522 & 06-3896 Page 4

Goldberg, No. 07-1393, 2007 U.S. App. LEXIS 15232, at **14-15 (7th Cir. June 27,

2007); United States v. Gonzales, 462 F.3d 754, 755 (7th Cir. 2006).

Here, the district court, in part, based its sentencing determination on a

disagreement with the sentencing guidelines. The court stated that it disagrees

with the application of U.S.S.G. § 2B1.1(b)(8)(B), which requires a two-level upward

adjustment if an offense covered by § 2B1.1 involves bankruptcy fraud. In the

court’s view, the adjustment is not warranted because fraudulent conduct “is the

essence of” a violation of § 152(3). So it is, but § 2B1.1 covers a vast array of fraud

and property crimes, see U.S.S.G. § 2B1.1 intro. cmt. (listing statutes to which

§ 2B1.1 applies), and the point of subsection (b)(8)(B) is to tailor the offense level to

one crime within that array, bankruptcy fraud. See U.S.S.G. § 2B1.1 bkgd. cmt

(noting that “most fraud statutes cover a broad range of conduct with extreme

variations in severity,” and therefore § 2B1.1 is designed to account for

characteristics of specific offense). Rather than disagreeing with a congressional

policy, the sentencing court must impose a sentence based on characteristics found

in the particular case. See Goldberg, No. 07-1393, 2007 U.S. App. LEXIS 15232, at

*14-15; Wallace, 458 F.3d at 611. 

The district court also determined that the guidelines sentence seemed

disproportionally high compared to other cases that the court had seen. While a

sentencing court may consider under 18 U.S.C. § 3553(a)(6) whether a sentence

would create an unwarranted disparity among similar defendants, “a sentencing

difference is not a forbidden ‘disparity’ if it is justified by legitimate considerations.” 

United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (emphasis in original). 

A difference between sentences that results only because of differences in proper

guidelines calculations is not unwarranted under § 3553(a)(6). United States v.

Duncan, 479 F.3d 924, 929 (7th Cir. 2007); Boscarino, 437 F.3d at 638. Here the

district court did not indicate how the disparity it noted between sentences in prior

unrelated cases was “unwarranted,” or whether those other cases involved

“defendants with similar records who have been found guilty of similar conduct.” 

18 U.S.C. § 3553(a)(6); see Duncan, 479 F.3d at 929.

The district court, indeed, noted a number of factors on which it relied in

deciding to impose a sentence far below the guidelines range, but as we have

explained, some of those factors were inappropriate. The court’s reliance on these

inappropriate factors led it to impose an unreasonably low sentence. Therefore,

Ahmad Bey’s convictions are AFFIRMED, but the sentences are VACATED, and the

case is REMANDED for resentencing.