# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued October 2
, 2018 Decided October 9 , 2018

Before

WILLIAM J. BAUER
, Circuit Judge

MICHAEL S. KANNE
, Circuit Judge

MICHAEL Y. SCUDDER
, Circuit Judge

No. 17

- 3295

UNITED STATES OF AMERICA, Plaintiff

- Appell ee ,

v

.

SEBASTIAN DEPTULA
, Defendant

- Appell ant

. Appeal from the United States District Court for th e Northern District of Illinois, Eastern Division.

No. 15

- CR

- 188

- 1

Samuel Der

- Yeghiayan
, Judge

.

O R D E R
Sebastian Deptula pleaded guilty to one count o f wire fraud for his role in orchestrating a wide

- reaching scheme that defrauded credit card issuers
, lenders, and insurance companies out of more than $ 3.5 million. When calculating the advisory G uidelines range, the district court increased Deptula’s base offense level because the offense involved a misrepresentation during the co urse of a bankruptcy proceeding and use of “sophisticated means.” Dep tula now appeals his 156

- month prison s entence, arguing that the district court erred by not addressing either enhancement at sentencing and by imposing a n unreasonable se ntence. Because Deptula waived the first argument and his within

- G uidelines sentence is substantively reasonable, we a ffirm. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 3295 Page 2

I

Between 2010 and 2014, Deptula facilitated a multifaceted scheme to fraudulently obtain millions of dollars fr om credit card issuers, consumer loan providers, and insurance compani es. He recruited others to join in the credit card componen t of the scheme in part by assuring them that they could later discharge accumulated debt by filing a bankruptcy petition

. The scheme worked as Deptula planned: sixteen recruits maxed out multiple credit cards each and then declared bankruptcy to avoid responsibility for the debts. Deptula and nineteen others were eventually caught and charged in two separate indictments . Dept ula was charged with ten counts of wire fraud, 18 U.S.C. § 1343, and one count of mail fraud, id. § 1341. He pleaded guilty to one count of wire fraud

. In the written plea agreement, the parties agreed that the district court should increase Deptula’s bas e offense level of 7 by 2 levels because the offense involved at least ten victims, U.S.S.G. § 2B1.1(b)(2)(A), and by 4 levels for his leadership role, id. § 3B1.1(a). But Deptula opposed the government’s position that three other adjustments based on spe cific offense characteristics applied: an 18

- level increase because the loss amount exceeded $3,500,000, id. § 2B1.1(b)(1)(J); a 2

- level increase because the offense involved a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding, id. § 2B1.1(b)(9)(B); and a 2

- level increase for the use of sophisticated means, id. § 2B1.1(b)(10)(C).

The probation officer who prepared the presentence investigation report included all five off ense

- level increases in her G uidelines calculations for a total offense level of 32, after accounting for acceptance of responsibility under U.S.S.G. § 3E1.1. In his sentencing memorandum, Deptula objected to his criminal history category of II and to the application of enhancements based on th e number of victims and the loss
amount

. But he did not object to the other two enhancements (for misrepresentation in a bankruptcy proceeding or use of sophisticated means). In fact, Deptula calculated a “Proposed Guidelines Range” that appears to have in cluded these enhancements.

In advance of sentencing, Deptula highlighted that he has only one prior conviction (for mortgage fraud) and has used his time in custody in a productive manner (teaching yoga to other inmates). He also pointed to his strong connections with family and friends in Poland, as evidenced by the many letters of support submitted to the district court . As to the nature and circumstances of the offense, Deptula noted that the fraud scheme involve d no violence and harmed only institutional victims. Based onNo. 17

- 3295 Page 3

these facts and his inevitable deportation upon the completion of his sentence, Deptula requested a sentence of 48 months in prison

. For its part, t he government argued that a sentence at the upper end of the G uidelines rang e was appropriate based on the length and scope of the scheme and Deptula’s “manipulative and self

- centered character.”

At the sentencing hearing, the district court noted Deptula’s written objections to the probation officer’s calculations of the loss am ount, number of victims, and criminal history category, and then asked Deptula and his counsel if they had “any other objections or comments relating to the PSR.” One of Deptula’s attorneys said, “No additional,” and Deptula too said, “No.” After hearing a rgument on each of the three objections, the court found that the 18

- level increase for loss amount was appropriate, that the number of victims exceeded ten, and that a criminal hist ory category of II was proper. The court therefore adopted the probation o fficer’s calculation of an adjusted offen se level of 32 and a resulting advisory range of 13 5 to 168 months’ imprisonment.

The parties then presented argument on th e 18 U.S.C. § 3553(a) factors, largely reiterating the positions in their sentencing memora nda. In addressing the factors, the district court considered Deptula’s modest criminal history, his conduct while in detention, an d the many letters of support. A s to the serious nature of the offense, the
court noted that financial fraud undermines finan cial institutions, creates customer insecurity, and necessitates the expenditure of sig nificant government resources. The
court further a cknowledged Deptula’s leadership role in the “complex and lengthy scheme,” which caused millions of dollars in loss. Wh ile crediting Deptula’s decision to plead guilty and accept responsibility , the court underscored the seriousness of his offense conduct, noted the prior conviction for mortgage fraud, and agreed with the government that Deptula exhibited a high likelihood of comm itting future crimes.

Based on these findings, the district court sentenced Deptula to 156 months’ imprisonment and ordered full restitution

. The court considered the likelihood of deportation in declining to order supervised release to follow the term of imprisonment. After pronouncing the sentence, the judge asked: “Defense, did I cover all of your arguments?” C ounsel answered in the affirmative

— “I bel ieve so”

— and confirmed that th ere was “nothing further.”

II

Deptula now contends on appeal that the district court erred by not expressly addressing at sentencing the offense

- level increases for misrepresentation during aNo. 17

- 3295 Page 4

bankruptcy proceeding or use of sophisticated means

. The government responds that Deptu la waived this argument and that , in any event, the district court did not plainly

err by not expressly discussing the factual basis for the se enhancements at sentencing

. We agree on both points.

A

We have repeatedly held that when a defendant elects to pursue certain sentencing arguments while forgoing others, he waives th e arguments not presented

. See, e.g., United States v. Barnes , 883 F.3d 955, 957

– 58 (7th Cir. 2018); United States v. Brodie
, 507 F.3d 527, 531

– 32 (7th Cir. 2007); United States v. Cooper , 243 F.3d 411, 416 (7th Cir. 2001). Of course, this is not an inflexible rule. S ee United States v. Jaimes

- Jaimes , 406 F.3d 845, 848 (7th Cir. 2005). But waiver is more readily found in cases w here, as here, the defendant had access to the PSR, knew of his right to object to the probation officer’s

r ecommendations, and confirmed at sentencing that all of his arguments in m i tigation had been addressed. See Brodie , 507 F.3d at 531; United States v . Syms , 846 F.3d 230, 234 (7th Cir. 2017); United States v. Garcia

- Segura , 717 F.3d 566, 569 (7th Cir. 2013).

In his sentencing memorandum, Deptula objected to three parts of the probation office’s Guidelines calculation in the PSR : the loss amount, the number of victims, and the criminal history category. Then, at the beginning of the sentencing hearing, Deptula and his counsel both expressly confirmed that he was objecting to only these three parts

. This deliberate course of action evinces an intentiona l waiver. See Brodie , 507 F.3d at 531 ( “[The defendant] objected to certain parts of the PSR and stated on the record that he did not have any further objections when asked by the district court. This seems to us the paragon of intentional relinquishment.” ). Further, a fter the district court addressed the defense’s three objections and pronounced the sentence, Deptula’s counsel confirmed that the court had addressed everything raised by Deptula

. Based on th e record before us, we conclude that Deptula waived his right to challenge these sentencing enhancements.

Even if we view Deptula’s argument as merely forfeited, the district court did not plainly err by not discussing the offense

- level increases for misrepresentation in a bankruptcy proce eding and use of sophisticated means. See United States v. Olano
, 507 U.S. 725, 731

– 36 (1993) (explaining forfeiture and defining plain

- error review). After addressing Deptula’s three objections, the court concluded that the PSR reflects the appropriate total offense level and then adopted the probation officer’s calculations. The court was not obligated to address parts of the PSR to which neither party hadNo. 17

- 3295 Page 5

objected

— and to which Deptula affirmed on the record that he did not object. “A party may not by h is own actions lull the court into believing that an express finding is unnecessary and then object when it makes no such finding.” United States v. Walton
, 2 5 5 F.3d 437, 442 (7th Cir. 2001). That is what Deptula attempts to do here.

In his reply brief , and citing United States v. Bokhari , 430 F.3d 861, 863 (7th Cir. 2005) , Deptula contends that the district court’s obligation to make a “proper

— and explicit

— determination of the total offense level and corresponding sentencing range” is not sub ject to wa iver or forfeiture

. But Bokhari is inapplicable. There we vacated the sentences because the district court “arrived at only an estimate of the total offense level,” and it was unclear from the sentencing transcript whether the judge had granted or denied t he defendants’ objections to two sentencing enhancements r ecommended in the PSR. 430 F.3d at 864. Here, however, the district court resolved each of Deptula’s objections to the PSR and then, based on its findings, stated the total offense level, criminal h istory category, and corresponding advisory sentencing range.

B

Deptula also challenges the substantive reasonableness of his 156

- month sentence on two grounds, but neither is sufficient to overcome the presumption of

re asonableness afforded a sentence w ithin the advisory range

. United States v. Miller
, 834 F.3d 737, 744 (7th Cir. 2016).

First, Deptula contends that the record does not support the district court’s findings about the impact of financial fraud, which the court considered in assessing the seriousness of the offense and the need for the sentence to promote respect for the law. See 18 U.S.C. § 3553(a)(2)(A)

. We disagree. T he record contains ample s upport for the court’s conclusion that financial fraud undermines f inancial institutions, creates customer insecurity, and requires significant governmental resources to discover and prosecute. In the plea agreement and at the plea heari ng, Deptula admitted that the fraud sc heme affected multiple financial institutions ov er a more than four

- year period. And although Deptula disputed the probation officer’s loss calculation, he nevertheless admitted in his sentencing memorandum that the total loss exceeded $1 million. T he sentencing judge was permitted to rely on these u ndi sputed facts to draw common

sense conclusions about the seriousness of the fraud. See United States v. Freeman
, 843 F.3d 315, 319

– 21 (7th Cir. 2016). This includes drawing the reasonabl e inferences that fraud schemes like Deptula’s divert government resou rces and undermine confidence in financial institutions.No. 17

- 3295 Page 6

Second, Deptula argues that the district court’s statement on the likelihood of deportation contradicts its emphasis on deterring criminal conduct and protecting the public from further crimes by D eptula. See 18 U.S.C

. § 3553(a)(2)(B), (C). But the fact that Deptula is likely to be deported after serving his prison sentence does not undermine the court’s finding that there is a “definite need” to deter him and o thers from committing fraud. See United States v. Ramirez

- Fuente s , 703 F.3d 1038, 104 8 (7th Cir. 2013) (explaining that, despite likelihood of d eportation, defendant’s within

- G uidelines sentence was justified by the seriousness of the offense and the need to promote respect for the law). I n assessing the need for deterrence and public protection, the district court weighed the length, scope, and complexity of the scheme; the substantial amount of restitution that would be ordered; and the fact that Deptula’s previous conviction for mortgag e fraud did not deter him from engaging in additional frau dulent activity.

The district court also adequately considered Deptula’s mitigating argument that he would no longer pose a danger in the United States because of the likel ihood that he would be de ported

. Although the court did not state how the potential for deportation influenced the selection of a prison ter m , the court considered each of the § 3553(a) facto rs before arriving at a within

- G uidelines sentence. See Ramirez

- Fuentes , 703 F.3d at 104 9 ( “Although the district judge did not explicitly discuss his consideration of Ramirez

– Fuentes's deportation argument, he nevertheless demonstrated that he gave meaningful consideration to the factors in § 3553(a) and to the claims that merited comment.”). The district court also declined to impose any term of supervised release precisely because Deptula would be deported following his term of imprisonment. We see no reason to overturn this presumptively reasonable sent ence on appeal.

For these reasons, w e AFFIRM the judgment of the district court.