Opinion
23-3087 24-1327
06-17-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT J. SOLBERG, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1
Submitted June 14, 2024 [*]
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 22-CR-247 William C. Griesbach, Judge.
Before MICHAEL Y. SCUDDER, Circuit Judge AMY J. ST. EVE, Circuit Judge JOSHUA P. KOLAR, Circuit Judge
ORDER
Robert Solberg made false statements to the United States while on release pending sentencing in another criminal case. See 18 U.S.C. §§ 1001(a)(2), 3147(1). Specifically, Solberg declared on an application for a government loan that he had not pleaded guilty to a felony within the last year, despite having pleaded guilty, six months earlier, to a felony involving odometer tampering. Solberg paid restitution in the tampering case shortly after obtaining the loaned funds. Then at sentencing in this case, the district court remarked that, "assuming" Solberg had used the loaned funds to pay restitution for the tampering felony, "that would be in essence [a] kind of fraud on the Court." The court sentenced him to 18 months' imprisonment, the top of his guidelines range. Solberg appeals, arguing that the court's statement about using the loan to pay restitution amounted to impermissible speculation. Because Solberg has not shown that the court relied on inaccurate information in making its sentencing decision, we affirm the judgment.
In August 2020, Solberg applied for a loan from the Paycheck Protection Program ("PPP"), which Congress enacted to address economic disruption caused by the COVID-19 pandemic. The application asked two questions about Solberg's criminal history and stated that if he answered "Yes" to either inquiry, his application would be denied. The first question asked whether Solberg was presently subject to an indictment for a felony, and the second asked whether he had pleaded guilty to a felony within the last year. Solberg had pleaded guilty, six months earlier, to the felony of conspiring to tamper with odometers in vehicles that he had offered for sale. See 49 U.S.C. §§ 32703(2), 32709(b). But Solberg answered "No" to the application questions and soon after received about $21,000 in PPP funds. Later that month, shortly before his sentencing hearing on the odometer tampering, Solberg paid $10,000 towards restitution. The district court sentenced him to four months' imprisonment-below the recommended range in the Sentencing Guidelines-in large part because the court was "impressed by the restitution payment."
Two years later, a grand jury indicted Solberg for making false statements to the United States while he was on release pending sentencing, in violation of 18 U.S.C. §§ 1001(a)(2), 3147(1). Solberg entered another plea of guilty. The United States Probation Office submitted a presentence investigation report ("PSR"), which stated that the PPP funds "were likely used to pay upfront restitution in his prior federal odometer tampering case." The PSR calculated an offense level of 12 and a criminal history category of II, yielding a guidelines imprisonment range of 12 to 18 months.
At sentencing, Solberg did not object to the PSR, and the court adopted its findings and guidelines calculations. The government argued for an above-guidelines sentence in part because Solberg's fraudulently obtained PPP loan had "assist[ed] in his ability to pay the restitution" in the tampering case, though it conceded that it could not "specifically say" that the PPP funds had gone directly to restitution. Solberg's attorney offered in his own argument that Solberg had said he had been injured in a car accident and had "indicate[d]" that the restitution payments for the tampering case had come from a resulting $50,000 settlement.
The court then sentenced Solberg. It began by summarizing the government's argument for a prison term above the guidelines range:
[T]he Government is asking for an above guideline sentence. And the Government points to significant aggravating factors that certainly support its request to-assuming the blatant manner of fraudulently applying for PPP loans to pay off restitution in another pending case, that would be in essence [a] kind of fraud on the Court as well as the fraud against the Small Business Association.
The court next stated that Solberg's payment of restitution in this case was a mitigating factor, and although the court could "only hope" that it came from "lawful sources," the court would "assume it has." The court also noted that the fraud amount was relatively small and that Solberg had "good work history." But the court further explained that Solberg's case called for punishment and deterrence considering the widespread abuse of the loan program. Concluding its explanation of Solberg's sentence, the court "recognize[d] the Government's argument for a longer sentence," but opted instead for a within-guidelines sentence of 18 months' imprisonment. Solberg appealed.
While his appeal was pending, Solberg filed two motions (one through counsel, one pro se) in the district court to reduce his sentence based on an amendment to the Sentencing Guidelines. 18 U.S.C. § 3582(c)(2). The district court denied the motions, and after Solberg filed a pro se notice of appeal, we consolidated the cases.
On appeal, now with new counsel, Solberg argues that the district court procedurally erred at sentencing by relying on speculative and unsupported information about the source of the money that he used to pay restitution. The government contends that Solberg forfeited this argument because he did not object to the PSR, and thus our review should be only for plain error. See, e.g., United States v. Gardner, 939 F.3d 887, 892 (7th Cir. 2019). Solberg contends that his attorney adequately disputed the issue when he said that Solberg used settlement funds to pay the restitution, so review should be de novo. See, e.g., United States v. Young, 863 F.3d 685, 688 &n.2 (7th Cir. 2017). We need not resolve this dispute, because even under de novo review, we see no reversible error.
Solberg has a right to be sentenced based on accurate information. United States v. Pennington, 908 F.3d 234, 239 (7th Cir. 2018). To successfully demonstrate a violation of this right, Solberg "must show that inaccurate information was before the court and that the court relied upon it." Id. Solberg has not made either showing. The court's statements were not inaccurate. As he concedes on appeal, money is fungible, and at a minimum the PPP funds "relieved some of the financial pressure [he] felt from the restitution." Indeed, his mitigation arguments emphasized that he had needed the loan to pay bills that presumably could have been paid with the settlement money instead. This straightforward observation was the essence of the court's comment: Solberg's fraudulent application for PPP funds facilitated his ability to pay restitution, which lowered his punishment for the odometer fraud, achieving what was effectively a "fraud on the Court."
Moreover, reviewing the sentencing transcript as a whole, see United States v. Campbell, 99 F.4th 957, 960 (7th Cir. 2024), we are not persuaded that the district court improperly relied on the sources of the restitution money to reach its sentence. Its only comments on the issue were within its discussion of the government's request for an above-guidelines sentence-which the court ultimately rejected. Likewise, the court expressly stated it would "assume" the current restitution came from "lawful sources," and so did not rest its decision on any speculation that Solberg had used unlawful sources. Neither comment was a primary justification for imposing a prison term within the guidelines range. The court instead stressed the need for punishment and deterrence, emphasizing the "nature of this offense" and explaining that "[t]his type of fraud .. can't go unpunished" because "the message it sends is that this money is free, and as long as you can fill out a form, you can have it." See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(B). Although the court also noted several mitigating factors, such as Solberg's payment of restitution and good work history, see id. § 3553(a)(1), (a)(7), these factors did not overcome the court's concerns about deterring abuse of government programs. Our review of the whole transcript satisfies us that the court's sentence was based on these considerations under § 3553(a) that directly preceded its sentencing decision, not on any "passing comment" regarding other arguments it explicitly rejected. Campbell, 99 F.4th at 960-61.
Solberg does not raise any argument that the district court erred in denying his motions to reduce his sentence. Given his silence, we have no reason to conclude that the district court erred.
AFFIRMED.
[*] We have agreed to decide these cases without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(2)(C).