United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 5, 2005

Decided May 11, 2005

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

 Hon. MICHAEL S. KANNE, Circuit Judge

 Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 04-3486 & 04-3487

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID J. RENNICKE and CRYSTAL

D. RENNICKE,

Defendants-Appellants.

Appeals from the United States

District Court for the Southern

District of Illinois.

No. 03 CR 30225

G. Patrick Murphy, 

Chief Judge.

O R D E R

David and Crystal Rennicke lied to the Department of Veterans Affairs and the

Social Security Administration about being wheelchair-bound , thus reaping $185,000

in disability benefits plus equipment and grants intended to make their home and

vehicles handicapped-accessible. After a joint trial, a jury found the Rennickes guilty

of conspiracy to commit wire and mail fraud by making false statements to the

Department of Veterans Affairs, 18 U.S.C. §§ 371, 1341, 1343, and knowingly making

false statements to the Department of Veterans Affairs and the Social Security

Administration, id. § 1001(a)(2). The district court sentenced the Rennickes each to

the statutory maximum of 60-months’ imprisonment on each count, to run

concurrently, 3 years’ supervised release, and to pay $185,114 in restitution. The

Rennickes filed notices of appeal, but both their appointed lawyers now seek to

withdraw because they cannot find a nonfrivolous basis for appeal. See Anders v.

California, 386 U.S. 738 (1967). Pursuant to Circuit Rule 51(b), the Rennickes

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
Nos. 04-3486 & 04-3487 Page 2

received notice of counsel’s motions but did not reply. The attorneys’ consolidated

Anders brief is facially adequate, so we limit our review to the potential issues the

lawyers identify. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per

curiam). We agree with counsel that those potential arguments would be frivolous

and thus grant their motions to withdraw.

Evidence at trial revealed that, from September 1999 to the discovery of the

fraud in the spring of 2003, the Rennickes repeatedly lied to employees of the

Department of Veterans Affairs and the Social Security Administration, telling them

that either David or Crystal was confined to a wheelchair and that the other spouse

was the sole caregiver. The jury found the Rennickes guilty in a general verdict, but

did not determine the total amount of loss.

Before preparation of the presentence reports and sentencing, the Supreme

Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), which holds that facts,

except for prior convictions, that increase a “statutory maximum” must be admitted

or proven beyond a reasonable doubt to a jury, and we interpreted Blakely to apply to

the United States Sentencing Guidelines in United States v. Booker, 375 F.3d 508

(7th Cir. 2004). The probation officer still relied on the sentencing guidelines in her

presentence reports to arrive at an imprisonment range for both defendants of 21 to

27 months. That range was calculated after basing a 10-level upward adjustment on

a loss amount of $185,114. See U.S.S.G. § 2B1.1(a)(2), (b)(1)(F) (2003). The

Rennickes raised a Sixth Amendment objection under Blakely to the loss calculation,

arguing that the jury had not found the amount beyond a reasonable doubt. The

government, meanwhile, filed its own objection, arguing that the intended loss

exceeded $2.5 million because the Rennickes would have continued to receive benefits

had their fraud not been discovered, and so the imprisonment range should be from

63 to 78 months. The government urged the court to sentence the Rennickes to 63

months by imposing partially consecutive sentences as mandated by U.S.S.G.

§ 5G1.2(d) to reach a minimum range.

During sentencing the district court recognized the Sixth Amendment problem

identified first in our Booker decision and later by the Supreme Court when it

affirmed our judgment, see United States v. Booker, 125 S. Ct. 738 (2005). 

Consequently, the district court proceeded as though the guidelines were defunct and

it was bound only by the prescribed statutory limits. The court thus settled on 60

months’ total imprisonment for each defendant, citing the “ugly” facts of the case in

explanation. But recognizing that the Supreme Court might well uphold the

guidelines as mandatory, the district court also announced an alternative, guideline

sentence of 63 months’ imprisonment for both Rennickes. That sentence was based

on the court’s adoption of the government’s recommendations for a loss amount

exceeding $2.5 million, and for a “sophisticated means” adjustment under U.S.S.G.

§ 2B1.1(b)(8)(C) (2003).
Nos. 04-3486 & 04-3487 Page 3

In their Anders brief, counsel consider disputing the sufficiency of the evidence

but suggest that the trial produced overwhelming evidence of the fraud that the

Rennickes perpetrated to receive government disability benefits. We agree. Several

employees of the affected government agencies testified to statements that both

David and Crystal Rennicke made during medical exams and interviews, as well as in

applications they completed and mailed, about David Rennicke’s inability to walk. 

Other agents testified to separate claims Crystal Rennicke made that she could not

walk. Eyewitnesses, including a social security employee, a car salesman, and an

investigator for the Department of Veterans Affairs, all recounted seeing both David

and Crystal Rennicke on separate occasions walking unassisted without the use of a

wheelchair. The investigator even videotaped David Rennicke doing intensive yard

work. With this overwhelming evidence of guilt, an argument that no rational trier

of fact could have found the essential elements of the crimes beyond a reasonable

doubt would be frivolous. See United States v. Gardner, 238 F.3d 878, 879 (7th Cir.

2001) (standard for sufficiency of the evidence).

Counsel for Crystal Rennicke next contemplates whether she could argue that

the district court abused its discretion in denying her motion to be tried separately. 

But counsel correctly recognizes that Crystal Rennicke would not be able to show

actual prejudice that deprived her of her right to a fair trial. See United States v.

Souffront, 338 F.3d 809, 828 (7th Cir. 2003). None of David Rennicke’s post-arrest

statements implicating his wife were admitted at trial. Instead, only pre-arrest

statements made in furtherance of the Rennickes’ conspiracy were admitted, and this

would have been permissible as nonhearsay regardless whether the trials had been

severed. See United States v. Handlin, 366 F.3d 584, 591 (7th Cir. 2004) (because

coconspirators’ statements could have been introduced as nonhearsay in separate

trials, no prejudice from failure to sever). In any event, Crystal Rennicke did not

renew her motion to sever at the close of evidence, so she would have waived the

argument. See United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002). The

argument would be frivolous.

In addition, counsel contemplate challenging the Rennickes’ sentences under

Booker but conclude that the district court was “constrained only by the applicable

statutory sentencing range,” which the Rennickes received. We agree with counsel as

far as their conclusion that an argument under Booker would be frivolous, but our

reasoning diverges. The Supreme Court in Booker did not return to district courts

the complete sentencing discretion that they enjoyed preguidelines; rather, the

guidelines “continue to inform the district judges’ decisions,” and those courts must

still consider the factors listed in 18 U.S.C. § 3553(a). United States v. George, 403

F.3d 470, 472 (7th Cir. 2005); see Booker, 125 S. Ct. at 757. In this case, the district

court erred in proceeding as though the guidelines were entirely defunct when

sentencing the Rennickes. But, because the court imposed sentences that were three
Nos. 04-3486 & 04-3487 Page 4

months less than the minimum term designated by the guidelines, and those

guidelines were correctly calculated, any error would be harmless. See George, 403

F.3d at 473 (finding harmless error where court failed to consider guidelines but

nevertheless imposed sentence lower than guideline range). Relying on the

government’s intended-loss calculation rather than the probation officer’s calculation

of actual loss, the district court properly increased the Rennickes’ sentences based on

an intended future loss of $2.5 million under the assumption that they would not

have discontinued their scheme until caught. See U.S.S.G. § 2B1.1 cmt. n. 3 (loss is

greater of actual loss or intended loss). Although the probation officer did not rely on

the amount of the intended loss for fear that it was too speculative, we have upheld a

similar intended loss calculation where the defendants ended the scheme only

because they were caught. See United States v. Rettenberger, 344 F.3d 702, 708-09

(7th Cir. 2003). Likewise the court’s “sophisticated means” adjustment under

U.S.S.G. § 2B1.1(b)(8)(C) is also supported by the similar facts of Rettenberger and its

application there. See id.

The court then lawfully imposed partial consecutive sentences beyond the fiveyear statutory maximum for the conspiracy offenses, see 18 U.S.C. § 371, in order to

reach the resulting guideline range of 63 to 78 months for each defendant. Courts

may choose to impose consecutive sentences to the extent necessary to reach the

guideline range in accordance with U.S.S.G. § 5G1.2(d). See United States v. Noble,

299 F.3d 907, 909 (7th Cir. 2002) (imposing consecutive sentences above statutory

maximum to reach guideline range under § 5G1.2(d) is lawful). Because the

Rennickes were each convicted of multiple counts, allowing consecutive sentences,

the district court correctly considered the range to be 63 to 78 months for each

defendant when deciding to depart downward three months when imposing 60-month

sentences. And, based on this downward departure from a properly calculated

sentence, no principled argument could be made that the Rennickes’ sentences were

unreasonable even though the district court acted as if it retained its preguidelines

discretion. See George, 473 F.3d at 473 (where guidelines range is properly

calculated, “[i]t is hard to conceive of below-range sentences that would be

unreasonably high”); see also Booker, 125 S. Ct. at 765-66 (appellate courts should

review sentences for reasonableness).

Finally, counsel consider a potential argument based on ineffective assistance

of trial counsel for failing to convince the jury that the Rennickes were not guilty. 

But, as counsel recognize, claims about trial counsel’s ineffectiveness are better saved

for collateral review where the record is directed toward examining the reasons

underlying counsel’s choices and tactics. See United States v. Rezin, 322 F.3d 443,

445 (7th Cir. 2003).

We therefore grant counsel’s motions to withdraw and dismiss both appeals.