United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued July 11, 2007

Decided July 26, 2007

Before

 Hon. RICHARD A. POSNER, Circuit Judge

 Hon. JOHN L. COFFEY, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

No. 06-4186

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

WALTER BENZING,

Defendant-Appellant.

Appeal from the United States

District Court for the Western

District of Wisconsin

No. 06 CR 111

Barbara B. Crabb,

Chief Judge.

O R D E R

Walter Benzing pleaded guilty to one count of mail fraud, perpetrated as part

of a two-episode scheme to defraud timber companies and landowners, in violation

of 18 U.S.C. § 1341. Benzing appeals his sentence of 55 months for the second

episode, arguing that the district court either should have credited him for the

19 months of prison time he served after his conviction for the first, or at least

should have explained fully why it did not do so. He also argues that this court’s

presumption that a sentence within the guidelines range is reasonable violates the

Sixth Amendment right to a jury trial, a matter the Supreme Court recently

rejected in United States v. Rita, 127 S. Ct. 2456 (2007). We affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-4186 Page 2

Benzing has been convicted twice for fraud in connection with forged timber

contracts. From January to April 2000, Benzing forged six contracts purporting to

give him permission to harvest timber on various tracts of land for a fee. He then

sold these contracts to Sitco Lumber Company for over $93,000. After Sitco made

nearly $75,000 in down payments, it discovered that the contracts were fraudulent. 

In December 2001 Benzing was convicted of interstate transportation of these

fraudulently obtained funds and was sentenced to 21 months’ imprisonment, of

which he served 19 months. 

While his criminal case was pending, and apparently unbeknownst to the

government, Benzing pursued a second fraudulent lumber contracts scheme, which

took place from September 2000 through December 2001. This time he forged

31 timber harvesting contracts and sold them to two other lumber operators for

nearly $2 million, of which he was paid $935,000. As part of the scheme, Benzing

also entered into three legitimate timber purchase contracts, which he in turn sold,

but Benzing failed to pay the landowners the required fee, even after the lumber

was harvested. On December 24, 2001, just three days after Benzing was sentenced

for his first conviction, he mailed an $18,500 personal check to one of the

landowners. The check was returned for insufficient funds and formed the basis of

Benzing’s indictment for mail fraud.

In August 2006 Benzing pleaded guilty to mail fraud. Both the government

and Benzing argued in their objections to the Presentence Investigation Report that

Benzing’s first fraud conviction was “relevant conduct” for sentencing purposes. 

Relevant conduct encompasses all actions taken by a defendant as part of a common

scheme or plan, see U.S.S.G. § 1B1.3(a)(2), and both the government and Benzing

agreed that Benzing’s frauds were two parts to a single scheme. Benzing further

argued that his sentence should be reduced by the 19 months that he served for the

previous offense to avoid punishing him twice for the same course of conduct. The

government disagreed.

At sentencing the district court determined that Benzing’s prior fraud offense

was relevant conduct. The court calculated an offence level of 22 and applied a

criminal history category of III—the designation of Benzing’s prior conviction as

relevant conduct reduced his criminal history category from IV to III—resulting in a

guidelines range of 51 to 63 months’ imprisonment. Since the statutory maximum

penalty was five years, the court noted that the top end of his range was restricted

to 60 months. Benzing did not disagree with the guidelines range but continued to

argue that his sentence should be reduced by 19 months to credit him for time

served on the related fraud charge. Put another way, Benzing argued that he was

entitled to a sentence functionally concurrent with his earlier sentence. The

government strenuously objected that doing so would reward repeated bad conduct. 

After hearing these arguments, the court observed that Benzing’s “repetitive frauds
No. 06-4186 Page 3

suggest a likelihood that you will commit future crimes but your law-abiding

conduct in the years since you were released from prison indicate that you’ve

changed your life and behavior significantly.” It then sentenced Benzing to

55 months’ imprisonment, a term in the middle of the guidelines range.

On appeal Benzing first argues that the district court abused its discretion by

neglecting to consider his argument that his sentence should be reduced by the

amount of time he already served for relevant conduct. Second, he contends that to

the extent that the court considered and rejected his argument, it improperly failed

to articulate its rationale. In particular, Benzing appears to claim that the district

court ignored 18 U.S.C. § 3553(a)(5) because it failed to consider policy statements

in sentencing guidelines, such as section 5K2.23. That section authorizes a

sentencing court to reduce a sentence in certain circumstances if the defendant has

already completed a prison term for relevant conduct. Benzing claims that those

circumstances apply here. 

Benzing’s first claim is that the sentencing court did not consider his request

that he be credited for the time served for the earlier, admittedly “relevant” fraud. 

But the record indicates otherwise. From the transcript of the sentencing hearing,

it is evident that the district court heard both Benzing’s argument that because his

earlier sentence was based on a conviction for relevant conduct, he should receive a

credit, and the government’s argument that a reduction in Benzing’s sentence

would reward him for repeated criminal conduct. The court agreed that Benzing’s

first fraud scheme was indeed conduct relevant to the current mail fraud charge

and reduced Benzing’s criminal history category accordingly. But the court did not

grant the sentencing credit. This exchange suggests that the court entertained and

simply rejected Benzing’s request for a sentencing credit.

This brings us to Benzing’s second argument: that the district court

improperly neglected to explain why it refused to credit his earlier sentence. A

sentencing court is required to consider the 3553(a) factors and articulate its

reasons for the sentence, see United States v. Rodriguez-Alvarez, 425 F.3d 1041,

1046 (7th Cir. 2005). If it is clear from the record that the district court gave

meaningful consideration to the 3553(a) factors, then the court need not expressly

discuss each of them, see United States v. Williams, 425 F.3d 478, 480 (7th Cir.

2005), but a district court abuses its discretion if it fails to discuss a “potentially

meritorious argument” concerning the applicability of the sentencing factors raised

by the defendant, see United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.

2005). 

Recently, the Supreme Court has commented on just how explicitly a

sentencing court must explain its rationale for rejecting a defendant’s argument for

a reduced sentence. In United States v. Rita, 127 S. Ct. 2456 (2007), the Court
No. 06-4186 Page 4

noted that it is important for the sentencing judge to set forth his reasons for

imposing a particular sentence “to satisfy the appellate court that he has considered

the parties' arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Id. at 2468. The amount a judge must say is based on

the particular circumstances of the case. Id. Because the record in Rita reflected

that the judge considered the defendant’s arguments, the Court held that given the

simplicity of the issues involved, a more thorough explanation of the reasons for

rejecting the arguments was not warranted. Id. at 2469. 

Here, the district court provided an adequate explanation for rejecting

Benzing’s argument. Specifically, after Benzing urged the court to credit him for

the earlier sentence, the court observed that Benzing’s multiple fraud schemes

indicated a propensity for future criminal misconduct. This observation indicates

the court’s assessment that Benzing’s repetitive offenses warranted an increased,

not decreased, sentence.

Furthermore, Benzing’s argument is not “potentially meritorious,” and thus,

it was not necessary for the district court to reject it explicitly. See Cunningham,

429 F.3d at 678 (sentencing court need not discuss nonmeritorious arguments); cf.

Rita, at 2468 (when nonfrivolous arguments for an outside-guidelines sentence are

presented, a district court generally will explain why it has rejected them). 

Benzing’s argument for a functionally concurrent sentence easily fails under the

policy statements of the guidelines. A defendant is entitled to a concurrent

sentence if (1) he is serving an undischarged prison term for an earlier, relevant

offense and (2) consideration of the earlier, relevant conduct increased the sentence

of his current conviction. U.S.S.G. § 5G1.3(b). Sentencing Commission policy also

gives the sentencing court discretion to reduce the sentence of a defendant who has

already been discharged from prison if section 5G1.3(b) would apply were the

defendant serving a prison term at the time of sentencing. See U.S.S.G. § 5K2.23. 

But by the express terms of section 5G1.3(b), a defendant is not entitled to a

concurrent sentence for relevant conduct if section 5G1.3(a) applies; that is, “[i]f the

instant offense was committed . . . after sentencing for, but before commencing

service of” another term of imprisonment. U.S.S.G. § 5G1.3(a). In that case, the

sentences are to run consecutively. Id. Here, Benzing committed his mail fraud

offense on December 24, 2001—just three days after he was sentenced for his first

fraud scheme—taking his second offense squarely outside of the scope of section

5G1.3(b) and thus outside of the section 5K2.23 policy statement. In other words,

had Benzing’s first sentence not been fully discharged when he was sentenced for

his second offense, sentencing policy would have urged a consecutive, not a

concurrent, sentence. See United States v. Dote, 328 F.3d 919, 925 n.3 (7th Cir.

2003) (noting that Sentencing Commission policy calls for consecutive sentences

(i.e., no credit) when the defendant commits another crime after being sentenced on
No. 06-4186 Page 5

relevant conduct). Thus, under the terms of the Sentencing Commission policy,

Benzing does not deserve a credit that would amount to a functionally concurrent

sentence.

Benzing also argues that presuming a sentence within the guidelines range

to be reasonable is inconsistent with United States v. Booker, 543 U.S. 220 (2005). 

But the Supreme Court has recently decided that Courts of Appeals may apply a

rebuttable presumption that a within-guidelines sentence is reasonable and that

doing so does not violate the Sixth Amendment. See Rita, at 2462-65. Besides his

argument for a sentencing credit, Benzing presented no other argument that his

sentence was unreasonable. In any event, the record reflects that the sentence is

reasonable because the district court appropriately considered and applied the

18 U.S.C. § 3553(a) factors. See United States v. Vaughn, 433 F.3d 917, 925 (7th

Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The district

court expressed “concern[ ] about the repetitive crimes that [Benzing] engaged in.” 

But it also found significant that he had behaved well after his discharge from

prison. It concluded that a 55-month sentence was “necessary to protect the

community from criminal acts on [Benzing’s] part while [he is] incarcerated, reflect

the seriousness of [his] crimes, and hold [him] accountable for those crimes.” 

The district court considered Benzing’s argument for a reduced sentence, and

especially given the argument’s lack of merit, adequately discussed its reasons for

imposing a 55-month sentence. And, this sentence was reasonable. 

AFFIRMED.