United States of America v. Frank Jordan

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 10, 2022
Decided March 17, 2022
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2429
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK JORDAN
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-CR-00600(1)
Harry D. Leinenweber,
Judge.
O R D E R
For his role in a scheme to defraud the federal Supplemental Nutrition
Assistance Program (“SNAP”), Frank Jordan pleaded guilty to mail fraud. See 18 U.S.C.
§ 1341. He was sentenced to 24 months’ imprisonment and 3 years’ supervised release
and ordered to pay $1,696,651 in restitution. He appeals, but his appointed counsel
asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386
U.S. 738 (1967). Counsel’s brief explains the nature of the case and addresses potential
issues that an appeal of this kind would involve. Because counsel’s analysis appears
thorough, and Jordan has not responded with potential issues for appeal, see C IR . R.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-2429 Page 2
51(b), we limit our review to the issues counsel discusses. See United States v. Bey, 748
F.3d 774, 776 (7th Cir. 2014).
Jordan and his partners in the fraud scheme operated grocery stores in Chicago.
Because they had been previously disqualified as program retailers, they submitted to
the United States Department of Agriculture falsified applications for authorization to
accept SNAP benefits, administered in Illinois through pre-loaded debit cards known as
Link cards. Once the stores were authorized, Jordan violated USDA regulations by
allowing customers to buy ineligible items—like cigarettes—with their Link cards, and
to exchange benefits for cash at a premium.
Jordan was indicted on seven counts of wire and mail fraud and making false
statements. Without an agreement with the government, Jordan pleaded guilty to one
count of mail fraud, supported by a plea declaration detailing his criminal conduct.
The presentence investigation report calculated a range of 57 to 71 months’
imprisonment under the Sentencing Guidelines, based on a criminal history category of
I and a total offense level of 25. Jordan raised two objections to the offense level. First,
he argued that a proposed 4-level increase for his leadership role should be only 2 levels
because the scheme involved only four participants rather than the six identified in the
PSR. See U.S.S.G. § 3B1.1. Second, Jordan challenged a 16-level increase based on the
government’s calculation of an actual loss of $2,635,110. See U.S.S.G. § 2B1.1(b)(1)(I).
That calculation, using the methodology of United States v. Hussein, 664 F.3d 155, 160
(7th Cir. 2011), took the total amount of SNAP benefit redemptions minus the estimated
monthly SNAP-eligible sales during the scheme, on the assumption that the difference
between the estimate of legitimate sales and the actual redemptions reflects the amount
of the fraud. But Jordan believed this formula improperly included some legitimate
sales in the loss amount. Instead, he proposed a 14-level increase based on a loss
amount of $1,244,984, see U.S.S.G. § 2B1.1(b)(1)(H), applying the exchange rate at which
he converted SNAP benefits into cash to his estimate of sales during the relevant period.
The court rejected Jordan’s arguments and adopted the PSR’s sentencing range of
57 to 71 months, but it sentenced Jordan to a below-guidelines sentence of 24 months.
Jordan was also ordered to pay $2,635,110 in restitution to the USDA based on the loss
calculation, though the court later reduced the amount to $1,696,651 so that it would not
exceed what was ordered for a cooperating codefendant.

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No. 21-2429 Page 3
Counsel begins by evaluating the validity of the guilty plea without informing us
whether he had the required consultation with Jordan about whether he wants to
withdraw the plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). But, to
the extent that Jordan would raise such a challenge, we agree with counsel that Jordan
could not raise any nonfrivolous arguments. Jordan did not move to withdraw his plea
in the district court, and so we would review the plea colloquy for plain error.
United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). Here, the court complied
with the requirements of Rule 11 of the Federal Rules of Criminal Procedure and
ensured the plea was knowing and voluntary. See F ED. R. C RIM P. 11(b). Further, the plea
declaration provides that Jordan “understands and voluntarily accepts each and every
term” of the plea, including the rights waived, and he affirmed its terms, and the factual
basis for the plea, under oath at the plea hearing. Thus, counsel is correct that any
challenge on that basis would be frivolous.
Turning to potential sentencing arguments, counsel next considers a challenge to
the calculation of the loss amount for the purpose of determining Jordan’s offense level
under U.S.S.G. § 2B1.1(b)(1). We would review this calculation for clear error and, to
reverse, require a showing that it was “inaccurate and outside the realm of permissible
computations.” United States v. Kennedy, 726 F.3d 968, 974 (7th Cir. 2013) (internal
quotation marks and citations omitted). One permissible method of calculating the loss
amount for SNAP benefits fraud is to subtract the legitimate SNAP-eligible sales from
the total amount of SNAP benefit redemptions at a given location. Hussein, 664 F.3d at
160. When precise evidence of legitimate sales is unavailable, a court may rely on the
estimate of monthly eligible sales in the application to accept SNAP benefits. Id.
Here, the district court adopted the PSR’s loss calculation of $2,635,110, which
was based on the total SNAP benefit redemptions less the estimated legitimate SNAP
benefit sales. As counsel explains, the district court permissibly rejected Jordan’s
argument for a lower amount calculated using the scheme’s exchange rate of cash for
benefits, in favor of the formula we approved in Hussein. Jordan did not have any
authority for his alternative method and did not dispute the estimate of legitimate sales,
so the loss calculation could not be found clearly erroneous.
Counsel does not identify any other potential procedural errors in the prison
sentence or supervised release. The district court addressed the arguments in
mitigation, applied the sentencing factors under 18 U.S.C. § 3553(a), and explained the
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Thus, counsel next discusses
whether Jordan could challenge the substantive reasonableness of the sentence.

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No. 21-2429 Page 4
Counsel concludes that it would be frivolous to argue that the 24-month prison
sentence is unreasonable. The sentence falls below the properly calculated guidelines
range, and so it would be presumed reasonable on appeal. See United States v. Wehrle,
985 F.3d 549, 557 (7th Cir. 2021). Nothing in the record could rebut that presumption.
The court adequately justified the sentence using the statutory sentencing factors,
considering the need to deter SNAP benefit fraud and the seriousness of the offense—
which, the court concluded, was overstated by the guidelines. See 18 U.S.C.
§ 3553(a)(2)(A)–(B). And it expressly considered Jordan’s mitigating arguments
involving his health and level of responsibility for the scheme. Thus, we agree with
counsel that it would be frivolous to argue that the sentence is too high. The same is
true for the within-guidelines term of supervised release.
Counsel also contemplates contesting the district court’s calculation of the
amount of restitution, which we would review for plain error because it was not
challenged in the district court. See United States v. Fennell, 925 F.3d 358, 361 (7th Cir.
2019). Restitution is based on actual loss, see Kennedy, 726 F.3d at 973, and the district
court appropriately calculated, and the evidence supports, an actual loss of $2,635,110.
And the court ultimately imposed a below-loss restitution of $1,696,651 to avoid a
disparity with Jordan’s codefendant.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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