In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2508 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

AIRRION S. BLAKE, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division 

No. 2:16-cr-00074 — Joseph S. Van Bokkelen, Judge. 

____________________ 

ARGUED MAY 13, 2020 — DECIDED JULY 13, 2020 

____________________ 

Before RIPPLE, BARRETT, and BRENNAN, Circuit Judges. 

BRENNAN, Circuit Judge. A defendant convicted of tax 

fraud challenges his sentence, disputing the loss amount 

which set the applicable range for his case under the Sentencing Guidelines. The district court did not commit reversible 

error, so we affirm the defendant’s sentence. 

The defendant also appeals the denial of his claim of ineffective assistance of trial counsel. Because on direct appeal 
2 No. 19-2508 

such a claim is limited to the original 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 a 

college graduate with a master’s degree in business administration. Even so, he claims unnamed users in internet chat 

rooms 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 pretense 

Blake 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 filed a return for the 2006 tax year, claiming 

he was entitled to a $297,886 refund based on $334,565 in 

gross income and $303,063 in income tax withheld. As support for those figures, Blake attached pages of bogus forms, 

purporting to show that he withheld 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 filed 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 filed returns 

for the 2009 and 2010 tax years with the same figures. Each 

return included Blake’s South Holland, Illinois post office box 
No. 19-2508 3 

and was filed using an employee identification number set up 

in 2011 for the “Airrion S. Blake Cesti Que Tr.” 

In 2012, Blake filed a return for the 2011 tax year, leading 

to his criminal indictment. On this return he obtained and 

used a different employee identification number for the “Airrion Socrates Blake Estate.” He also represented that that estate earned $298,716 for the 2011 tax year, paid fiduciary fees 

in the same amount, and withheld $149,358 (half of the previous figure) in taxes. Blake sought a refund of $149,358.35, and 

his gambit paid off: the Internal Revenue Service issued the 

refund requested. 

In 2013, Blake filed 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 filed a 

return for the 2013 tax year seeking a $139,358 refund based 

on the same fraudulent information as the 2011 and 2012 returns, less $10,000 in the withholding and refund figures. 

Later in 2014, Blake filed a second return for the 2012 tax year, 

using the same fraudulent information and seeking the same 

$149,358 refund as the first 2012 return. The following table 

summarizes Blake’s eight false tax returns, the refunds he requested, and the IRS’s responses: 

Tax Year Refund Sought IRS Paid Out 

2006 $297,886 No 

2008 $300,000 No 

2009 $300,000 No 

2010 $300,000 No 
4 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 returns. He told the agents 

that he had control of the post office box used on the 

2008-2010 returns, but he denied ever seeing those filings. He 

also told them that the 2008 and 2009 returns contained handwritten signatures that resembled his signature, but he denied 

any 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 ... submitted for the tax period 

2008-2015.” Blake also sent what he claimed was a $200,000 

promissory note to “offset/discharge” 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 for presenting a false or fictitious claim to a United States agency, 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 the 
No. 19-2508 5 

stand and told the jury that he prepared and filed the 2011 tax 

year return. He also testified that the estates listed in the returns neither earned the income represented nor paid any fiduciary fees. But he claimed his filings were valid because he 

filed his returns with a “disclaimer” 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 offense 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 offense level was 24, and with a criminal history category 

of I, Blake’s advisory sentencing 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 intended 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 exceeded $1.5 million, resulting in a 

16-level increase in the guidelines offense level.

II. Calculation of Intended Loss

A. Standard of Review 

The 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 definite and firm 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 omitted); United 

States v. Riley, 493 F.3d 803, 810 (7th Cir. 2007) (defendant 

must show loss calculation was not only inaccurate but outside realm of permissible computations) (quotation marks 

and citation omitted). 

B. Discussion

The offense level of a defendant convicted of fraud increases proportional to the loss amount. U.S.S.G. § 2B1.1(b)(1). 

Subject to an exclusion inapplicable 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) (citation and internal quotation marks omitted). 

Under Federal Rule of Criminal Procedure 32(i)(3)(B), the 

court “must—for any disputed portion of the presentence report or other controverted matter—rule on [a] dispute” that 
No. 19-2508 7 

would affect sentencing. Here, the amount of actual loss is undisputed as $149,358.35. Blake disputes the amount of intended loss. The district court faced two options: did Blake 

intend to stop his fraud at or around $300,000, or did he intend to collect all the refunds he requested? The court chose 

the latter. 

Blake argues the district court made insufficient findings 

and erred in holding him responsible for the 2008–2010 returns. He also claims the court should have found, or did find, 

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 district court did not err in including the 2008–2010 returns in its intended loss calculation. 

Ample evidence supports the court’s calculation. Blake admitted the 2008 and 2009 returns contained his signature. 

Those returns, like his 2006 return, 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 interview, 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 presentence 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 the PSR, to explain its ruling on 

a disputed point that had been thoroughly explored.”). The 

district court was under no obligation 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, experienced, 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 and 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 that the court actually relied 

on his proposed $300,000 loss figure 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 wondering 
No. 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 referred to $300,000 during this 

colloquy, 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 kept 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 clarified the 

circumstances by asking the district court about the reasoning 

for the sentence, and the district court confirmed 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 same 

sentence regardless of how it ruled on the intended loss calculation,” the district court said “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. Ineffective Assistance of Counsel 

After conviction Blake moved for a new trial under Federal Rule of Criminal Procedure 33, claiming his trial counsel 

was ineffective. He alleged several deficiencies and requested 

an evidentiary hearing to determine their impact on this case. 

The district court declined Blake’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 litigants of the downsides of 

raising ineffective assistance of counsel 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 present 

an ineffective-assistance argument on direct appeal.”) (citations omitted). Because ineffective assistance of counsel 

claims “usually fall[] short of finding support in the original 

trial 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 may preclude litigants from raising the same claim on collateral review. Id. 

At oral argument we asked Blake’s appellate counsel 

whether the defense would rather have these ineffective assistance of counsel claims potentially considered on collateral 

review rather than in this appeal. She responded affirmatively. Accordingly, we will dismiss that portion of Blake’s 

appeal without prejudice, and Blake preserves for post-conviction review his ineffective assistance claim. 

IV. Conclusion

For these reasons we AFFIRM the defendant’s sentence and 

DISMISS WITHOUT PREJUDICE the defendant’s claim of ineffective assistance of counsel.