United States of America v. Keith Austin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3211
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
KEITH A USTIN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 13‐cr‐00761‐1 — Charles R. Norgle, Judge.
____________________
A RGUED OCTOBER 22, 2018 — D ECIDED OCTOBER 29, 2018
____________________
Before FLAUM, EASTERBROOK , and S CUDDER , Circuit Judges.
FLAUM, Circuit Judge. Near the end of his jury trial, Keith
Austin pleaded guilty to three counts of bank fraud, aggra‐
vated identity theft, and obstruction of justice. Austin now
protests that his plea was not knowing and voluntary because
the district court did not adequately discuss the Sentencing
Guidelines and did not mention forfeiture. He also takes issue
with the court’s denial of the reduction for acceptance of re‐
sponsibility and the use of the incorrect Guidelines range, as

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2 No. 16‐3211
well as the sufficiency of the evidence supporting the district
court’s loss calculation, restitution amount, and forfeiture or‐
der. For the reasons below, we affirm the court’s acceptance
of Austin’s guilty plea, but we vacate Austin’s sentence and
remand for resentencing.
I. Background
A. Indictment and Plea of Guilty
In September 2013, the government indicted defendant
Keith Austin, along with nine codefendants, for his role in an
eight‐year mortgage‐fraud scheme. The indictment charged
Austin with three counts of bank fraud, in violation of 18
U.S.C. § 1344; six counts of wire fraud, in violation of 18
U.S.C. § 1343; one count of aggravated identity theft, in viola‐
tion of 18 U.S.C. § 1028A(a)(l); and one count of obstruction of
justice, in violation of 18 U.S.C. § 1512(c)(2). According to the
indictment, Austin allegedly participated in a scheme to
fraudulently obtain fifty‐two mortgage loans from lenders,
which resulted in losses on the mortgage loans of over $8 mil‐
lion.
Austin was the only member of the scheme to go to trial;
his nine codefendants pleaded guilty. On April 22, 2015, the
sixth day of the jury trial, Austin informed the court that he
wished to change his plea. Austin did not have a written plea
agreement or a plea declaration; rather, the district court con‐
firmed with Austin’s counsel that it would be “an oral blind
plea” to counts IX, X, and XI of the indictment for bank fraud,
aggravated identity theft, and obstruction of justice, respec‐
tively, and that the government would dismiss the remaining
counts. As part of the plea colloquy, the court first asked the

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No. 16‐3211 3
government to indicate the maximum penalties and fines ap‐
plicable to the three offenses and confirmed Austin’s under‐
standing of those penalties. The court then asked questions to
determine Austin’s competence to knowingly change his plea
and explained Austin’s trial rights and what he would be
waiving by pleading guilty. Next, the court questioned Austin
about having sufficient time to discuss the trial and his deci‐
sion to plead guilty with his attorney.
The government presented, and Austin admitted, the fac‐
tual basis for his plea to Counts IX, X, and XI. The court then
turned to the Federal Sentencing Guidelines, inquiring:
Are you also aware that at the time of the sen‐
tencing the [c]ourt will be looking at the Federal
Sentencing Guidelines? They serve as guides to
the [c]ourt, but are not mandatory. Do you un‐
derstand that? … Has [your attorney] explained
to you the issues and application involving the
Federal Sentencing Guidelines?
Austin confirmed that he had spoken to his attorney about
the Guidelines: “I asked several questions. He explained it to
me.” Finally, after confirming Austin had not been threatened
or coerced into pleading guilty, the court accepted Austin’s
guilty plea to Counts XI, X, and XI. At no point did the court
discuss forfeiture; neither Austin’s counsel nor the govern‐
ment informed the court that it overlooked any portions of the
colloquy.
B. Sentencing
Austin appeared for sentencing on August 15, 2016, with
new counsel who had not submitted a sentencing memoran‐
dum. The probation office had submitted a presentence report

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4 No. 16‐3211
(“PSR”) in June 2015 calculating a Guidelines sentencing
range of 188–235 months, based on the 2014 Guidelines man‐
ual. The PSR included an offense level of 35, calculated from
a base offense level of 7 under U.S.S.G. § 2B1.1(a)(1), a two‐
level enhancement for the number of victims, a four‐level en‐
hancement for role in the offense, a two‐level enhancement
for obstruction of justice, and a twenty‐level enhancement for
the loss amount of over $8.6 million per the 2014 version of
U.S.S.G. § 2B1.1(b)(1)(K). The PSR did not recommend an ad‐
justment for acceptance of responsibility. Based on his prior
convictions for burglary in 1995 and misdemeanor battery in
1999, Austin was in criminal history category II.
Although the PSR added a twenty‐level enhancement for
loss amount based on the 2014 Guidelines, a new Guidelines
manual took effect on November 1, 2015, after the probation
department submitted the PSR but prior to sentencing. Under
the 2015 manual, a loss of $8.6 million requires an eighteen‐
level adjustment, not a twenty‐level one. The parties agree the
2015 manual that was in effect at the time of sentencing is the
applicable manual. However, no one caught the error at the
time of sentencing.
After denying Austin’s motion for a competency evalua‐
tion and request to postpone the sentencing, the court began
the sentencing hearing by reviewing the character letters sub‐
mitted on Austin’s behalf. The court considered objections to
the PSR, the only one being the government’s request for an
enhancement for use of sophisticated means, which the court
overruled. Next, the parties presented argument under the 18
U.S.C. § 3553(a) factors: Austin argued for a sentence of 60
months’ imprisonment based on his positive characteristics
and reduced risk of recidivism due to his age and the age of

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No. 16‐3211 5
his prior convictions. The government presented a loss chart
summarizing the “losses attendant to this fraud and the par‐
ticular properties for which [] Austin is responsible.”1 The to‐
tal loss reflected in the loss chart was over $9.1 million, higher
than the $8.6 million reflected in the PSR, due to the additional
properties sold at a loss or reassessed since the initial calcula‐
tion. The government stated the loss amount “is based on
these 50 properties that are mentioned in the indictment and
which are laid out in this loss chart.” Austin did not object to
any aspect of the loss chart or loss amount.
Although the PSR did not recommend the two‐level re‐
duction for acceptance of responsibility, Austin’s counsel ar‐
gued that Austin had accepted responsibility by pleading
guilty prior to the jury’s verdict. However, because Austin
“put the government through its task,” and “the case was
merely at the point of concluding when the defendant then
decided to enter a … plea of guilty,” the court determined
Austin’s acceptance “was not extraordinary, and certainly [it]
is not appropriate in this case to give him two points for ac‐
ceptance of responsibility.”
In weighing the § 3553(a) factors in mitigation, the court
noted the lengthy period of time since Austin’s last conviction
and the support of his friends and family. In aggravation,
however, the court observed that there was “evidence in this
case, in which as many as 50 or 52 transactions occurred for
which the defendant is responsible” as well as the “extremely
large” restitution amount of over $9.1 million. The court con‐
cluded a sentence within the Guidelines range of 188–235
1 The loss chart is available at ECF No. 315 on the district court’s
docket.

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6 No. 16‐3211
months was too “heavy” but that it still must “impose a sen‐
tence that does not denigrate the seriousness of what [] Austin
has done.” It then imposed a sentence of 120 months on
Counts IX and XI, to be served concurrently, and 24 months
on Count X, to be served consecutively, for a total of 144
months’ imprisonment. As for supervised release, the court
imposed 2 years on Counts IX and X and 1 year on count XI,
all to be served concurrently. The court did not impose a fine
due to Austin’s inability to pay, but the court imposed the
mandatory special assessment of $300, $100 per each count of
conviction.
The government moved for an order of forfeiture for
$4,374,070, including Austin’s assets seized in a search—a
2007 Lexus LS460 sedan and $6,800 in cash. Austin did not ob‐
ject, and the court entered the forfeiture order for the assets.
The court also ordered restitution in the amount of loss—
$9,134,900—imposed jointly and severally with Austin’s code‐
fendants. At the end of the sentencing hearing, the govern‐
ment prompted the court to accept and adopt the findings in
the PSR. The court then formally “accept[ed] the findings [of]
fact [and] the conclusions of law presented in the probation
department’s presentence investigation report.”
II. Discussion
A. Rule 11 Colloquy
Because Austin did not object to the adequacy of the Rule
11 plea colloquy or move to withdraw his guilty plea as invol‐
untary at the time of his sentencing, the parties agree that this
Court reviews for plain error. United States v. Vonn, 535 U.S.
55, 59 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.
2008). To establish plain error, appellant bears the burden of

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No. 16‐3211 7
showing that the district court (1) committed error; (2) that is
plain or obvious; (3) that affects his substantial rights; and
(4) that “seriously impugn[es] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Gill, 824
F.3d 653, 661 (7th Cir. 2016) (citation and internal quotation
marks omitted).
“As a practical matter, it is incredibly difficult for a de‐
fendant to prove that a district court plainly erred when ac‐
cepting a guilty plea.” United States v. Villarreal‐Tamayo, 467
F.3d 630, 632 (7th Cir. 2006). Before accepting a guilty plea, a
district court “must inform the defendant of, and determine
that the defendant understands,” a litany of subjects. Fed. R.
Crim. P. 11(b)(l). Austin asserts that the court’s Rule 11 collo‐
quy was deficient with respect to two of those subjects—the
Sentencing Guidelines and forfeiture. Under Rule
11(b)(1)(M), the court must inform the defendant that “in de‐
termining a sentence, the court [i]s obligat[ed] to calculate the
applicable sentencing‐guideline range and to consider that
range, possible departures under the Sentencing Guidelines,
and other sentencing factors under 18 U.S.C. § 3553(a).”
Here, the court informed Austin that “at the time of the
sentencing” it would “be looking at the Federal Sentencing
Guidelines” and that “[t]hey serve as guides to the [c]ourt, but
are not mandatory.” After checking that Austin understood,
the court confirmed that Austin had asked questions of his
counsel regarding the “issues and application” of the Guide‐
lines and that Austin’s counsel “explained it to [him].” The
court stated it would look to the Guidelines in determining
Austin’s sentence, but the Guidelines were not mandatory.
And the court made sure that Austin had the chance to discuss
the “issues and application involving” the Guidelines with his

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8 No. 16‐3211
counsel prior to entering his guilty plea. Moreover, the court
reviewed and made sure Austin understood the statutory
maximums—30 years on Count IX, 2 years mandatory to run
consecutively to any other term on Count X, and 20 years on
Count XI. “His decision to enter a plea despite this warning
demonstrates that [Austin] contemplated the possibility of a
sentence exceeding the applicable guideline range … There‐
fore, because the ‘total circumstances surrounding the plea
[demonstrate] that the defendant was informed of his rights
and understood the consequences of his plea,’” we conclude
the court’s discussion of the Sentencing Guidelines was suffi‐
cient under Rule 11, and it did not plainly err. See United States
v. Parker, 368 F.3d 963, 968 (7th Cir. 2004) (second alteration in
original) (quoting United States v. Mitchell, 58 F.3d 1221, 1224
(7th Cir. 1995)); cf. Griffin, 521 F.3d at 729 (upholding guilty
plea where “although the court informed [defendant] that he
would ‘be sentenced under the appropriate [Sentencing]
Guidelines,’ the court did not explain that it had the authority
‘to depart’ from the applicable guidelines range” (second al‐
teration in original) (quoting Fed. R. Crim. P. 11(b)(1)(M))).
During the plea colloquy, the district court is also required
to inform the defendant of “any applicable forfeiture.” Fed. R.
Crim. P. 11(b)(l)(J). There is no dispute that the court did not
mention forfeiture during the plea colloquy and that neither
counsel for Austin nor the government alerted the court to its
omission. Regardless, courts are not required to strictly com‐
ply with Rule 11 to ensure that a defendant has knowingly
and voluntarily pleaded guilty; as we have noted, “‘plain er‐
ror’ is not an automatic synonym for ‘no error.’” United States
v. Sura, 511 F.3d 654, 660 (7th Cir. 2007). Thus, Austin “must
do more than show that the Rule was technically violated. He
must show that his guilty plea was involuntary and that he

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No. 16‐3211 9
would not have entered it on the basis of the record as a
whole.” Id.
Austin argues the totality of circumstances indicate he
would not have pleaded guilty had the court explained that
he faced forfeiture. See Parker, 368 F.3d at 968 (the “Court em‐
ploys ‘a “totality of the circumstances” analysis to determine
whether any Rule 11 violations would have likely affected
[the defendant’s] willingness to plead guilty.’” (alteration in
original) (quoting United States v. Martinez, 289 F.3d 1023, 1029
(7th Cir. 2002)). Specifically, Austin points to three factors that
he argues show he would not have pleaded guilty—“the lack
of a written plea agreement, the lack of benefit to [] Austin to
plead guilty, and the rushed, mid‐trial plea.” The lack of a
written plea agreement and mid‐trial plea are nonstarters; de‐
fendants routinely plead guilty without a written plea agree‐
ment. While a written plea agreement may include details like
an agreed recommended sentence or forfeiture amount, the
lack of a written plea agreement itself is not evidence that
Austin would not have pleaded guilty. Nor is the fact that
Austin changed his mind mid‐trial: That the “the terms of the
‘deal’ were being worked out in the hallway as the jury
waited,” as Austin characterizes the proceeding, is not abnor‐
mal and does not undermine the integrity of the judicial pro‐
cess. It merely reflects the reality “that plea bargains have be‐
come [] central to the administration of the criminal justice
system.” Missouri v. Frye, 566 U.S. 134, 143 (2012).
Austin’s argument that he lacked a benefit fares no better.
Indicating a lack of proper process, Austin argues that he
“gained nothing from pleading guilty to only three of the
eleven counts; all of the other counts would have been
grouped with Counts Nine and Eleven at sentencing pursuant

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10 No. 16‐3211
to U.S.S.G. § 3D1.2(d), leaving his ultimate Guidelines range
essentially unaffected.” However, we have held that a dismis‐
sal of counts can be a benefit to a defendant. See Phillips v.
United States, 668 F.3d 433, 434 (7th Cir. 2012) (noting that the
prior dismissal of nine out of ten counts provided a substan‐
tial benefit to the defendant in exchange for an appellate
waiver). Perhaps Austin saw the writing on the wall after five
days of trial and hoped that in exchange for his guilty plea,
the court would go easier on him at sentencing. Perhaps he
thought he would get credit for accepting responsibility by
pleading guilty. As he notes, a “defendant may have many
reasons for pleading guilty at the particular time that he or
she chooses to do so,” but the deficiencies Austin has asserted
in the plea colloquy do not indicate that he would have made
a different decision with more information about forfeiture.
And under plain‐error review, we require more than unsup‐
ported assertions; we have held that “a defendant must
demonstrate a reasonable probability that, but for the court’s
plain error, he would not have entered the plea.” United States
v. Dyer, 892 F.3d 910, 914 (7th Cir. 2018). Austin did not pro‐
vide any evidence he would not have pleaded guilty had the
court advised him of any applicable forfeiture, other than
counsel’s argument that he did not understand the conse‐
quences of his plea. 2 We thus reject Austin’s unsupported as‐
sertion of error.
2 Because Austin did not move to withdraw his guilty plea in the sen‐
tencing court, we do not have the benefit of an affidavit from Austin af‐
firming that he would not have pleaded guilty had the court properly ad‐
vised him of potential forfeiture. All we have are counsel’s arguments,
which are not evidence. United States v. Useni, 516 F.3d 634, 653 (7th Cir.
2008).

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No. 16‐3211 11
B. Sentencing Issues
Austin raises several issues with his sentence, including
the district court’s use of the wrong Guidelines range and er‐
rors in the district court’s calculation of restitution, loss
amount, and forfeiture, among others.
The parties agree that remand is necessary to correct the
restitution order; however, the parties present different theo‐
ries regarding the appropriate restitution calculation. At sen‐
tencing, the government presented a loss chart including fifty
properties for which the government contended Austin was
responsible, totaling $9,134,900. The government now admits
that its chart included financial institutions as “victims” that
the bank fraud statute at the time of Austin’s conduct did not
define as “financial institutions.” See 18 U.S.C. § 20(10) (defin‐
ing a mortgage lending business). The government acknowl‐
edges that “possibly as many as 19 of the properties included
on the government’s loss chart did not have lenders that qual‐
ified as financial institutions on the respective closings. As a
result, the losses for those properties, totaling approximately
$3 million, should not have been included in the restitution.”
Austin, on the other hand, presents a different approach
regarding the proper calculation of the restitution award: He
argues that he should only be required to pay restitution for
losses caused by the counts to which he pleaded guilty,
Counts IX, X, and XI, not all of the properties on the govern‐
ment’s loss chart. Austin claims that the bank fraud “scheme”
to which he pleaded guilty only involved one property and
one financial institution and that he cannot be ordered to pay
restitution for all of the loans described in the indictment (or,
under the government’s current position, for all of the loans
with lenders that qualified as financial institutions at the time

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12 No. 16‐3211
of Austin’s offense conduct). In light of the parties’ recogni‐
tion of the need for remand, we do not address the issue.
With a remand necessary for the recalculation of restitu‐
tion, the other issues Austin raises can be revisited upon re‐
sentencing.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
acceptance of Austin’s guilty plea and VACATE Austin’s sen‐
tence and R EMAND for resentencing.

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