In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1856

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT J. CANTRELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:07-cr-00044-RL-PRC-1—Rudy Lozano, Judge.

ARGUED MAY 24, 2010—DECIDED AUGUST 11, 2010

Before EASTERBROOK, Chief Judge, and POSNER and

EVANS, Circuit Judges.

EVANS, Circuit Judge. During his lifetime, which spans

almost 70 years, Robert Cantrell accomplished many

things. In a brief on this appeal, his attorney writes that

“Cantrell is an Indiana legend and hero.” The brief goes

on (for many pages) noting that Cantrell was a college

baseball and basketball star “feeding assists to Cazzie
2 No. 09-1856

Russell went on to become the first pick in the 1966 draft and

1

spent twelve seasons in the NBA. He was on the 1970

Knicks team that beat the Lakers in the NBA finals.

http://en.wikipedia.org/wiki/Cazzie_Russell (last visited July 6,

2010).

Russell” during Michigan’s 1964 Final Four run, a long- 1

time teacher, a decorated war veteran, a beloved

husband, father, and grandfather, a mentor to needy

students, and a well-known public servant in Indiana.

Unfortunately, during the past decade, Cantrell also

got into some serious trouble. Specifically, a jury

found that he committed honest services fraud, using

his position in public office to steer contracts to a third

party in exchange for kickbacks (a cut of the proceeds

from the contracts), in violation of 18 U.S.C. §§ 1341 and

1346. He also committed insurance fraud, deceptively

procuring coverage for two of his children, in violation

of 18 U.S.C. § 1341. And he filed false income tax

returns, failing to report the kickbacks, in violation of

26 U.S.C. § 7206(1). As punishment for his eleven counts

of conviction, Cantrell received concurrent sentences of

78 months’ imprisonment. The sentence was within the

guideline range for his convictions. He now appeals,

arguing primarily that his sentence was improper

because the district judge applied an incorrect guideline and failed to address his arguments for leniency.

Cantrell also preserved a challenge to his four convictions on the honest services fraud counts on the grounds

that 18 U.S.C. § 1346 is unconstitutionally vague. No challenge is lodged against the three insurance fraud or the

four tax counts under which he was convicted.
No. 09-1856 3

North Township is a unit of government (the executive is the 2

township trustee) covering the cities of Hammond, East Chicago, Whiting, Highland, and Munster. It is the second

largest township in the state and is responsible for poor

relief, among other things. North Township Trustee,

http://www.northtownshiptrustee.com (last visited July 6, 2010).

Although this is primarily a sentencing appeal, we

begin by briefly addressing Cantrell’s preserved argument

regarding his § 1346 conviction. While this case was

pending on appeal, the Supreme Court decided Skilling

v. United States, 561 U.S. ___, 2010 WL 2518587 (2010),

Black v. United States, 561 U.S. ___, 2010 WL 2518593 (2010),

and Weyhrauch v. United States, 561 U.S. ___, 2010 WL

2518696 (2010), all of which involved the honest services

statute. In Skilling, the most comprehensive of the three

opinions, the Court observed that “[t]he ‘vast majority’

of the honest-services cases involved offenders who, in

violation of a fiduciary duty, participated in bribery or

kickback schemes.” Skilling, 2010 WL 2518587, at *27.

Based on this observation and a desire to avoid “taking

a wrecking ball to a statute that can be salvaged through

a reasonable narrowing interpretation,” id. at *28 n.44,

the Court ultimately held that, “[i]nterpreted to encompass only bribery and kickback schemes, § 1346 is not

unconstitutionally vague.” Id. at *30.

The indictment charged Cantrell with using his position

as a public official of North Township of Lake County,

Indiana, to secure contracts for Addiction and Family 2

Care, Inc. (AFC), a counseling company owned by an

acquaintance, Nancy Fromm, in exchange for a share of
4 No. 09-1856

the proceeds from the contracts. By failing to fairly,

honestly, and candidly award contracts, Cantrell defrauded North Township and its citizens of their right

to his honest services. This was clearly a kickback

scheme, so § 1346—even as pared down by Skilling—

applies to Cantrell. As he presents no other challenge

to his convictions, they will not be disturbed.

Cantrell primarily raises two sentencing issues, which

involve the district judge’s application of U.S.S.G.

§ 2C1.1 and his consideration of Cantrell’s arguments

for leniency. Our review of the former is only for plain

error, as Cantrell failed to object to the guideline calculations at sentencing. United States v. Garrett, 528 F.3d

525, 527 (7th Cir. 2008). As a result, Cantrell must establish that the district judge committed error, that is plain,

and that affected his substantial rights. United States v.

Baretz, 411 F.3d 867, 875 (7th Cir. 2005).

Cantrell claims that the district judge should have

applied U.S.S.G. § 2B1.1, entitled, “Larceny, Embezzlement,

and Other Forms of Theft; . . .,” instead of U.S.S.G. § 2C1.1,

entitled, “Offering, Giving, Soliciting, or Receiving a

Bribe; . . . Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; . . . ,”

because his conduct was more akin to simple theft than

honest services fraud. He justifies his position almost

exclusively on our decision in United States v. Orsburn, 525

F.3d 543 (7th Cir. 2008). There, Teresa Orsburn—who

was appointed to keep records and write checks by

the township’s trustee, her husband, Michael—wrote

checks to her husband using erasable ink. After the
No. 09-1856 5

In arguing that his conduct did not involve kickbacks, Cantrell 3

trumpets the fact that the first contract between AFC and

North Township predated his employment with the latter.

This is immaterial, however, because the renewal contracts,

whose terms were engineered by Cantrell, postdated his hiring.

checks had been deposited and mailed back to the office,

Teresa replaced Michael’s name with that of a legitimate

payee. While Orsburn involved nothing more than embezzlement, we held that the defendants could be convicted under 18 U.S.C. § 1341 because the checks were

mailed. Id. at 545. But we concluded that applying

U.S.S.G. § 2C1.1 was erroneous because the defendants’

actual conduct did not include bribery or any closely

related offense. Id. at 546.

In contrast, and as we previously noted, Cantrell did not

just steal money from North Township. Rather, he used

his position at North Township to steer contracts and

renewals to a third party, AFC, which compensated

Cantrell with proceeds from the contracts. This is a 3

kickback scheme under 18 U.S.C. § 1346 and therefore

comes within the ambit of U.S.S.G. § 2C1.1. See id. (explaining that § 1346 was not necessary to the Orsburns’

conviction but rather “was devised to deal with people

who took cash from third parties (via bribes or kickbacks)”). 

Nor did Cantrell merely fail to disclose a conflicting

financial interest. Our conclusion here is supported by a

discussion in Skilling. There, the government attempted

to preserve the full breadth of the honest services
6 No. 09-1856

In McNally, the Court held that the scheme at issue did not 4

qualify as mail fraud because § 1341 was limited to the protection of property rights. Congress responded by enacting

§ 1346, which overruled McNally. See Skilling, 2010 WL

2518587, at *25.

statute by arguing that McNally v. United States, 483 U.S.

350 (1987), which spurred Congress to enact § 1346,4

primarily involved nondisclosure of a conflicting financial interest. The Skilling Court rejected that argument,

observing that McNally actually involved a “classic”

kickback scheme:

A public official, in exchange for routing Kentucky’s

insurance business through a middleman company,

arranged for that company to share its commissions

with entities in which the official held an interest.

This was no mere failure to disclose a conflict of

interest; rather, the official conspired with a third

party so that both would profit from wealth generated by public contracts.

Skilling, 2010 WL 2518587, at *28 (citations omitted). The

conduct here is analogous to the description of McNally.

Accordingly, we find no error in the application of

U.S.S.G. § 2C1.1.

Lastly, we turn to Cantrell’s complaint that the district

judge failed to consider his arguments for leniency at

sentencing. Whether appropriate sentencing procedures

were followed is a question of law subject to de novo

review. United States v. Mendoza, 510 F.3d 749, 754 (7th

Cir. 2007). Proper procedures include calculating the
No. 09-1856 7

guidelines range, analyzing the § 3553(a) factors, basing

the sentence on accurate facts, and explaining the reasoning. United States v. Omole, 523 F.3d 691, 697 (7th Cir.

2008).

Cantrell argues that the district judge failed to address

certain factors he cited in favor of a below-guideline

sentence—mainly, his age and decorated military career.

Cantrell’s argument regarding his age is curious, as

the district judge explicitly considered that factor:

I considered the guidelines in this case. I find it to be

fair. If anything, I thought of a higher sentence, and

I did not go to the higher sentence or deviate higher

because of your age. I did take that into consideration.

. . . I also considered before making this sentence

the life expectancy of individuals as given by the

[actuarial] tables.

The judge also mentioned Cantrell’s accomplishments,

noting that he “had a good career at the University of

Michigan,” “got [him]self a doctorate degree,” “move[d]

up in the school systems,” “[was] a fairly good daddy,”

and “helped individuals.” Although the judge did not

specifically reference Cantrell’s military career, this was

not required. See United States v. Paige, ___ F.3d ___, 2010

WL 2652455, at *1 (7th Cir. July 6, 2010) (collecting cases

supporting the proposition that “we regularly affirm

sentences where the district judge does not explicitly

mention each mitigation argument raised by the defendant”).

The district judge was required, however, to explain

why the sentence was appropriate in light of Cantrell’s
8 No. 09-1856

arguments. And that he did. The judge rejected Cantrell’s

argument that he was a good father noting that he put

his children in harm’s way by fraudulently procuring

health insurance on their behalf. The judge was also

bothered by the length of time (about six years) that

Cantrell was involved in criminal activity. And the

judge noted that Cantrell’s cut from AFC ($68,000) was

significant and could have been used by the township

to help the poor. Finally, the judge explained that

although Cantrell helped several individuals throughout his life, it appeared that, in many cases, he did so to

further his own interests. Thus, there is no evidence

that the district judge committed procedural error or

otherwise acted unreasonably in imposing a withinguideline sentence.

For these reasons, the judgment of the district court

is AFFIRMED.

8-11-10