### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3494

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D EAN D. Y OUNG

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 16

‐ CR

‐ 169

— William C. Griesbach

, Chief Judge

.

____________________

A RGUED S EPTEMBER 21, 2018

— D ECIDED N OVEMBER 6, 2018

____________________

Before W OOD

, Chief Judge

, and F LAUM and H AMILTON

, Cir

‐

cuit Judges

.

H AMILTON

, Circuit Judge

. Defendant

‐ appellant Dean

Young pleaded guilty to one count of wire fraud, 18 U.S.C.

§ 1343, for defrauding the Veterans Administration (VA) re

‐ garding the extent of his service

‐ related injuries. The district

court sentenced Young to 21 months in prison, in the middle

of the Sentencing Guideline range calculated based on the loss

amount agreed to by the parties and adopted by the court.2 No. 17

‐ 3494

Young appeals his sentence, arguing that the district court

commi tt ed a “plain error” by using the stipulated loss amount

of $201,521.41 to calculate both his guideline range and the

amount of restitution. We a ffi rm. Young waived any objection

to the loss amount. This was not merely a forfeiture—an in

‐

advertent failure to raise an important issue—but rather an

intentional waiver that was part of a broad compromise of po

‐ tentially disputed sentencing issues. We hope this opinion

might help illustrate the di ff erence between waiver and for

‐

feiture.

I. Factual and Procedural Background

A. Defendant’s Military Service

Defendant Young enlisted in the United States Army in

1977. During a training exercise the following year, he suf

‐

fered a back injury when his jeep crashed into an unmarked

tank trap. Young later took part in a 1979 parachute training

exercise. Many years later, he claimed that he was trauma

‐

tized when he witnessed a fellow soldier’s death in the jump.

By early 1981, Young had been honorably discharged from the

Army.

Over the following decade, Young worked in various po

‐

sitions manufacturing yachts, packaging goods, and operat

‐ ing a boiler. Starting in 1984, after he denied having any med

‐

ical or mental health conditions, Young also enlisted in the

Wisconsin Army National Guard. He was discharged from

the National Guard under “general conditions” in 1989.

B. Disability Compensation

In 1990, Young fi led his fi rst claim with the VA for com

‐ pensation for his back injuries from the jeep accident. Young

was awarded a 10% disability rating for his back pain, whichNo. 17

‐ 3494 3

resulted in small monthly payments. Another decade passed

before Young sought a new disability assessment from the

VA, claiming he was unable to bend over to put on socks or

tie shoes, could no longer canoe or hunt, and had to change

jobs due to his back pain. In May 2002 the VA increased

Young’s payments to re fl ect a 20% disability rating, with an

e ff ective date of July 30, 2001.

Within a month, Young petitioned for another increase in

disability rating, claiming for the fi rst time a mental health

disability: service

‐ related depression as a secondary condi

‐

tion to back pain. The following month Young sought a fur

‐

ther compensation increase due to “unemployability.” In No

‐

vember 2002, Young fi led his fi rst claim asserting that he suf

‐

fered from Post

‐ Traumatic Stress Disorder (PTSD), due pri

‐ marily to having witnessed the fatal parachute accident and

his jeep accident. The VA concluded that Young should re

‐

ceive a combined 40% disability rating for the back problems

and PTSD. Young appealed, and in November 2003, he pre

‐

vailed. The VA increased his disability rating to 70% for his

PTSD and 60% for his back injuries. The VA also granted his

request for a fi nding that he was unemployable. He was as

‐ signed a combined 100% compensation rate e ff ective as of

June 2002.

Young did not stop there. In 2004 he sought additional VA

compensation, primarily in the form of a grant to adapt his

house to accommodate his allegedly increasing disability. The

VA denied his request, noting that he did not need assistive

devices such as a cane, braces, or a wheelchair. In his 2005 ap

‐ peal of that denial, Young asserted that he in fact did need two

canes to assist with walking and that he was using a wheel

‐

chair. This appeal was denied, so Young appealed again in4 No. 17

‐ 3494

2006, adding to his narrative the claim that he was con fi ned to

a wheelchair and depended on his wife’s help for all daily ac

‐

tivities, such as showering. The VA again increased Young’s

disability compensation, but remanded the grant request due

to inconsistencies between Young’s stated needs and the re

‐

sults of the VA’s medical examinations. Young appeared in a

wheelchair for two later examinations. His adaptive housing

grant was awarded in 2008.

Young remained satis fi ed with his compensation level un

‐

til 2013, when he requested another increase, as well as “Aid

and A tt endance bene fi ts” to pay for help with daily activities.

Young’s le tt er to the VA represented that he was 100% disa

‐

bled and that his wife cared for all his daily needs. To support

that request, Young had a physical examination at the VA Mil

‐

waukee o ffi ce. He told the doctor that he could not walk be

‐ yond a few steps. The examining doctor noted the discrep

‐

ancy between Young’s claimed limitations and the more mod

‐

est injuries observed in the medical examination. The doctor’s

suspicions were con fi rmed. After the appointment, he

watched Young walk across the parking lot with a normal

gait, fold up the wheelchair, and load it into his van. The doc

‐

tor promptly reported his concerns to VA investigators. 1

Investigators quickly obtained video recordings of Young

moving around his apartment building without a cane or

wheelchair. The apartment manager reported that he had not

seen Young use a cane or wheelchair, even during Young’s

regular walks with his dog. As the investigation progressed

1 Later that day, Young received one of his fraudulently inflated benefit

payments via wire transfer, which established the basis for the wire fraud

count of conviction.No. 17

‐ 3494 5

into 2014, the VA obtained more video recordings of Young

walking through stores and a casino, carrying bags of ice and

cases of beverages, and jointly unloading a large, wheeled

tool box from a pick

‐ up truck—all without a cane or wheel

‐

chair.

As the VA gathered this evidence, Young sought even

more compensation based on his purported reliance on a

wheelchair and canes, including a housing grant to remodel

his kitchen to install a bathroom, a ramp, and wheelchair lift.

The VA denied the requested housing grant. In 2015, the VA

sent Young a “due process le tt er” notifying him of the inves

‐ tigation and the agency’s intention to revoke his bene fi ts. Af

‐

ter receiving evidence and holding a hearing, the VA issued a

decision in February 2016 that Young’s past statements re

‐ garding his PTSD and the severity of his back injury were

“considered to be fraudulent.” As a result, the VA revoked

Young’s unemployability rating, eliminated his compensation

payments for PTSD, and reduced his back injury compensa

‐

tion payments to re fl ect a 20% disability level, e ff ective July

31, 2001, the date from which the 60% evaluation had previ

‐ ously been assigned.

C. The Criminal Case

On October 25, 2016, a federal grand jury indicted Young

on fi ve counts of wire fraud alleging that his false claims of

PTSD and back injury exaggerations allowed him to obtain

improperly more than $400,000 in VA funds. This loss esti

‐

mate was based on Young’s receipt of a total of $457,858.70 in

VA bene fi ts between August 2001 and the VA’s February 2016

decision that reduced his disability rating from 100% to 20%

and terminated his unemployability rating and PTSD

‐ related

bene fi ts. If Young had been compensated at the 20% disability6 No. 17

‐ 3494

level during that same time period, he would have received

only $40,506.41.

Young’s a tt orney promptly sought to obtain Young’s

Army medical and service records, moving to adjourn the

court conference and trial dates. At court status conferences

over the next several months, Young’s a tt orney explained that

he was reviewing medical records, meeting with the prosecu

‐

tor, and considering the possibility of an agreed guilty plea.

In August 2017, Young agreed to plead guilty to one count of

wire fraud. As part of the plea agreement, he did not admit to

a loss amount of over $400,000. Instead, the plea agreement

stated: “Young agrees that as a result of this fraud scheme in

‐ volving his back disability that he was overpaid $201,521.41.”

Young further agreed “that the restitution ordered will in

‐

clude all overpayments made to the defendant by the VA dur

‐ ing the entire time period set forth in the indictment,” and that

“[t]he parties agree that this amount is $201,521.41.” At the

change

‐ of

‐ plea hearing, the district judge con fi rmed the

$201,521.41 loss and restitution amount with Young and his

a tt orney.

The di ff erence of approximately $200,000 between the

charged amount of loss and the amount to which Young ad

‐

mi tt ed in the plea agreement was the product of extensive ne

‐ gotiations. Young himself was actively involved in those ne

‐ gotiations. As described in Young’s later sentencing memo

‐

randum, discovery had been a “laborious process” of

“[f]inding witnesses and obtaining old records,” as well as re

‐ viewing “thousands of pages of medical records, rating deci

‐

sions, appeals, supporting materials, and army records, all

covering a span of time going back to 1977.” In the change

‐ of

‐ plea hearing, the judge sensed some hesitation from YoungNo. 17

‐ 3494 7

and asked him about it. Young’s a tt orney explained that “the

way the case began is signi fi cantly di ff erent in terms of fi nan

‐

cial numbers than the way it is now,” and that he and Young

had a “long history [ ] going through all of the discovery ma

‐

terials and, frankly, some contentious discussions

... about

how we get to where we are and what the proof might be at a

trial, and what the likely result could be.”

After listening to his a tt orney’s explanation, Young asked

whether the judge would “review all of the information that

we submi tt ed and the VA submi tt ed and all of that stu ff .” The

judge assured him that “there will be a very comprehensive

Presentence Report,” he would “read that, and then your at

‐

torney and you will have the right to submit other relevant

evidence that you think bears on sentencing.”

The presentence report explained the compromise over

the loss and restitution calculation: the government agreed

not to include PTSD

‐ related payments in the loss or restitu

‐

tion amounts, leaving Young responsible for the $201,521.41

in overpayments for his fraudulent exaggerations of his back

injury. In his sentencing memorandum, Young provided the

clearest explanation of how this key issue was resolved:

The parties discussed the case at length

... and

went back and forth regarding the merits and

di ffi culties of a trial for both sides. The govern

‐

ment’s evidence regarding the extent of the de

‐

fendant’s back injury was strong, particularly

audio

‐ visual evidence of the defendant ambu

‐ lating without a cane or wheelchair after saying

he needed either or both to do anything. On the

other hand, the defendant’s evidence about the

in

‐ service parachute accident

‐ related PTSD was8 No. 17

‐ 3494

also strong. The problem for both sides was

whether (and how) a jury could separate the ev

‐

idence into two tracks when the fraud charges

(wire fraud) are all the same.

Rather than go through a long and complex trial

with its associated risks, the parties were able to

se tt le the case by separating the tracks of the

case (back injury and PTSD) from each other.

The defendant would plead to one count and

agree to restitution regarding improper bene fi ts

based on any back injury rating over 20%. For

the government’s part, it would agree to not

pursue restitution for the portion of the defend

‐

ant’s bene fi ts a tt ributable to PTSD. Upon con

‐

sultation, the VA was able to separate the bene

‐

fi ts a tt ributable to each claim. Originally, the

loss amount for both tracks was set at

$417,352.29. With the PTSD bene fi ts subtracted,

the remaining loss amount a tt ributed to the

back injury portion of the case was $201,521.41.

The parties used this fi gure to calculate the

guideline range and the amount of restitution.

Young’s a tt orney reported at the sentencing hearing that

“we don’t have any objections to the report or the Guideline

calculations” because the assigned probation o ffi cer had

made Young’s requested “simple factual changes” and had

included “some additional records

... [in] the fi nal version of

the report.” After hearing those assurances, the district court

“adopt[ed] the factual statements in the Presentence Report

as [its] Findings of Fact and

... adopt[ed] the Guideline calcu

‐

lation.”No. 17

‐ 3494 9

Young’s a tt orney again referred to the compromise’s ra

‐

tionale later in the sentencing hearing when he argued for a

sentence shorter than that recommended by the government.

His a tt orney said it was di ffi cult to say where Young “speci fi

‐ cally crossed that line from a legitimate dispute about an en

‐

titlement to an illegitimate one.” Thus, he argued, the court’s

sentence should re fl ect that “a good enough objective point to

tell where [Young’s actions] became fraudulent is where the

investigation started

... in 2013,” when the VA doctor de

‐

tected Young’s ongoing fraud. Young’s a tt orney noted that

the parties were “really not that far apart” on recommended

sentences because they had “spent a great deal of time look

‐ ing at all of the records

... and ge tt ing to a point where there

was a legitimate place to compromise to avoid a trial.” Thus

“the parties essentially agree[d] that a sentence should be im

‐ posed

... [but] just di ff er[ed] slightly on the length of that

[sentence].”

The judge was not persuaded by the argument for addi

‐

tional leniency. He reasoned that a longer sentence was justi

‐

fi ed by “the need for punishment and the need to deter oth

‐

ers,” as Young had stolen a “signi fi cant amount of money”

involving “public funds intended for the injured veterans.”

Young had perpetrated a “massive and blatant fraud” by “ly

‐ ing about [his] functional ability

... for years.” The judge ob

‐

served that “the thing about when somebody lies in such a

blatant ma tt er as that [it] calls into question all of the other

statements he’s made right from the beginning,” especially

because Young had reported upon entering the National

Guard in 1984 “that he had no physical or mental problems.”

It is hard to disagree with any of those observations. The court

imposed a sentence of 21 months, in the middle of the guide

‐

line range based on the agreed loss amount of $201,521.41.10 No. 17

‐ 3494

The court also ordered restitution in the agreed amount of

$201,521.41.

II. Analysis

On appeal, Young does not deny his fraud, but he disputes

the calculation of total loss for purposes of the Sentencing

Guidelines and restitution. Young argues now that the loss

and restitution calculation should be measured from the fi rst

time he was awarded any compensation based upon fraudu

‐

lent claims that he needed assistive devices. Young contends

this would result in a total loss and restitution amount of only

$126,630.41. The adjustment would also produce a two

‐ level

decrease in Young’s o ff ense level for the guideline calculation

and potentially a lower sentence.

If Young had timely objected to this sentencing issue in the

district court, “we would review [the] sentencing court’s fac

‐

tual fi ndings

... for clear error,” United States v. Newman

, 148

F.3d 871, 876 (7th Cir. 1998) (citation omi tt ed), and its “resti

‐

tution calculation for abuse of discretion,” United States v.

Sunmola

, 887 F.3d 830, 840

‐ 41 (7th Cir. 2018) (citation omi tt ed).

But Young did not object.

If Young’s failure to raise the issue had been inadvertent

and thus a forfeiture, we would review the issue for “plain

error.” See Rosales

‐ Mireles v. United States

, 138 S. Ct. 1897, 1903

(2018); Molina

‐ Martinez v. United States

, 136 S. Ct. 1338, 1346

(2016); United States v. Thomas

, 897 F.3d 807, 817 (7th Cir.

2018). To take advantage of plain

‐ error review, Young would

need to meet four criteria: First, the error must not have been

intentionally relinquished or abandoned. Second, the error

would need to be “plain,” meaning clear or obvious rather

than subject to fair debate. Third, the error must have a ff ectedNo. 17

‐ 3494 11

Young’s substantial rights, meaning there would be a reason

‐

able probability that, but for the error, the outcome of the pro

‐ ceeding would have been di ff erent. Fourth, the appellate

court’s failure to exercise its discretion to correct the forfeited

error would seriously a ff ect the fairness, integrity, or public

reputation of judicial proceedings. Rosales

‐ Mireles

, 138 S. Ct.

at 1904–05, citing Molina

‐ Martinez

, 136 S. Ct. at 1343, and

United States v. Olano

, 507 U.S. 725 (1993).

Young’s e ff ort to invoke plain

‐ error review fails at the fi rst

step. An appellate court need not consider a claimed error if

the issue has been waived. “Waiver occurs when a criminal

defendant intentionally relinquishes a known right” and

should be contrasted with forfeiture, “when a defendant neg

‐ ligently fails to assert a right in a timely fashion.” United States

v. Brodie

, 507 F.3d 527, 530 (7th Cir. 2007) (citations and quo

‐

tation marks omi tt ed). A waiver “extinguishes any error and

precludes appellate review.” Id

.

Although “[t]he line between waiver and forfeiture is of

‐

ten blurry,” United States v. Garcia

, 580 F.3d 528, 541 (7th Cir.

2009), this case stands clearly in the realm of waiver. The

“touchstone of waiver is a knowing and intentional decision

not to assert a right,” with a focus on “whether a defendant

chose, as a ma tt er of strategy, not to present an argument.” Id

. (citations and quotation marks omi tt ed). If a defendant fails

to raise a speci fi c objection at sentencing, “we will view it as

having been waived if the defendant had a strategic reason to

[forgo] the argument, that is, only if the defendant’s counsel

would not be de fi cient for failing to raise the objection.”

United States v. Allen

, 529 F.3d 390, 395 (7th Cir. 2008).

As his lawyer emphasized repeatedly in the district court,

Young made a strategic decision to stipulate to fraudulent12 No. 17

‐ 3494

conduct involving his back injury calculated from the time

frame determined by the VA—with the loss and restitution

amounts that loss entailed. Defense counsel was far from “de

‐

fi cient for failing to raise [an] objection” to this compromise

in the district court. The compromise allowed Young to avoid

criminal liability for allegedly fraudulent claims of PTSD and

the greater intended loss amounts for which he could be held

legally responsible. Young’s choice was deliberate, as further

con fi rmed by his lawyer’s successful e ff orts to have the

presentence report revised to re fl ect some factual changes and

additional documentation, all without raising any objection to

Young’s admi tt ed fraud and the agreed loss and restitution

amounts. See United States v. Fuentes

, 858 F.3d 1119, 1121 (7th

Cir. 2017) (“objecting to certain parts of a PSR [presentence

report], but not the later

‐ challenged Guidelines range consti

‐

tutes ‘the paragon of intentional relinquishment’”), quoting

Brodie

, 507 F.3d at 531.

By “stipulating to the conduct in the plea agreement” and

embracing that stipulation in the presentence report, in his

sentencing memorandum, and at his sentencing hearing,

Young “has waived any claim that he did not engage in that

conduct.” United States v. Flores

‐ Sandoval

, 94 F.3d 346, 349 (7th

Cir. 1996); see also Newman

, 148 F.3d at 876, 878 (although de

‐

fendant objected at sentencing to conduct described in the

presentence report and the resulting “amount

‐ of

‐ loss calcula

‐

tion,” by “stipulating to the conduct listed in [his] plea agree

‐

ment, [he] conclusively admi tt ed those facts and waived any

subsequent challenge to them”).

Young’s twenty

‐ year e ff ort to obtain compensation bene

‐

fi ts based on injuries he su ff ered during his four years of ser

‐

vice included, we must assume, both valid and fraudulentNo. 17

‐ 3494 13

claims. As Young observes on appeal, it is “exceedingly di ffi‐

cult

... to determine when [he] began his fraudulent scheme

[in order] to accurately calculate the actual loss or intended

loss as a result of his fraud.” But the government and Young

agreed on a reasonable line between Young’s fabricated and

actual injuries. They did so after reviewing thousands of

pages and decades’ worth of medical records. Their agree

‐

ment was set forth in Young’s plea agreement, the presen

‐

tence report, Young’s sentencing memorandum, and the sen

‐ tencing hearing. Young “knew he had a right to further judi

‐

cial determinations” on the factual questions of his relevant

conduct and resulting loss and restitution amounts, but he

“intentionally chose to relinquish that right.” He “cannot now

resurrect the waived claim” and re

‐ litigate that question on

appeal. Newman

, 148 F.3d at 879.

The judgment of the district court is

AFFIRMED.