United States of America v. Theresa A. Kelly

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 24, 2025
Decided February 25, 2025
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1848
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THERESA A. KELLY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 4:22-CR-40052-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Theresa Kelly pleaded guilty to a six-count indictment charging her with making
false statements to her federal employer, obstructing justice in a federal civil case, and
defrauding Medicare. See 18 U.S.C. §§ 1001, 1503, 1347. She was sentenced to 10 months’
imprisonment. Despite a broad appeal waiver in her plea agreement, Kelly filed a notice
of appeal. Her appointed counsel asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains
the nature of the case and addresses potential issues that an appeal of this kind would
typically involve. Because counsel’s analysis appears thorough and Kelly did not
respond to the motion, see C IR . R. 51(b), we limit our review to the subjects identified in
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1848 Page 2
the brief. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We grant the motion
and dismiss the appeal.
Kelly, a psychologist employed by the Veterans Administration, engaged in
fraudulent conduct for over four and a half years. Between May 2016 and January 2018,
she submitted false claims to Medicare, ultimately defrauding the agency of $35,795.94.
Between November 2016 and August 2020, she submitted false medical records to the
Administration for the purpose of obtaining medical leave. And in December 2020,
during a civil lawsuit in federal court, she provided her attorney with false medical
information that became the basis for a continuance granted by the court.
Kelly was charged with six counts. Four arose from false records she submitted
to the Administration: one for concealing the fact that she lacked legitimate medical
documents, and three for making false writings. 18 U.S.C. § 1001(a)(1), (3). A fifth was
for obstruction of justice, 18 U.S.C. § 1503, in connection with the false statement made
to obtain a continuance. And a sixth was for health care fraud, 18 U.S.C. § 1347, arising
from the false claims sent to Medicare.
Kelly pleaded guilty to all counts. The written agreement contained a broad
appellate waiver in which Kelly agreed to waive her right to file a direct appeal
challenging her conviction and sentence.
The probation office prepared a presentence investigation report (PSR) that
assessed Kelly’s guidelines range at 10 to 16 months (based on a total offense level of 12
and a criminal history category of I). These recommendations were adopted by the
district court, which sentenced Kelly to 10 months’ imprisonment and 3 years’
supervised release. The court also required her to pay $35,795.94 in restitution.
In his brief, counsel first states that he advised Kelly about the risks and benefits
of challenging the guilty plea and determined that she does not seek to withdraw her
plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel therefore
properly omits discussion of whether the plea was knowing and voluntary. See United
States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024).
Counsel considers whether Kelly could challenge her sentence and rightly
concludes that the appellate waiver would foreclose any challenge. An appellate waiver
stands or falls with the underlying plea agreement, United States v. Nulf, 978 F.3d 504,
506 (7th Cir. 2020), and Kelly waived her right to “contest any aspect of[] the conviction
or sentence in any type of proceeding.” One exception to the waiver allowed Kelly to

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No. 24-1848 Page 3
challenge the substantive reasonableness of her sentence if it was in excess of the
guidelines range, but here her 10-month prison term was within the guidelines
calculation adopted by the court.* Moreover, the sentencing transcript reflects that the
court did not consider any constitutionally impermissible factors at sentencing. See
United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). Kelly’s restitution was
required by 18 U.S.C. § 3663A, and her $600 special assessment was required by
18 U.S.C. § 3013(a)(2)(A).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
* We note that the PSR included a harmless typographical error. In its discussion of specific
offense characteristics, it stated that a “four-level increase is applicable” for an intended loss in the
offense of $54,275. (PSR ¶ 55.) That is incorrect; the Guidelines direct that a sum greater than $40,000 and
less than $95,000 warrants a six-level increase. See U.S.S.G. § 2B1.1(b)(1). The error is harmless, however,
because the PSR’s offense-level computations applied the proper six-level increase.

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