In the

United States Court of Appeals

For the Seventh Circuit

No. 19-1043

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SALVATORE PICARDI,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:16-cr-00431-1 — Thomas M. Durkin, Judge.

ARGUED SEPTEMBER 4, 2019 — DECIDED FEBRUARY 19, 2020

Before ROVNER, SCUDDER, and ST. EVE, Circuit Judges.

ROVNER, CircuitJudge.A jury found Salvatore Picardiguilty

of one count of embezzlement by an officer or employee of the

United States, in violation of 18 U.S.C. § 654. The district court

sentenced Picardito a term of eight months’ imprisonment and

a fine of $100,000. On appeal, Picardi objects to the amount of

the fine and to the adequacy of the district court’s explanation
2 No. 19-1043

forimposing an above-Guidelines fine. Because Picardiwaived

any argument regarding the fine, we dismiss the appeal.

I.

Picardi was a United States Customs and Border Protection

(“CBP”) Officer working at the international terminal of

O’Hare International Airport in Chicago. His assignment there

was to screen passengers arriving from locations outside the

country priorto their entry into the United States. On February

22, 2016, he was working in this capacity when he decided to

steal money from a traveler who had been referred for a

secondary inspection. Picardi’s behavior that day contributed

significantly to the sentence that the court imposed, but this

appeal ultimately turns on waiver. To provide background for

the waiver issue, we will briefly summarize the events of that

day.

CBP Officer Federico Angulo was interviewing Ms. Chen,

a Chinese woman who spoke no English, when Picardi

volunteered to help with the inspection. Within moments of

intervening, Picardi asked how much money Ms. Chen was

carrying, demanded to see the money, learned that she was

carrying $5,000 in $100 bills, and then took her purse and

suitcase for a search while Officer Angulo and an interpreter

interviewed Ms. Chen. Instead of searching the bags in the

view of a security camera, Picardi placed them behind a desk

that blocked the camera, removed the money and hid it on his

person. 

After Officer Angulo cleared Ms. Chen to enterthe country,

he directed her to wait in the hallway with her belongings as

he completed the necessary paperwork. Ms. Chen soon
No. 19-1043 3

discovered that the money was no longer in her purse. A

frantic search began. The interpreter, the interpreter’s supervisor, Officer Angulo, another CBP officer and a CBP supervisor

all participated in the search, as did Picardi. When none of the

searchers found anything in Ms. Chen’s belongings or in the

room where the interview had taken place, the CBP supervisor

conducted a body search of Ms. Chen. At that point, a watch

commander was enlisted to review security camera footage of

the interview room. While that review was taking place, the

bags were moved to another room and the officers and

interpreters continued the search through Ms. Chen’s belongings. Picardi paced in and out of the new search area six times.

After the sixth exit and entry, he picked up an item of Ms.

Chen’s clothing, turned away from a security camera and

shoved the money into the clothing. He then tried to convince

the several people who had searched that very item of clothing

multiple times that the money had been there all along. He

claimed it had fallen into the lining of the clothing through a

hole in a pocket, and he then used a knife to cut the lining to

support his story. Facing an incredulous group, he then tried

to cast blame on Ms. Chen, suggesting that she was trying to

“scam” them in order to get more money. The video evidence,

of course, pointed to Picardi as the only person to have access

to the money when it disappeared.

Picardi was charged with embezzlement by an officer or

employee of the United States, in violation of 18 U.S.C. § 654.

He remained free on bond pending trial. After a jury found

him guilty, his bond was modified to require home confinement. While out on bond, Picardi harassed his estranged wife

using electronic and other means. In addition to his own
4 No. 19-1043

harassing actions, he engaged a private detective in his efforts

to intimidate his wife, falsely telling the man that he was a

customs officer conducting a legitimate investigation. After

Picardi was convicted, he enlisted a friend to approach Ms.

Chen’s adult daughterto persuade herto convince her mother

to recant hertestimony. Ms. Chen’sdaughterinstead contacted

law enforcement. Because of this conduct, the court revoked

Picardi’s bond three months before his sentencing hearing and

he was taken into custody. 

The Presentence InvestigationReport(“PSR”)wasprepared

approximately one year prior to Picardi’s sentencing hearing,

before some of the conduct that led to bond revocation came to

light. The PSR calculated a base offense level of six, and

recommended a two-level enhancement for abuse of trust

under Sentencing Guideline 3B1.3, for a total of eight. With a

Criminal History Category I, that calculation resulted in a

Guidelines range of zero to six months’ imprisonment and a

fine between $2,000 and $20,000. The probation officer also

submitted a Sentencing Recommendation which, like the PSR,

had been drafted a year before the sentencing hearing. The

probation officer advocated for a prison term at the high end

of the range and a fine of $100,000, noting Picardi’s capacity to

pay a fine in that amount. Calling attention to the many

aggravating factors in Picardi’s case, the probation officer

remarked that, although the Guidelines failed to account for

the serious nature of Picardi’s offense, she had considered

other Guideline enhancements and found none applicable.

R. 57, at 2.

At the sentencing hearing, both defense counsel and the

defendant confirmed that they had read and discussed the PSR
No. 19-1043 5

and the Sentencing Recommendation. Defense counsel offered

one correction to the PSR regarding Picardi’s participation in

mental health counseling, which the court accepted. The

government indicated that it was requesting two enhancements not mentioned in the PSR. The court then adopted the

PSR except for the sentencing calculation.

The government proposed two two-point enhancements:

one for vulnerable victim under Guideline section 3A1.1(b)(1),

and one for obstruction of justice under Guideline section

3C1.1. The court rejected the vulnerable victim enhancement

but agreed that a two-point obstruction enhancement was

appropriate based on Picardi’s use of a friend to attempt to

influence a witness to recant testimony prior to sentencing.

That resulted in an offense level of ten which carried a revised

Guidelines range of six to twelve months’ imprisonment and

a fine of $4,000 to $40,000. The court then turned to the section

3553(a) factors, noting that it would consider under those

factors whether a sentence outside the Guidelines range was

appropriate. 

The government argued for a prison sentence within the

guidelines range of six to twelve months, mentioning several

aggravating factors and a few mitigating factors. The government offered no argument regarding the recommended fine.

Defense counsel emphasized how much Picardi had already

suffered for his actions. He felt terrible guilt over the death of

his father from a stroke that he suffered after Picardi was

charged with this crime. Picardi’s wife divorced him after he

committed the offense, and he was unable to return to any job

in law enforcement with a felony conviction on his record.

Defense counsel also advised the court that the conviction
6 No. 19-1043

might result in Picardi losing his real estate license. Counsel

also noted mitigating factors, including Picardi’s participation

in mental health treatment, and his commitment to ceasing

harassment towards his ex-wife. 

But the crux of counsel’s argument was how much Picardi

had suffered in prison during the three months following the

revocation of bond. Noting that he knew what the government

had asked for in terms of sentencing and what the probation

department had recommended, counsel asked the court to

limit the sentence to time served, arguing that Picardi had

experienced significantdifficulties in prison. R. 108, Sentencing

Transcript, at 41–50 (hereafter “Sent. Tr.”). At first, the other

inmates misidentified him as a pedophile and threatened to

physically harm him. Once the inmates learned that he was a

law enforcement officer, they threatened him and labeled him

a snitch. He had trouble eating and sleeping, and had lost a

significant amount of weight. He became hyper-vigilant, and

counsel described him as “terrified.” Counsel continued: 

And I think that in the 90 days he has been in jail, he

has experienced things that would rival any of the

deeper recesses of Dante’s hell. I ask your Honor to

please cut short the abject terror of his life circumstances and say, while clearly more would be appropriate, what would be sufficient, but not greater

than necessary. 

Sent. Tr. at 48. Finally, counsel urged the court to consider

imposing a fine rather than additional time in prison:

And if there is a balancing consideration, to please

strongly consider answering the question of what is
No. 19-1043 7

sufficient, with the response that the time he has

already served in punishment is enough. There are

other ways to punish an individual. This is a crime

of taking someone else’s money. Then a response in

addition to the custody that he has served is one that

has been recommended by the probation department, which is a fine.

Money this man can make honestly, legitimately,

and has his whole life. His freedom and liberty has

caused him to dwindle away physically and emotionally to a point where I fear for him. Not because

I hope your Honor will give him a lighter sentence,

but because I truly do. And I ask your Honor to

consider that.

Sent. Tr. at 50.

AfterhearingPicardi’s allocution,the court first determined

that the probation office’s recommendation of three years of

supervised release was appropriate, and the court set the

conditions forthat period of release. The court then announced

its decision as to the fine:

All right. I am going to impose a fine, the recommended fine of $100,000 – the defendant has the

ability to pay it – and also a special assessment of

$100. Given the fact that there is a fine, it should be

paid during the period of supervised release. 

Sent. Tr. at 61–62. The court said nothing more on the issue of

the fine during the remainder of the sentencing hearing.
8 No. 19-1043

The court next turned to the issue of custody. The court

found an extensive list of aggravating factors, and rejected

much of the argument that Picardi had already suffered

enough, finding much of the loss and pain to be self-inflicted.

Citing the airport security video, the court deemed Picardi’s

conduct “callous and greedy,” as well as calculating rather

than impulsive and desperate as defense counsel had argued.

Moreover, Picardi was acting as a law enforcement officer at

the time he committed his crime, tarnishing the integrity of an

important federal agency. He took advantage of an elderly

Chinese woman who did not speak English, hoping that she

would not discover his theft until she had left the airport. He

caused her to undergo a body search knowing that the money

was in his own pocket. And he attempted to deflect responsibility from himself by casting blame on his victim. The court

noted that this was not a “paper crime” but instead involved

a real victim who endured significant distress. The court

remarked on Picardi’s failure to apologize to the victim during

his allocution to the court. The court also noted that Picardi

had harassed his wife with electronic communications and had

sent a private investigatorto his mother-in-law’s home. He had

done all of these things in spite of having a happy, healthy

upbringing, a good education, a supportive family, and no

economic wants, which the court also considered to be aggravating circumstances. In mitigation, the court noted that

Picardi had no prior criminal record, had undergone mental

health treatment, and had many supportive letters from family

and friends. The court indicated that it was inclined to go much

higher than the six month sentence recommended by the

probation officer because of the amount of aggravating
No. 19-1043 9

conduct, but the court was moved by some of the letters from

family members. The court rejected the suggestion that time

served was sufficient and sentenced Picardi to eight months’

imprisonment, a term within the Guidelines range as recalculated to account for Picardi’s attempt at obstruction of justice.

Picardi appeals.

II.

On appeal, Picardi challenges only the fine imposed. He

faults the district court for failing to make specific findings

underGuideline 5E1.2(d), and 18 U.S.C. §§ 3553(a) and 3572(a),

in order to explain why the above-Guidelines fine was imposed. He characterizes the failure to adequately explain the

fine as a procedural error. Picardi also asserts that the fine was

substantively unreasonable. He concedes that he failed to

object to the fine, but urges this court to find that he merely

forfeited rather than waived his claims, rendering them

reviewable under the plain error standard. 

We must first consider whether Picardi forfeited or waived

the arguments that he now makes on appeal. “Whereas

forfeiture is the failure to make the timely assertion of a right,

waiver is the ‘intentional relinquishment or abandonment of a

known right.’” United States v. Olano, 507 U.S. 725, 733 (1993)

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). We may

review a forfeited claim for plain error. Fed. R. Crim. P. 52(b);

Olano, 507 U.S. at 733–34. Waiver, however, extinguishes any

claim of error, precluding appellate review. Olano, 507 U.S. at

733; United States v. Young, 908 F.3d 241, 246 (7th Cir. 2018);

United States v. Aslan, 644 F.3d 526, 537 (7th Cir. 2011).
10 No. 19-1043

Although we have characterized the line between forfeiture

and waiver as often blurry, we have noted some distinctions

that aid the analysis. United States v. Garcia, 580 F.3d 528, 541

(7th Cir. 2009). Forfeiture typically results from an accidental

or negligent omission; waiver arises from a knowing and

intentional decision. Garcia, 580 F.3d at 541. When a defendant

chooses as a matter of strategy not to present an argument or

objection, we generally view that choice as waiver. Young,

908 F.3d at 247 (if a defendant fails to raise a specific objection

at sentencing, we will view it as having been waived if the

defendant had a strategic reason to forgo the argument);

Garcia, 580 F.3d at 541 (in distinguishing between forfeiture

and waiver, the important concern is whether the defendant

chose, as a matter of strategy, not to present an argument);

United States v. Allen, 529 F.3d 390, 395 (7th Cir. 2008) (if a

specific objection was not raised 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 deficient for failing to raise the objection).

For example, a defendant who accepted a plea agreement

that contained a stipulation as to the amount of the loss and

restitution for a fraud charge waived any later claim regarding

that amount on appeal. Young, 908 F.3d at 246–47. This was

because the defendant made a strategic decision to stipulate to

certain loss and restitution amounts in order to avoid a trial

and the possible inclusion of additional amounts. Id. Similarly,

a defendant who did not object to the scope of jointly undertaken criminal activity in order to preserve a sentencing

reduction for acceptance of responsibilitywaivedanyobjection
No. 19-1043 11

to that scope. Aslan, 644 F.3d at 537; United States v. Salem,

597 F.3d 877, 890 (7th Cir. 2010) (same). 

In this case, the strategic decision is obvious on the face of

the record, and Picardi has waived his objections both to the

amount of the fine and to the adequacy of the explanation. We

begin by noting that both Picardi and his lawyer affirmed at

the sentencing hearing that they had read and discussed the

probation officer’s Sentencing Recommendation. That document included the proposed $100,000 fine, a recommendation

made at a time when the maximum Guidelines fine had been

calculated to be $20,000. That maximum was adjusted upward

to $40,000 at the sentencing hearing, and Picardi does not

assert that the court miscalculated the correct Guidelines range

for the fine. Moments before making his case for a sentence of

time served, counsel affirmed again that he knew “what the

probation department has recommended.” Sent. Tr. at 45.

There can be little doubt that both Picardi and his lawyer knew

what was at stake: the maximum under the Guidelines was

$40,000, and the probation department recommendation was

$100,000. 

In the context of a sentencing recommendation for custody

at the high end of the Guidelines and a $100,000 fine, Picardi’s

counsel made an extensive plea for a sentence of time served

because of the extremedifficulties that Picardihad encountered

in his three months in prison. Aware that “clearly more [time]

would be appropriate,” (Sent. Tr. at 48), and that the court

might not accede to a request for time served, counsel offered

the court a “balancing consideration.” Sent. Tr. at 50. Specifically, he argued that time served was punishment enough, and

that “[t]here are other ways to punish an individual.” Sent. Tr.
12 No. 19-1043

at 50. Namely, because the nature of the crime was “taking

someone else’s money,” “[t]hen a response in addition to the

custody that he has served is one that has been recommended by

the probation department, which is a fine.” Sent. Tr. at 50 (emphasis added). That was a third and explicit acknowledgment that

counsel was aware of the probation department’s recommendation and was now proposing to balance the request for time

served (three months) with the recommended fine ($100,000).

The balance he proposed was thus for a below-Guidelines

sentence of three months,1in exchange for the above-Guidelines fine recommended by the probation department. Counsel

concluded by expounding on Picardi’s ability to make money,

and drove home his point that custody had “caused him to

dwindle away physically and emotionally to the point where

I fear for him.” Sent. Tr. at 50. It was only after this argument

that the court announced that it was fining Picardi the amount

recommended by the probation officer. 

This was not simply an inadvertent failure to object to the

imposition of an above-Guidelines fine; it was a calculated,

strategic decision. Counsel was aware of the many aggravating

factors present in the case. Before pitching his “balancing

consideration” argument, counsel had twice indicated that he

was aware of the probation department’s sentencing recommendation, which of course included the proposed $100,000

fine. He then referred a third time to the recommendation by

1

Three months constituted half of the bottom of the Guidelines range (six

months), and only one-quarter of the top of the range (twelve months). The

recommended fine of $100,000 was two and a half times the top of the range

($40,000).
No. 19-1043 13

suggesting that the court impose that fine in lieu of additional

prison time. Those three references to the probation department’s recommendation, without any accompanying objection

to the above-Guidelines fine, would have led any judge to

believe that counsel knew the amount and had no problem

with the recommended fine. The failure to flag the amount of

the recommended fine as an issue was clearly the result of a

strategic decision made in the hope that it would work to his

client’s benefit on the custody determination. See Young,

908 F.3d at 247 (finding an objection to loss and restitution

amounts waived when defendant had stipulated to the

amounts in the hopes of avoiding greater liability). That the

strategy was not entirely successful (because the court ordered

additional custody as well as the fine) does not mean that it

was not a strategy. Moreover, Picardi can hardly complain that

the court failed to explain adequately its decision to impose the

above-Guidelines fine when counsel led the court to believe

that he had no objection to the fine. See United States v. Walton,

255 F.3d 437, 442 (7th Cir. 2001) (“A party may not by his own

actions lull the court into believing that an express finding is

unnecessary and then object when it makes no such finding.”).

In general, the better practice is for a court to explain its

reasons for imposing an above-Guidelines fine. In the usual

course of reviewing sentences, we first ensure that the district

court committed no significant procedural error such as

incorrectly calculating the Guidelines range or failing to

explain adequately the chosen sentence, among other things.

Gall v. United States, 552 U.S. 38, 51 (2007). Guideline 5E1.2 and

18 U.S.C. § 3572(a) (which incorporates by reference section
14 No. 19-1043

3553(a)) set forth factors for courts to considerin setting a fine.2

A court need not offer express or specific findings for every

factor, and it is sometimes clear from the record that the court

has properly considered the relevant factors. United States v.

Artley, 489 F.3d 813, 826 (7th Cir. 2007). But we will remand

where it is unclear whether the court has considered the

relevant factors, such as when the court adopts the factual

findings of the PSR but then deviates from the recommendation of the probation office, orif the court declines to adopt the

findings of the PSR and makes no findings of its own. Id; United

States v. Bauer, 129 F.3d 962, 968 (7th Cir. 1997). See also United

States v. Washington, 739 F.3d 1080, 1082 (7th Cir. 2014) (upholding below-Guidelines fine because it was not inconsistent

with the recommendation of the adopted PSR). But the

defendant here waived any objection to the fine and led the

court to believe that there was no reason to further explain its

decision. That waiver extinguishes any claim of error, precluding appellate review. The appeal is therefore DISMISSED. 

2

Sentencing Guideline 5E1.2 directs courts to impose fines in all cases

except those where the defendant establishes that he is unable to pay and

is not likely to become able to pay. The court did in fact find that Picardi

had the ability to pay the fine imposed, and the PSR (which the court

adopted without objection) established a solid factual basis for thatfinding,

namely, Picardi’s significant net worth. Interestingly, counsel’s argument

at the sentencing hearing touched on many of the factors that courts must

consider under Guideline 5E1.2(d) and section 3572(a) insettingthe amount

of the fine. The “balancing consideration” plea that counsel offered

supports the above-Guidelines amount under those factors.