# Unite States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 27, 2009

Decided June 24, 2009

Before

ILANA DIAMOND ROVNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 08

‐ 2388

UNITED STATES OF AMERICA, Appeal from the United States

Plaintiff

‐ Appellee

, District Court for the Northern

District of Illinois, Eastern

v. Division

JAMES R. SKRZYPEK & JANICE Nos. 97 CR 516

‐ 2 & 97 CR 516

‐ 3

M. SKRZYPEK,

Defendants

‐ Appellants

. James B. Moran, Judge

ORDER

A jury convicted husband and wife James and Janice Skrzypek on 159 counts

of a superseding indictment that included charges of racketeering, 18 U.S.C. §

1962(c), conspiracy to defraud the United States, id. § 371, mail and wire fraud, id. §§

1341, 1343, and bribery of a public official, id. § 201. We affirmed the Skrzypeks’

convictions in an unpublished order on March 22, 2007, United States v. Skrzypek

, Nos., 05

‐ 2055 & 05

‐ 2056, 219 Fed. Appx. 577 (Mar. 22, 2007), but remanded for

resentencing “for the limited purpose of allowing the district court to set a payment NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 2388 Page 2

schedule for restitution,” id. at 579. On remand, the district court imposed new

sentences for both defendants that included a repayment schedule for restitution,

namely, 10% of their net monthly income to commence after incarceration.

The Skrzypeks now appeal, but their appointed counsel has moved to

withdraw because he is unable to discern any meritorious issues for appeal. See

Anders v. California

, 386 U.S. 738 (1967). The Skrzypeks have responded to our

invitation under Circuit Rule 51(b) to comment on counsel’s submission. We limit

our review to those issues identified in counsel’s brief and the Skrzypeks’ response

to it. See United States v. Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

The background facts are described more fully in our earlier order. See

Skrzypek

, 219 Fed. Appx. at 577

‐ 78. As relevant here, the Skrzypeks owned several

companies that offered armed guards on a contract basis to the Chicago Housing

Authority. Through their companies, the Skrzypeks defrauded the CHA of over $1.1

million by charging for guards that they never hired. The CHA was not the only

victim. They also underpaid several insurance companies by $2.3 million and

defrauded the United States government of approximately $2.5 million by failing to

pay taxes owed. In addition to 90 months’ imprisonment apiece, the district court

sentenced them to jointly pay roughly $3.5 million in restitution, despite the fact that

they had virtually no remaining assets by the time of sentencing. After their

sentencing but before their appeal, we decided United States v. Day

, 418 F.3d 746 (7th

Cir. 2005), which holds that district courts must set a payment schedule for

restitution when a defendant lacks the resources to make immediate payment, id. at

761. Based on our holding in Day

, we remanded the Skrzypeks’ appeal for the

limited purpose of allowing the district court to set a payment schedule. Skrzypek

,

219 Fed. Appx. at 579.

In his Anders submission, counsel concludes that on appeal the Skrzypeks are

limited to raising issues arising from the remand and their resentencings. Counsel

correctly discounts other potential arguments because anything that the Skrzypeks

could have raised on direct appeal, but did not, is now waived. See United States v.

Parker

, 101 F.3d 527, 528 (7th Cir. 1996). That leaves only challenges arising out of

the correction of the sentence ordered by this court in the Skrzypeks’ first appeal.

We directed the district court in that appeal to impose a restitution schedule, which

it did at resentencings for both James and Janice Skrzypek. As counsel notes, there is

nothing unreasonable about the district court’s imposition of a restitution schedule

of 10% of the Skrzypeks’ net income commencing upon their release. Thus, we agreeNo. 08

‐ 2388 Page 3

with counsel that any challenge to their sentences or the restitution schedule would

be frivolous.

In their response to counsel’s Anders brief, the Skrzypeks first contend that

their current appointed counsel is ineffective. But this claim is better raised in a

collateral proceeding where the Skrzypeks may develop a record regarding their

counsel’s conduct. See

, e.g.

, United States v. Recendiz

, 557 F.3d 511, 531

‐ 32 (7th Cir.

2009). The Skrzypeks next contend that because the district court’s original

restitution order failed to include a payment schedule it was “deficient on its face.”

They assert that this deficiency opened the door on remand for them to challenge not

only the payment schedule, but the restitution order itself and the accompanying

term of imprisonment. This argument would be frivolous. The Skrzypeks are not

entitled to a second bite at sentencing through the “accident of remand.” See Parker

,

101 F.3d at 528.

For the foregoing reasons we GRANT counsel’s Anders motion and DISMISS

the appeal.