United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 13, 2006

Decided August 3, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

No. 05-2146

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MITANETTE CALVIN,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division

No. 03-CR-501-1

Amy J. St. Eve,

Judge

ORDER

Mitanette Calvin was sentenced to 63 months of imprisonment after she

pleaded guilty to mail fraud and wire fraud. On appeal she argues that the district

court should have reduced her offense level by three under an adjustment for

“partially completed” offenses because she collected only part of the money she

attempted to steal from her victims. But she is not entitled to receive the

adjustment because it does not apply to the facts of her case.

Beginning in October 2000, Calvin started offering for sale through internet

auctions items she did not possess. Using e-mail accounts opened under her own

name as well as several aliases and the names of unwitting employees, Calvin

advertised CDs, DVDs, clothing, department-store merchandise, and consumer

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2146 Page 2

1

eBay’s “buy it now” option allows buyers to avoid the auction process by

purchasing items instantly from the seller at a fixed price. 

http://pages.ebay.com/services/buyandsell/buyitnow.html. 

electronics for sale on eBay.com, uBid.com, Yahoo.com, TradeOut.com, and

RetailExchange.com. Potential buyers bid on the goods, and after the close of the

auction, Calvin instructed the highest bidder to send payment to her via check,

money order, or Western Union wire transfer. Calvin also negotiated non-auction

sales directly with other victims by telephone and e-mail. After she received

payment, she shipped goods that did not match the description or were inferior in

quality to those she advertised for auction, or she shipped nothing at all.

Calvin’s boldest misrepresentation involved advertising nonexistent

television sets for sale and auction. Between December 2001 and April 2002, Calvin

posted 157 plasma television sets on eBay, which accounted for approximately one

half of the total value of goods she posted on that site. Although eBay terminated

the auctions shortly after Calvin posted them, occasionally a person would contact

Calvin directly to “buy it now”1

 before eBay could intervene. On other occasions,

Calvin initiated contact with people who had bid on the auctions prior to eBay’s

intervention to ask whether they were still interested “in a good deal.” Although

Calvin “sold” only two of the television sets for a total of $13,500, she ultimately

quoted a price or agreed to sell television sets to 74 persons for more than $493,000.

In May 2003, a federal grand jury charged Calvin with four counts of mail

fraud, 18 U.S.C. § 1341, and four counts of wire fraud, 18 U.S.C. § 1343. Calvin

pleaded guilty to one count each of mail fraud and wire fraud. In her plea

agreement she admitted scheming to defraud buyers by misrepresenting the items

she had for sale and using the mail and wires to advance her scheme. But she

disagreed with the government over the amount of loss attributable to her and

reserved her right to present evidence on the amount of losses prior to sentencing in

the plea agreement.

The district court conducted a three-day sentencing hearing during which the

government presented largely uncontested evidence concerning the sums of money

victims sent to Calvin as well as Calvin’s communications with her victims. Eight

victims recounted sending Calvin money after winning an auction, sometimes

thousands of dollars, but received nothing in return. Four others stated they each

sent Calvin thousands of dollars and received, for example, a box of cassette tapes

or video pinball games in return. And one victim testified that, after he successfully

bid on an auction for what Calvin advertised as authentic T-Rex fossils, he never

sent payment because he could not verify the source of the fossils and thought it

“odd” that Calvin refused to accept payment by credit card. The government also 
No. 05-2146 Page 3

summarized three categories of losses attributable to Calvin. First, the government

confirmed actual funds sent to Calvin totaling $128,742. Second, the government

calculated intended losses of $232,000 based upon e-mails showing that Calvin

instructed individuals to send her money but where Calvin’s receipt of the funds

was unconfirmed. Third, the government calculated additional intended losses of

$493,000 based upon e-mails between Calvin and unsuspecting victims in which

Calvin quoted prices, negotiated terms, or agreed to sell non-existent plasma

television sets. In addition, although the government conceded that Calvin did not

succeed in collecting all of the funds she had set out to, it submitted evidence that

eBay terminated many of her auctions to protect bidders from Calvin’s fraud and

that some victims withheld payment because they suspected foul play. On

cross-examination Calvin tried to challenge the losses claimed by some witnesses,

but she presented no evidence contradicting the government’s calculations.

The district court concluded that Calvin was responsible for actual losses of

$128,742 and intended losses of $493,000. The court explained that it calculated

the intended-loss figure based upon Calvin’s correspondence with potential buyers

of plasma television sets because those transactions were “a perfect example of the

defendant’s intent to . . . take money from others.” The court then increased

Calvin’s base offense level of 6 by 14 levels to account for a total loss of $621,742. 

See U.S.S.G. § 2B1.1(a), (b)(1)(H) (2001). After other adjustments that are not in

dispute, the court calculated a total offense level of 26 and a criminal history

category of I, resulting in a guidelines range of 63 to 78 months’ imprisonment.

Calvin objected, arguing that the scheme was only “partially completed”

insofar as it involved the plasma television sets and thus her offense level should be

lowered three levels under U.S.S.G. § 2X1.1(b)(1). That guideline, which is

referenced in Application Note 13 to the 2001 version of § 2B1.1, provides for a

three-level reduction for crimes that were attempted but not completed, and then

only if the defendant had not “completed all the acts the defendant believed

necessary for successful completion of the substantive offense or the circumstances

demonstrate that the defendant was about to complete all such acts but for

apprehension or interruption by some similar event beyond the defendant’s control.” 

U.S.S.G. § 2X1.1(b)(1) (2001); see id. § 2B1.1 cmt. n.13. The district court rejected

this argument, reasoning that 2X1.1(b)(1) did not apply because the mail and wire

frauds were completed even though Calvin failed to collect all the money she

intended. The court proceeded to sentence Calvin to 32 months’ imprisonment on

the mail fraud count and a consecutive 31 months’ imprisonment on the wire fraud

count.

On appeal Calvin challenges the district court’s finding that her crimes were

complete, not partially complete. Because the district court calculated an intended

loss of $493,000 for negotiations that never resulted in payment and were not
No. 05-2146 Page 4

interrupted by law enforcement, Calvin argues, the plasma-television scam was

only “partially completed.” Thus, she says, the court should have applied

§ 2X1.1(b)(1) and decreased her overall offense level by three levels. Calvin does not

contest the district court’s computation of actual or intended losses.

We review the district court’s findings of fact for clear error, and its

application of the guidelines to the facts de novo. United States v. McCaffrey, 437

F.3d 684, 688 (7th Cir. 2006). Application Note 4 of § 2X1.1 instructs that the

sentencing court must decrease a defendant’s offense level by three levels where the

defendant has completed part, but not all, of the acts necessary for the successful

completion of the intended offense. U.S.S.G. § 2X1.1, cmt. n.4 (2001); United States

v. Torres, 209 F.3d 308, 312 (3d Cir. 2000). But the reduction does not apply when

the defendant did not complete all the elements of the offense because of

“apprehension or interruption by some similar event beyond the defendant’s

control.” U.S.S.G. § 2X1.1(b)(1) (2001); see Torres, 209 F.3d at 312. Thus the

relevant inquiry is whether Calvin completed all the acts necessary to commit the

substantive offenses of mail fraud as well as wire fraud. See United States v.

DeSantis, 237 F.3d 607, 611-12 (6th Cir. 2001).

Calvin is not entitled to the three-level reduction because she completed

every act necessary to commit the substantive offenses of mail fraud and wire fraud. 

A defendant commits mail or wire fraud when she (1) participates in a scheme to

defraud (2) with intent to defraud and (3) uses the mail or wires in furtherance of

that scheme. See United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006). By

the very nature of these offenses, the mere existence of a scheme plus the use of the

mail or an interstate wire to further the fraudulent enterprise completes the

offense. United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir. 1998); see United

States v. Carrington, 96 F.3d 1, 7-8 (1st Cir. 1996). Here Calvin devised a scheme to

swindle unwitting victims out of their money and used the mail, internet,

telephones, and e-mail to further her scheme. Moreover, Calvin pleaded guilty to

one count each of mail fraud and wire fraud, and a “defendant’s plea of guilty to the

substantive, completed offense of fraud is powerful evidence that [she] merited no

reduction for the allegedly uncompleted nature of [her] scheme.” United States v.

Strozier, 981 F.2d 281, 285 (7th Cir. 1992); see Torres, 209 F.3d at 312.

The fact that Calvin did not succeed in achieving the full amount of loss she

intended does not transform her scheme into a “partially completed” offense for

purposes of § 2X1.1. See Strozier, 981 F.3d at 285 (explaining that a fraud is not

incomplete merely because circumstances prevented the defendant from inflicting

greater loss upon the victim); United States v. Lorefice, 192 F.3d 647, 655-56 (7th

Cir. 1999); United States v. Coffman, 94 F.3d 330, 337 (7th Cir. 1996) (explaining

that even if the fraud inflicted no actual loss it is nevertheless a completed offense);

see also DeSantis, 237 F.3d at 612-13 (explaining that “the relevant substantive
No. 05-2146 Page 5

2

Other circuits concur. See, e.g., Blitz, 151 F.3d at 1011 (explaining that mail

fraud and wire fraud are “unique” because “the mere existence of the scheme plus

the use of the mail, or an interstate wire, to further the scheme” completes the

crime); Carrington, 96 F.3d at 7-8 (explaining that, unlike crimes that are complete

only after a defendant’s object has been attained, wire fraud is complete once a

defendant “devise[s] a scheme to defraud and then transmit[s] a wire

communication for the purposes of executing the scheme”).

offense for purposes of evaluating § 2X1.1(b)(1) attempts is the fraud itself, not the

fraudulent deprivation of a particular sum”); Blitz, 151 F.3d at 1011 (explaining

that for mail fraud and wire fraud “with or without the money, the offense was

complete”); Carrington, 96 F.3d at 7. Although Calvin cites several cases in support

of her contention that an offense is partially complete for purposes of § 2X1.1 when

a defendant has collected only a portion of the proceeds anticipated by the criminal

conduct, those cases more accurately demonstrate instances where a defendant has

successfully completed only a portion of the intended substantive offense. See, e.g.,

United States v. Lamb, 207 F.3d 1006 (7th Cir. 2000) (explaining that § 2X1.1

applied where inept bank burglar intended to steal entire $215,000 in bank’s vault

but brought no tools that would allow him to breach vault); United States v. Sung,

51 F.3d 92 (7th Cir. 1995) (holding that § 2X1.1 applied where the defendant

obtained some but not all materials necessary to manufacture and package

intended quantity of counterfeit goods). But mail fraud and wire fraud are far

different than burglary and counterfeiting. On the occasions that this court has

considered the application of § 2X1.1 to mail fraud and wire fraud, we have

determined that § 2X1.1 is inapplicable because of the unique nature of the

substantive offense: the crime is complete the instant the mail or wires are used to

advance a fraudulent scheme. See Strozier, 981 F.2d at 285-86; Lorefice, 192 F.3d

at 655-56; Coffman, 94 F.3d at 333-34.2

AFFIRMED.