### In the



# United States Court of Appeals

For the Seventh Circuit

No. 12

‐ 2101

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

H AROLD N. R OSEN

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:11

‐ cr

‐ 30017

‐ MJR

‐ 1

— Michael J. Reagan

, Judge.

A RGUED O CTOBER 22, 2012

— D ECIDED A UGUST 14, 2013

Before B AUER and R OVNER

, Circuit Judges, and R ANDA

, *

District Judge.

B AUER

, Circuit Judge. On October 2, 2011, Harold N. Rosen

pleaded guilty to seven counts of wire fraud for his perpetra

‐

tion of a fairly elaborate fraud scheme, centered around the

* Of the United States District Court for the Eastern District of Wisconsin,

sitting by designation.2 No. 12

‐ 2101

development of an affordable housing project that was to be

built in East St. Louis, Illinois. Rosen now appeals the district

court’s calculation of the loss amount, the determination that

Rosen was an organizer or leader of criminal activity, and the

reasonableness of his sentence. We affirm.

I. BACKGROUND

Rosen, the owner of Kully Construction, LLC, submitted a

development plan to the city of East St. Louis (“the City”) to

develop an affordable housing project known as the Bowman

Estates. The project was to be constructed through a combina

‐

tion of private and public investment and was to be developed

by Kully Construction and Rosen. The project’s plans called for

a $5,624,050 development, approved by the City council, that

allowed for the contribution of $800,000 of federal grant funds,

$1,124,810 in Tax Increment Financing (“TIF”), and a contribu

‐

tion of $3,699,240 in private funding by Rosen and Kully

Construction, as a condition of receiving the public financing

funds.

To obtain this contract, Rosen lied at nearly every turn.

First, Rosen submitted a development plan to the City. The

proposal was almost entirely fictitious. The plan falsely stated

that Kully Construction had over twenty years of experience in

completing successful housing projects. The plan named Tracy

Hawkins as CEO of Kully Construction and lauded her more

than ten years’ of housing development experience; in reality,

Hawkins was a secretary and part

‐ time hairdresser. The plan

falsely asserted that Rosen was a seasoned project manager

with over twenty years of experience on major housing

projects; in truth, he had never worked as a developer.No. 12

‐ 2101 3

There was even a news article published in the St. Louis

Post Dispatch on March 17, 2006, supporting Rosen’s business

proposal and affirming his credentials. The article recounted

how Rosen obtained a forty

‐ million

‐ dollar contract with the

Philippine Government to develop a trash

‐ to

‐ energy power

plant. Rosen claimed he became involved in the business of

converting trash into usable power as a result of his deep

‐

rooted sympathy for the children exposed to garbage dumps

in the Philippines. The article also noted that Rosen was

awarded a twenty

‐ five year contract, at the conclusion of

which he would turn the plant over to the Philippine Govern

‐

ment. Rosen now admits that he had no such investment in the

Philippines and that the entire story was concocted in hopes of

bolstering his reputation as a successful developer.

A. Scheme to Substitute Prefab Modular Housing for

New Construction

Duped by his ploy, the City contracted with Rosen for the

construction of a thirty

‐ two unit housing project. After meeting

with a consultant on July 1, 2008, however, it was brought to

Rosen’s attention that his project was underfunded by approxi

‐ mately $2.7 million dollars because the projected rental income

was inadequate to support the anticipated expenses. Rosen

concealed his under funding problem from the City, and

instead addressed the issue by offering to “upgrade” the

project—from thirty

‐ two units to fifty

‐ six units—at no addi

‐

tional cost. Rosen misrepresented to the City that he could

increase the scope of the project so that the anticipated income

from the additional twenty

‐ four rental units would appear to

support the projected expenses. The East St. Louis Financial

Advisory Authority (“FAA”) questioned how Rosen could4 No. 12

‐ 2101

increase the scope of the project without increasing the

construction expenses. Rosen told the FAA that construction

costs had fallen so significantly, due to the recent economic

downturn, that it allowed him to add twenty

‐ four more units

to the project with no additional costs.

Of course Rosen could not actually build a fifty

‐ six unit

property for the same cost as a thirty

‐ two unit property. In

order to make up the difference, Rosen chose to substitute less

expensive prefab modular housing units in place of the new

construction that was contracted for in the development

agreement—without notifying or receiving approval from the

FAA, the East St. Louis Planning Commission, or the City

Council. To prevent the FAA from discovering that he in

‐

tended to substitute prefab modular housing, Rosen sent the

FAA two facsimile transmissions misrepresenting his plans for

the construction of the project. The first fax, dated June 16,

2009, contained an itemized list of materials and expenses

related to the construction of the housing units. The list was

created by the manufacturer of the prefab modular housing

units. Rosen, however, removed the manufacturer’s name,

address, phone number, and fax number from the document

to prevent the FAA from discovering that he planned to

substitute prefab modular housing. The second fax was sent on

June 18, 2009, and outlined a construction timeline for the

project. The timeline listed the anticipated completion date of

each phase of the new construction, including framing exterior

walls, plumbing, insulation, drywall, and painting. Of course

none of these phases of construction would occur because the

prefab modular housing is completely manufactured off

‐ site

and then shipped to the project’s location.No. 12

‐ 2101 5

B. Scheme to Fraudulently Obtain Private Financing

The terms of the agreement between Rosen and the City

required Rosen to obtain $3,699,240 in private funding toward

the completion of the project. The FAA granted approval for

the project subject to the condition that Rosen verify that Kully

Construction actually obtained private financing through a

commercial loan by submitting a copy of the closing docu

‐

ments. As neither Rosen nor Kully Construction were credit

‐ worthy, Rosen solicited his accounting firm to create false

financial statements and tax returns to exaggerate his income

and assets.

On November 10, 2009, Rosen faxed his newly

‐ created

fictitious 2006 tax return to Amerisource Funding, in support

of his application for private financing of the project. The

submitted tax return falsely stated that Rosen owned a

separate business with gross sales of $2,014,019, had an

ordinary business income of $272,572, and total assets of

$898,991. On November 20, 2009, Rosen again had his accoun

‐

tant send to Amerisource similarly false and fraudulent

financial statements, balance statements, and statements of

retained earnings for tax years 2006 and 2007.

Rosen then supplied the City with a series of letters that

purported to verify that Kully Construction had obtained

private financing for the developer’s contribution to the

Project. The FAA accepted a “commitment letter” from MDE

Capital as verification of private financing so that construction

could begin on the project. On June 23, 2009, the FAA passed

FAA Resolution No. 09–0623–89, which granted an approval

for the project, subject to the condition that Rosen actually6 No. 12

‐ 2101

close a commercial loan and provide proof of the loan closing

to the FAA. In reality, Rosen had not obtained a commitment

to lend from MDE Capital, as he had represented; rather, MDE

Capital refused to do business with Rosen after he requested

that a representative provide him with a fraudulent closing

document. Even without private financing, however, Rosen

moved ahead on the development of the project, and began

incurring costs, including the purchasing and clearing of the

land on the proposed construction site.

Meanwhile, as Rosen was still representing to the City that

he had obtained private financing through MDE Capital, he

continued to secretly, and unsuccessfully, seek private financ

‐ ing through other financial institutions. When the FAA tried to

confirm that Rosen had actually closed the commercial loan

with MDE Capital, Rosen responded by supplying the FAA

with closing documents from a different lender, First Monetary

Group, Inc. The documents represented that Rosen had

fulfilled his obligation and falsely evidenced the existence of a

$3,699,240 line of credit.

Unbeknownst to the City and the FAA, First Monetary

Group is not a financial lender; rather it is a brokerage service

that matches potential borrowers to actual lenders. Rosen paid

First Monetary Group $30,000 to create a closing document

that would satisfy the FAA’s requirements. In truth, no loan

was closed, no line of credit was established, and no private

funds were available to Rosen.No. 12

‐ 2101 7

C. Fraudulent Reimbursement

The next phase of Rosen’s scheme occurred when he duped

the City into reimbursing him for construction costs with

public funds. According to the terms of the development

agreement, public funds were to be used to reimburse eligible

expenses that were actually paid by the developer. The

development agreement required evidence in support of each

request for reimbursement (e.g., bills, contracts, invoices, lien

waivers) to verify that each expense was legitimate and eligible

for reimbursement.

On September 11, 2009, Rosen submitted a request for

reimbursement that falsely asserted that Kully Construction

had paid each of the itemized expenditures listed on the

invoice. Among the itemized expenses listed was a $40,000

expenditure supposedly paid to a subcontractor for clearing

the land on the construction site. In reality, Rosen paid only

$3,000 to clear the acreage. Rosen then forged the signature of

the subcontractor on a lien waiver, which was submitted to

falsely corroborate that the subcontractor had been paid in full,

when in truth the subcontractor had performed the work but

was still owed payment. After reviewing the documentation

Rosen submitted with the reimbursement request, the FAA

determined there was no evidence to support Kully Construc

‐

tion’s claim that it had actually paid the subcontractor $40,000,

and the FAA refused to reimburse that expense.

In total, Rosen made three “draw requests” for reimburse

‐

ment of expenses incurred by Kully Construction—$47,036.15,

$60,449.04, and $21,000. Rosen was actually reimbursed

$66,449.04 by the City.8 No. 12

‐ 2101

D. The Investigation

In December 2009, a search warrant was executed for

Rosen’s home. During the investigation Rosen was interviewed

three times by federal agents, over the course of which he

admitted to forging a lien waiver, submitting falsified billing

invoices and lying to investigators.

In September 2010, Rosen, now fully aware that he was the

subject of a federal criminal investigation, met with an aspiring

developer named Cheryl Pratt. Rosen told Pratt he was retiring

due to health concerns and that the City was looking for a new

developer to take over his project. Rosen, however, did not

mention that the project was the subject of a federal criminal

investigation. Rosen further told Pratt that $1.9 million dollars

in public financing would be transferred to her and that she

would be taking over a “fully functional, fully feasible project”

that was “ready to go.”

Relying on these misrepresentations, Pratt agreed to pay

Rosen $100,000 to acquire the land, architectural plans,

engineering plans, construction plans, and environmental

studies. Pratt gave Rosen an initial $6,000 in earnest money and

scheduled a formal closing for October 14, 2010. Rosen failed

to turn over the plans to Pratt at the closing, but she gave

Rosen an additional $44,000, and withheld the remaining

$50,000 until he provided her with the missing documentation.

On October 22, 2010, Rosen dropped off a box of

documents to Pratt’s office and she issued a check to Rosen for

the remaining $50,000. Pratt reviewed the documents, how

‐

ever, and learned that Rosen intended to substitute prefab

modular housing in lieu of the on

‐ site construction that wasNo. 12

‐ 2101 9

required under the terms of the contract. Pratt also discovered

that the City had not passed the ordinance transferring the $1.9

million dollars in public funding from Rosen to her. Shortly

after, Pratt received a call from Rosen’s engineering firm

informing her that Rosen did not have authority to use or

transfer the engineering plans because he had not yet paid the

engineering firm. Pratt then contacted her bank and stopped

payment on her $50,000 check before it was cashed.

During the fall of 2010, Pratt had several meetings with city

officials to try to resolve the issues surrounding the project. In

December 2010, Pratt was informed, for the first time, that the

project was subject to a federal criminal investigation, and that

Rosen did not actually own all the land at the site; one parcel

was still owned by another individual and a second parcel was

under the control of a Bankruptcy Trustee. Pratt then called

Rosen, in December 2010, and told him she wanted to rescind

their deal and have her initial $50,000 payment refunded.

Rosen agreed. Predictably, however, no refund was ever

remitted. Pratt attempted to contact Rosen approximately

twenty times in the following months, but to no avail.

Pratt did not hear from Rosen again until May 2011, when

she received a demand letter threatening to sue her if she did

not pay Rosen the second $50,000 installment payment that she

had cancelled. Eventually, Rosen filed a civil suit against Pratt.10 No. 12

‐ 2101

E. Proceedings Below

On January 21, 2011, a grand jury in the Southern District

of Illinois returned an indictment charging Rosen with nine

counts of wire fraud. On October 2, 2011, Rosen pleaded guilty

to counts one through seven of the indictment. In Rosen’s plea

agreement, the Government calculated his total offense level at

twenty

‐ seven, based on an offense level of seven, a sixteen

level enhancement for the loss amount, and a four

‐ level

increase based on Rosen’s role as an organizer or leader of the

charged offenses. Rosen, on the other hand, calculated his

offense level at seventeen, starting with a base offense level of

seven and a ten

‐ level enhancement for the loss amount.

Rosen was sentenced on April 20, 2012. The parties argued

three primary issues at the sentencing hearing. First, Rosen

objected to the probation officer’s calculation of the intended

loss. Second, Rosen objected to the application of a role

‐ in

‐ the

‐

offense adjustment for being a leader or organizer of criminal

activity that involved five or more participants or was other

‐

wise extensive, pursuant to U.S.S.G. § 3B1.1(a).Third, the

parties differed on what constituted a reasonable sentence in

this case under the § 3553(a) factors.

Ultimately, the district court calculated that under a

technical application of the law, the intended loss figure in this

case was approximately $4.6 million dollars. However, the

court granted Rosen’s motion for a downward departure after

determining that a technical application of the Guidelines

would substantially overstate the offense. The district court

calculated the intended loss amount to be $1,924,810—the

amount of public funding that Rosen was approved to receiveNo. 12

‐ 2101 11

from the City. Next, the district court determined Rosen to be

an organizer or leader of criminal activity that involved five or

more participants and applied an additional four

‐ level en

‐

hancement.

The district court’s resolution of these issues resulted in the

calculation of a total offense level of twenty

‐ four, which called

for a Guidelines range of fifty

‐ one to sixty

‐ three months’

imprisonment. The district court granted Rosen’s request for

a below

‐ Guidelines sentence, though not to the full extent he

sought. Rosen argued for leniency based upon his age, medical

condition, family circumstances, and that the actual loss in this

case was substantially less than the intended loss. In the end,

the district court sentenced Rosen to a below

‐ Guidelines range

sentence of forty

‐ eight months’ imprisonment.

II. DISCUSSION

Rosen appeals the district court’s calculation of the in

‐

tended loss amount under U.S.S.G. § 2B1.1, the determination

of Rosen’s role in the offense as a leader or organizer, pursuant

to U.S.S.G. § 3B1.1(a), and the reasonableness of his sentence

under U.S.S.G. § 3553(a).

A. Intended Loss Calculation

We review a district court’s calculation of loss for clear

error. United States v. Green

, 648 F.3d 569, 583 (7th Cir. 2011).

However, threshold questions concerning the meaning of

“loss” and the methodology to be used in measuring that loss

present questions of law that call for de novo review. United

States v. Wasz

, 450 F.3d 720, 726 (7th Cir. 2006). The Sentencing

Guidelines provide for an increase in offense level based upon12 No. 12

‐ 2101

the amount of loss resulting from the offense. U.S.S.G.

§ 2B1.1(b). A loss is defined as either the actual or intended

loss, whichever is greater. § 2B1.1, cmt. n.3 (A). Further,

“intended loss” refers to the pecuniary harm that was intended

to result from the offense, including that which would have

been impossible or unlikely to occur. § 2B1.1, cmt. n.3 (A)(i

‐ ii)

(2011).

In determining the loss amount in this case, the district

court found that the intended loss was $1,924,810, which was

the amount of public funding the City earmarked for Rosen’s

affordable housing project. Rosen argues using the amount of

public funding as the intended loss amount was an error that

expands the Guidelines’ definition of “intended loss” because

it requires a presumption that he would have taken additional

affirmative steps in furtherance of the fraud. In support of this

claim, Rosen points out that he was never actually eligible to

receive any public funds because he did not meet the condition

of his agreement with the City that he obtain private financing.

Rosen argues that the “intended loss” amount set by the

district court is based on speculation as to the harm the

defendant might have caused had his scheme persisted to its

intended conclusion.

We disagree that the calculated intended loss amount was

based on speculation. Rather it was based upon the amount

Rosen was eligible to receive from the City had his scheme

been successful. As we noted in United States v. Schneider

, 930

F.2d 555, 558 (7th Cir. 1991), “‘loss’ within the meaning of the

Guidelines includes intended, probable, or otherwise expected

loss, a qualification of vital importance in a case

... where

fraud is discovered or otherwise interrupted before the victimNo. 12

‐ 2101 13

has been fleeced.” Rosen qualifies as a “true con artist.” Id. He

had no intention of upholding his end of the agreement with

the City, and clearly had no qualms about doing whatever he

deemed necessary in order to carry out his fraudulent scheme

to its most lucrative end. Accordingly, we find that the district

court did not err in its determination of the appropriate

intended loss amount.

B. Role

‐ In

‐ The

‐ Crime Enhancement

The district court applied a four

‐ level enhancement to

Rosen’s sentence, pursuant to U.S.S.G. § 3B1.1(a), after deter

‐ mining that Rosen was an organizer or leader of a criminal

activity that involved five or more participants or was other

‐

wise extensive. Whether a defendant exercised a leadership or

managerial role in the charged offense is a determination that

we review for clear error. United States v. Johnson

, 489 F.3d 794,

796 (7th Cir. 2007).

The “central concern” of § 3B1.1 is the defendant’s relative

responsibility for the commission of the offense. United States

v. Vasquez

, 673 F.3d 680, 685 (7th Cir. 2012) (citing United States

v. Mendoza

, 576 F.3d 711, 717 (7th Cir. 2009)). In making that

determination, the district court should consider factors such

as “the defendant’s decision

‐ making authority, nature of

participation, recruitment of accomplices, claimed right to a

larger share of the fruits of the crime, role in planning and

organizing, scope of illegal activity, and control and authority

exercised over others.” Vasquez

, 673 F.3d at 685 (citing U.S.S.G.

§ 3B1.1 cmt. n.4; United States v. Knox

, 624 F.3d 865, 874 (7th

Cir. 2010)). In order to appropriately apply a § 3B1.1(a)

adjustment to a defendant ʹ s sentence, “the defendant must14 No. 12

‐ 2101

have exercised some degree of control over others involved in

the commission of the offense or he must have

been responsible for organizing others for the purpose of

carrying out the crime.” Vasquez

, 673 F.3d at 685 (citing Knox

,

624 F. 3d at 874).

Even though the record clearly reflects that Rosen was the

sole mastermind behind this scheme, and recruited additional

accomplices as he deemed necessary, he argues that this

enhancement was in error as he was not the organizer of a

unified criminal plot. Rosen admits he had “associations” with

people he used to further his criminal conduct, however, he

argues that those associates’ roles were too limited in scope

and objective for them to be considered participants in a larger,

cohesive criminal scheme. The Presentence Report identified

seven individuals who participated in Rosen’s scheme. Rosen

concedes he recruited each of these individuals, but he argues

that he solicited each person only as his need for their individ

‐

ual services arose. Meaning each individual was solicited by

Rosen for a specific objective rather than all acting in concert

within a larger unitary criminal scheme, and he did not

exercise authority or control over the participants.

Relying on United States v. Wasz 450 F.3d 720 (7th Cir. 2006),

the district court found that Rosen’s organizational role

consisted of “efforts to marshal other individuals for the

purpose of executing the crime” thereby satisfying § 3B1.1(a).

Id

. at 730. Rosen argues his case is distinguishable from Wasz

because here there was no unified scheme; rather each partici

‐

pant was recruited by Rosen to perform a specific role (such as

creating a fictitious tax return) and there is insufficient evi

‐

dence to suggest that all these participants were workingNo. 12

‐ 2101 15

towards the same end. We disagree. In Wasz

, we noted that

though the defendants contracted individually with each co

‐

defendant, their actions still reflected “a guiding influence over

the other participants in the offense.” Id

.

Here, we agree with Rosen that he recruited each additional

participant to perform specific illegal handiwork, but that does

not diminish his culpability as an organizer under § 3B1.1(a).

Rosen alone owned Kully Construction, the “development”

business at the center of this fraud scheme, and he alone had

decision

‐ making control over every aspect of this crime. Rosen

chose who was recruited, for what purpose, and solely

determined each participant’s appropriate compensation. For

example, Hawkins was a secretary Rosen solicited to pose as

Kully’s fictional CEO. In exchange, Rosen promised her future

employment in the company. It is clear that Rosen was in

control of this ploy all along. He recruited and compensated

his cohorts as needed to bring his fraudulent plan to its

intended conclusion. We find no clear error in the the district

court’s determination that Rosen was the organizer of this

brazen scheme and deserving of a four

‐ level enhancement

pursuant to § 3B1.1.(a).

C. Unreasonable Sentence

Rosen’s final challenge is to the reasonableness of his

sentence. When considering the overall reasonableness of a

sentence, we review for an abuse of discretion. United States v.

Jackson

, 547 F.3d 786, 792 (7th Cir. 2008). This review involves

a two

‐ step analysis. First, we ensure that the district court did

not make any procedural errors; if it did not, then we evaluate

the sentence’s substantive reasonableness. Id. Here, Rosen faces16 No. 12

‐ 2101

a particularly uphill battle, given that his sentence is presump

‐ tively reasonable because it is below the applicable Guidelines

range. See United States v. Poetz

, 582 F.3d 835, 837 (7th Cir.

2009).

1. Sentencing Procedures

The Supreme Court has made clear that a, “a district court

should begin a sentencing hearing by calculating the advisory

guidelines range.” United States v. Long

, 639 F.3d 293, 299 (7th

Cir. 2011) (citing Gall v. United States

, 552 U.S. 38, 49, 128 S.Ct.

586, 169 L.Ed.2d 445 (2007)). The district court must then

subject its proposed sentence to adversarial testing, hearing

arguments as to whether the advisory sentence should apply.

Long

, 639 F.3d at 299 (citing Rita v. United States, 551 U.S. 338,

351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Finally, the district

court must evaluate the § 3553(a) factors and impose a sen

‐

tence, providing an “adequate statement of the judge’s reasons,

consistent with § 3553(a), for thinking the sentence that he has

selected is indeed appropriate for the particular defendant.”

Long

, 639 F.3d at 299 (citing United States v. Dean

, 414 F.3d 725,

729 (7th Cir. 2005)).

Here, the crux of Rosen’s argument is that the procedural

sequence of his sentencing hearing was improper because the

district court failed to adhere to the “strict” sentencing proce

‐

dures outlined in U.S.S.G. § 1B1.1. Specifically, Rosen argues

the district court erred when it made the determination that he

was entitled to a downward departure regarding the intended

loss amount at issue contemporaneously with its determina

‐

tion of the applicable Guidelines range. In support of his

contention, Rosen relies upon a case in which the Third Circuit,No. 12

‐ 2101 17

held that the district court procedurally erred when it analyzed

steps of the sentencing procedures out of order. United States

v. Friedman

, 658 F.3d 342, 361 (3d Cir. 2011). In Friedman

, the

district court began its analysis by first discussing the disputed

loss calculation, then discussing a departure motion, then

discussing two additional Guidelines disputes, then engaging

in some discussion of the § 3553(a) factors, then stating that it

would impose something less than a offense level of twenty

‐

two before continuing its discussion of § 3553(a) factors. Id

. Finally the district court imposed a thirty

‐ four month sentence,

based on an offense level of “either nineteen or twenty .” Id.

Our sister circuit reasoned that the convoluted record in

Friedman inhibited its “ability to review the sentence for

reasonableness and thus required remand.” Id.

That situation is not present here. A review of the sentenc

‐ ing transcript shows that the district court correctly calculated

the appropriate Guidelines range, granted a sufficient down

‐

ward departure based upon the intended loss amount in this

case, sufficiently considered the arguments of both Rosen and

the Government, and crafted a reasonable sentence based upon

the § 3553 (a) factors. Unlike Friedman

, we have no trouble

reviewing the district court’s sentence in this case and find no

procedural error.

2. Substantive Reasonableness

Rosen raises two challenges to the substantive reasonable

‐

ness of his sentence. First, Rosen argues that his sentence is

unreasonable because the intended loss amount calculated by

the district court overstates the seriousness of his offense,

when compared to the actual loss that occurred. The commen

‐18 No. 12

‐ 2101

tary to U.S.S.G. § 2B1.1 notes that “there may be cases in which

the offense level determined under this Guidelines substan

‐ tially overstates the seriousness of the offense.” U.S.S.G.

§ 2B1.1 cmt. n. 19(C).

In this case, the district court calculated the intended loss

amount at $1.9 million dollars—the amount of public funding

that Rosen stood to receive had his scheme progressed as he

hoped. Rosen argues that in order to even be eligible to receive

the $1.9 million dollars in public funding, he would need to

first obtain private financing, and then submit draw requests

to the City asking for reimbursement. Since Rosen was

unsuccessful, after multiple attempts, to obtain private

financing, he argues that the $1.9 million dollar loss amount set

by the court is unreasonably high because there was little

possibility that Rosen’s scheme could have successfully

progressed to that point. Rosen argues that his ploy was

doomed never to materialize beyond fraudulent private

financing applications; the actual loss amount ($66,449.04) is a

more accurate barometer of the seriousness of his offense.

We have held that a “court can consider the amount of

variance between the intended loss and the realistic possibility

of loss when considering an appropriate sentence.” United

States v. Portman

, 599 F.3d 633, 640 (7th Cir. 2012) (citing United

States v. Stockheimer

, 157 F.3d 1082, 1091 (7th Cir. 1998)). This

decision, however, remains in the sentencing judge ʹ s wide

discretion, and our review may only evaluate the overall

reasonableness of the sentence imposed. Id

. A review of the

record demonstrates that the district court thoroughly consid

‐

ered the substantial difference between the intended loss in

this case ($1.9 million dollar) and the actual loss amountNo. 12

‐ 2101 19

($66,449.04); when the district court granted Rosen a below

Guidelines sentence, which we hold to be presumptively

reasonable. See Rita v. United States

, 551 U.S. 338, 347, 127 S.Ct.

2456, 168 L.Ed.2d 203 (2007). Therefore, we find no abuse of

discretion, nor any support for Rosen’s contention that his

sentence is unreasonable because the intended loss amount

overstates the seriousness of his offense.

Second, Rosen contends that the court failed to adequately

consider the mitigating factors applicable under § 3553(a). We

will determine a sentence to be reasonable “if the district court

gives meaningful consideration to the factors enumerated in 18

U.S.C. § 3553(a), including the advisory Sentencing Guidelines,

and arrives at a sentence that is objectively reasonable in light

of the statutory factors and the individual circumstances of the

case.” United States v. Shannon

, 518 F.3d 494, 496 (7th Cir. 2008)

(citing Gall

, 552 U.S. at 49–50, 128 S.Ct. 586; United States v.

Wachowiak

, 496 F.3d 744, 748 (7th Cir. 2007)).

Here, Rosen contends that the district court did not give

proper weight to his family circumstances, advanced age, and

poor health. On the contrary, the sentencing transcript in this

case illustrates that the district court throughly considered all

appropriate § 3553(a) factors in crafting Rosen’s sentence. The

district court specifically noted Rosen’s advanced age and

failing health, but also saw his crime as outrageous. Rosen

sought to swindle an already impoverished City out of millions

of dollars in public funding through an elaborate fraud

scheme, couched under the guise of creating “affordable

housing” for the benefit of the residents of East St. Louis.

Rosen failed to rebut the presumption of reasonableness20 No. 12

‐ 2101

attached to his sentence, as such, we find no abuse of discretion.

III. CONCLUSION

Accordingly, we AFFIRM.