United States of America v. Robert J. Solberg

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 14, 2024*
Decided June 17, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
Nos. 23-3087 & 24-1327
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT J. SOLBERG,
Defendant-Appellant.
Appeals from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-CR-247
William C. Griesbach,
Judge.
O R D E R
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
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Nos. 23-3087 & 24-1327 Page 2
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

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Nos. 23-3087 & 24-1327 Page 3
“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,

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Nos. 23-3087 & 24-1327 Page 4
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.

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Nos. 23-3087 & 24-1327 Page 5
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

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