### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2508
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.
A IRRION S. B LAKE , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the

Northern District of In diana, Hammond Division No. 2:16-cr-00074 — Joseph S. Van Bokkelen , Judge

.

____________________
A RGUED M AY 13, 2020

— D ECIDED J ULY 13, 2020

____________________

Before R IPPLE , B ARRETT , and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge . A defendant convicted of tax fraud challenges his sentence , disputing the loss amountwhich set the applicable range for his case under the Sentencing Guidelines. The district co urt did not commit reversible
error, so we a ffi rm the defendant’s sentence. The defendant also appeals the denial of his claim of ineffective assistance of trial coun sel. Because on direct appeal2 No. 19-2508

such a claim is limited to the or iginal trial record, it is often better raised on collateral review. The defendant agrees, so we dismiss that claim without prejudice. I. Background
A. Factual and Procedural Airrion Blake engaged in a fraudulent tax scheme. He is acollege graduate with a master’s degree in business administration. Even so, he claims unnamed users in internet chatrooms persuaded him that the federal government holds hidden bank accounts for its citizens—“legacy trusts”—that can be accessed through various legal maneuvers. According to this ploy the government allows anyone to cash out their lifetime social security earnings at any time. Under this pretenseBlake filed eight different individual tax returns using fraudulent information. The details of those returns are described below, as they impact the Sentencing Guidelines calculations that Blake challenges. In 2009, Blake fi led a return for the 2006 tax year, claiming he was entitled to a $297,886 refund based on $334,565 ingross income and $303,063 in income tax withheld. As support for those fi gures, Blake a tt ached pages of bogus forms, purporting to show that he wi thheld income on various companies’ behalf. Blake would not have paid those companies any income, though, let alone withheld their income tax. For example, one company was his mortgage lender. In 2011, Blake fi led a return for the 2008 tax year. He claimed $900,000 in income, alleged $300,000 was withheld on his behalf, and sought a $300,000 refund. He also fi led returns for the 2009 and 2010 tax years with the same fi gures. Each return included Blake’s Sout h Holland, Illinois post o ffi ce boxNo. 19-2508 3

and was fi led using an employee identi fi cation number set up in 2011 for the “Airrion S. Blake Cesti Que Tr.” In 2012, Blake fi led a return for the 2011 tax year, leading to his criminal indictment. On this return he obtained and used a di ff erent employee identi fi cation number for the “Airrion Socrates Blake Estate.” He also represented that that estate earned $298,716 for the 2011 tax year, paid fi duciary feesin the same amount, and withheld $149,358 (half of the previous fi gure) in taxes. Blake sought a refund of $149,358.35, and his gambit paid o ff : the Internal Revenu e Service issued the refund requested. In 2013, Blake fi led a return for the 2012 tax year seeking a$149,358 refund. That form listed the same fraudulent information as the 2011 return. The next year, in 2014, Blake fi led a return for the 2013 tax year seeking a $139,358 refund basedon the same fraudulent information as the 2011 and 2012 returns, less $10,000 in the withholding and refund fi gures. Later in 2014, Blake fi led a second return for the 2012 tax year, using the same fraudulent info rmation and seeking the same $149,358 refund as the fi rst 2012 return. The following tablesummarizes Blake’s eight false tax returns, the refunds he requested, and the IRS’s responses:

Tax Yea r Refund Sought IRS Paid Out
2006 $297,886 No
2008 $300,000 No
2009 $300,000 No
2010 $300,000 No4 No. 19-2508

2011 $149,358 Yes
2012 (Filed Oct. 2013) $149,358 No
2012 (Filed May 2014) $149,358 No
2013 $139,358 No

Blake’s actions came to the attention of the IRS in 2015. During a consensual interview with two agents, Blake made several admissions about these re turns. He told the agents that he had control of the post office box used on the 2008-2010 returns, but he denied ev er seeing those filings. He also told them that the 2008 an d 2009 returns contained handwritten signatures that resembled his signature, but he deniedany such resemblances on the 2010 return. Blake also admitted that he prepared and filed a 2011 tax year return, resulting in the IRS refund. About one month later, Blake sent the IRS a “Notice of Mistake & Notice to Rescind 1041 filing.” In “response to the ongoing criminal investigation” Blake sought to “rescind the [Form] 1041 returns ... subm itted for the tax period 2008-2015.” Blake also sent what he claimed was a $200,000 promissory note to “offset/disch arge” his accounts for “years 2009-2013.” Then in February 2016, Blake sent a return to the IRS faking his own death, stating that he and his wife had died in May 2012 and May 2013, respectively. A grand jury indicted Blake fo r presenting a false or fictitious claim to a United States ag ency, here the IRS, in violation of 18 U.S.C. § 287, and theft of government money in violation of 18 U.S.C. § 641. At trial one of the IRS agents testified to Blake’s admissions during his 2015 interview. Blake took theNo. 19-2508 5

stand and told the jury that he prepared and filed the 2011 tax year return. He also testified th at the estates listed in the returns neither earned the income represented nor paid any fiduciary fees. But he claimed hi s filings were valid because he filed his returns with a “discl aimer” that read “void where prohibited by law.” When the government sent him the check for his 2011 return, he thought his plan was validated. The jury did not buy Blake’s defense and, after a four-day trial, convicted him of both charges. B. Sentencing Guidelines Calculation
The district court calculated Blake’s guidelines range as follows: the base o ff ense level was 6 (under U.S.S.G. § 2B1.1);16 levels were added for an intended loss in excess of $1.5 million (under U.S.S.G. § 2B1.1(b)(1)(I)); and 2 more levels were added for obstruction of justice (under U.S.S.G. § 3C1.1). The total o ff ense level was 24, and with a criminal history category of I, Blake’s advisory senten cing guidelines range was 51–63 months. Blake objected to the district court including in its loss calculation $900,000 in claimed refunds in the 2008–2010 filings, arguing he was not responsible for those filings. He also claimed $300,000 should be the in tended loss amount because he intended to obtain only his “legacy trust” funds which he believed were about that amount. Under U.S.S.G.§ 2B1.1(b)(1), a $300,000 loss amount results in a 12-level increase rather than a 16-level increase. Under Blake’s calculations, his offense level should have been 20, not 24, resulting in a guidelines range of 33–41 months’ imprisonment. U.S.S.G. § 5A.6 No. 19-2508

The district court overruled Blake’s objection and sentenced him to 36 months in prison and ordered $149,358 in restitution. Blake has appealed the district court’s conclusion that his intended loss exceed ed $1.5 million, resulting in a 16-level increase in the guidelines offense level.
II. Calculation of Intended Loss
A. Standard of ReviewThe calculation of intended loss by a district court is reviewed for clear error, and a reversal is appropriate “only if we are left with the de fi nite and fi rm conviction that a mistake was made.” United States v. Brown , 880 F.3d 399, 409 (7th Cir.), cert. denied , 139 S. Ct. 110 (2018) (citation omi tt ed); United States v. Riley , 493 F.3d 803, 810 (7th Cir. 2007) (defendant must show loss calculation wa s not only inaccurate but outside realm of permissible co mputations) (quotation marks and citation omi tt ed).
B. Discussion
The offense level of a defend ant convicted of fraud increases proportional to the loss amount. U.S.S.G. § 2B1.1(b)(1). Subject to an exclusion inapplic able here, the loss amount is “the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 n. 3(A). Intended loss means “the pecuniary harm that the defendant purposefully sought to inflict. U.S.S.G. § 2B1.1 n. 3(A)(ii). “Actual loss is the reasonably foreseeable pecuniary harm that resulted from the offense.” United States v. Moose , 893 F.3d 951, 955 (7th Cir. 2018) (c itation and internal quotation marks omitted).
Under Federal Rule of Criminal Procedure 32(i)(3)(B), thecourt “must—for any disputed portion of the presentence report or other controverted ma tt er—rule on [a] dispute” thatNo. 19-2508 7

would a ff ect sentencing. Here, the amount of actual loss is undisputed as $149,358.35. Blake disputes the amount of intended loss. The district cour t faced two options: did Blakeintend to stop his fraud at or around $300,000, or did he intend to collect all the refunds he requested? The court chose the la tt er. Blake argues the district court made insu ffi cient fi ndingsand erred in holding him responsible for the 2008–2010 returns. He also claims the court should have found, or did fi nd, that he intended to defraud the IRS of $300,000, not more than $1.5 million. We disagree for the following reasons. First, we conclude that the dist rict court did not err in including the 2008–2010 returns in its intended loss calculation. Ample evidence supports the co urt’s calculation. Blake admitted the 2008 and 2009 returns contained his signature. Those returns, like his 2006 retu rn, included the words “authorized rep” next to his signature. They also directed the refunds be paid to Blake at his South Holland Post Office box,and repeated the same numbers for exemption, total deduction, and taxable income as all the other returns Blake filed after that. After his IRS intervi ew, Blake also filed documents purporting to pay off obligations for tax years 2009–2015. In other words, Blake took credit for the three returns he insists he never filed. These facts were presented by the government, included in Blake’s presentenc e investigation report, and relied upon properly by the court. The district court rejected Blake’s position on the 2008-2010 returns for “the reasons stated in the government and probation’s responses.” That is enough to satisfy the court’s obligations under Federal Rule of Criminal Procedure 32(i)(3). See United States v. Herman , 930 F.3d 872, 874 (7th Cir.8 No. 19-2508

2019) (“The court was entitled to adopt the government’s version of events, as set forth in th e PSR, to explain its ruling on a disputed point that had been thoroughly explored.”). The district court was under no oblig ation to accept Blake’s denial, and the record does not support his denial. So Blake’s claim of insufficient findings fails, as does his claim that the court erred in finding him responsible for the 2008–2010 returns. Second, we conclude that the district court did not err in finding that the intended loss amount exceeded $1.5 million. Blake requested refunds totaling $1,785,318 in eight false tax return filings. Responding to Blake’s intended-loss objection (that he intended to keep only $300,000) the court commented that “Blake was hiding behind outlandish theories and was fishing for whatever he could get.” The court explained that Blake was well-educated, experi enced, and “knew what he was doing ... knew the money he was seeking wasn’t his to have” and “didn’t send a request to the government for his supposed birthright share” but instead “made up a narrative of an estate earning income an d paying it out to Mr. Blake.” Notably, as the government points out, if Blake truly sought only $298,716.69, he would not have sent three returns for$300,000 on the same day in the same envelope. On this evidence and these findings, the district court did not clearly err in its intended loss calculation. Blake’s strongest argument is th at the court actually relied on his proposed $300,000 loss figu re but erred in the guidelines calculation. He bases this contention on a remark by the district court after pronouncing sentence:

Prosecutor: Judge, one question along the lines of Ms. Connor. Given the Court is inclined to lean toward the actual loss, I was just wonderingNo. 19-2508 9

if the Court’s determination on intended loss affected the sentence, or would you have reached the same sentence regardless of the intended loss objection?
Court: It’s a guideline calculation that I have to make. But in terms of sentencing itself for restitution purposes, I look at actual loss is what I tend to look at.

Prosecutor: Great. Thank you.
Court: There are two different figures running around for two different purposes. One is a guideline purpose, and I did find that the $300,000 was the figure I worked off of. But for the actual loss, it is the figure I gave subject to firming that up. At this point, I found that’s not determined but it will be.
Prosecutor: So, just to clarify, the Court would reach the same sentence regardless of how it ruled on the intended loss calculation?
Court: Yes, it would have. Based on this colloquy, Blake argues that even if the district court said it was using the $1.7 million figure and calculated the guidelines range based on that amount, the court actually “intended” to use Blake’s proposed $300,000 loss figure, so the guidelines range was miscalculated. The district court’s references in this colloquy, during a hearing which lasted a full hour, were less than fully clear.But the entirety of the court’s sentencing remarks help us resolve this issue.10 No. 19-2508

When the district court re ferred to $300,000 during thiscolloquy, it had already rejected Blake’s claim that he intended to stop at $300,000. In this rejection the court spoke at length about Blake’s efforts to secure more than $1.5 million in refunds. The court stated that Blake “was hiding behind outlandish theories and was fishing for whatever he could get.” The court declared “Blake was just seeing how far he could push it” and “would have ke pt going as far as he could” until someone said “you can’t go any further.” And on top of the nearly $150,000 Blake had received, the court explained that: He had filed similarly bogus returns for four years prior to the instant offense and for two years afterwards. ... [H]uman experience tells me that the outlandish theories about the trust account upon one’s birth and the government owing everybody money are just a shield to hide behind in case one is caught.

As I stated earlier, and it is worth repeating, he knew what he was doing. He knew the money he was seeking wasn’t his to have. Had it been otherwise, he would not have had to make up lies in the forms that he filed. 1

Taken together, these comments are inconsistent with Blake’s claim that the district court found $300,000 as the intended loss amount. The court’s reference to $300,000 in the

1 Transcript of Sentencing Hearing, pp. 33-34, ECF No. 151.No. 19-2508 11

colloquy reprinted above appears to have been a slip of the tongue. That stray remark could be read as relying on the actual loss. But during the colloquy the prosecutor clari fi ed the circumstances by asking the dist rict court about the reasoning for the sentence, and the district court con fi rmed that the sentence would have been the same either way.
Like United States v. Fennell , 925 F.3d 358, 362 (7th Cir.2019), “[t]he government responds, persuasively, that in context, the reference to [$300,000] was surely a slip of the tongue.” As in Fennell , the record renders immaterial any failure to mark the distinction between “intended” and “actual” loss. See id. When asked if “the Court would reach the samesentence regardless of how it ruled on the intended loss calculation,” the district court sa id “Yes, it would have.” That“unequivocal statement” shows the court “would have imposed the same sentence even if it improperly calculated” the guidelines range, rendering any error harmless. United States v. Shelton , 905 F.3d 1026, 1037 (7th Cir. 2018) (citations omitted). 2 For these reasons we affirm Blake’s sentence.
III. Ine ff ective Assistance of Counsel
After conviction Blake moved for a new trial under Federal Rule of Criminal Procedur e 33, claiming his trial counsel was ine ff ective. He alleged several de fi ciencies and requested an evidentiary hearing to determ ine their impact on this case. The district court declined Blak e’s request for an evidentiary

2 We also note that the intended loss amount Blake seeks would reduce his offense level from 24 to 20, resulting in a guidelines range of 33-41 months’ imprisonment. U.S.S.G. § 5A. Thus, even if the district court erred in its calculation, Blake received a sentence (36 months) in the low-end of the range he contends should apply.12 No. 19-2508

hearing and denied the motion. Blake appeals, arguing he was entitled to a hearing on his motion.
This court has often advised lit igants of the downsides of raising ineffective assistance ofcounsel claims on direct appeal. See United States v. Flores , 739 F.3d 337, 341 (7th Cir. 2014) (“[W]e have said many times that it is imprudent to presentan ineffective-assistance argument on direct appeal.”) (citations omitted). Because ineffective assistance of counsel claims “usually fall[] short of finding support in the originaltrial record,” these claims are best raised in collateral proceedings. United States v. Hardamon , 188 F.3d 843, 847 (7th Cir. 1999). When such claims are instead raised on direct appeal, “appellate review is limited by the plain-error standard of Fed. R. Crim. P. 52(b).” Flores , 739 F.3d at 341. Because litigants get “to argue ineffective assistance, and for that matter any other contention, just once ,” raising an ineffective assistance claim on direct appeal ma y preclude litigants from raising the same claim on collateral review. Id

. At oral argument we asked Blake’s appellate counselwhether the defense would rather have these ineffective assistance of counsel claims potentially considered on collateralreview rather than in this appeal. She responded affirmatively. Accordingly, we will dism iss that portion of Blake’sappeal without prejudice, and Blake preserves for post-conviction review his ineffective assistance claim.
IV. Conclusion
For these reasons we A FFIRM the defendant’s sentence and D ISMISS W ITHOUT P REJUDICE the defendant’s claim of ineffective assistance of counsel.