United States of America v. David Swartz

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2459
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
DAVID SWARTZ ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:24-cr-28 — William M. Conley, Judge.
____________________
A RGUED M AY 21, 2025 — DECIDED J ULY 28, 2025
____________________
Before LEE, K OLAR , and M ALDONADO, Circuit Judges.
LEE, Circuit Judge. David Swartz pleaded guilty to two
counts of financial crimes. The presentence report errone-
ously stated the wrong figure for his net worth. At sentencing,
the district court imposed a $10,000 fine. Swartz now argues
that, by relying on incorrect information about his finances,
the district court violated his due process right to be sen-
tenced based on accurate information. He also asserts that the
district court did not comply with statutory requirements in

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2 No. 24-2459
imposing his fine, and asks us to remand for resentencing on
these grounds. We disagree with Swartz’s account of his sen-
tencing and affirm.
I
David Swartz was charged with one count of wire fraud,
in violation of 18 U.S.C. § 1343, and one count of aiding and
assisting the filing of a false tax return, in violation of 26
U.S.C. § 7206(2). He pleaded guilty to both counts. The proba-
tion department prepared a presentence investigation report
(PSR), where it determined that Swartz’s total offense level
was 16. Relevant to this appeal, the PSR stated that the statu-
tory maximum fine for each of the two offenses was $250,000
pursuant to 18 U.S.C. § 3571(b), and that the Guidelines range
for a fine at Swartz’s offense level was $10,000 to $95,000 un-
der U.S.S.G. § 5E1.2(c)(3). In evaluating Swartz’s ability to pay
a fine, the probation department reported that Swartz had to-
tal assets of $356,496 and liabilities of $88,167, resulting in a
net worth of $268,329.
Swartz then submitted his various objections and clarifica-
tions to the PSR, including a correction to the report’s ac-
counting of his assets. The probation department accepted
this correction and updated Swartz’s total assets figure to
$231,496. However, it failed to recalculate and update
Swartz’s net worth, leaving it at $268,329. The PSR’s evalua-
tion that Swartz “may have the ability to pay a fine and sup-
port himself” also remained unchanged. A week before the
sentencing hearing, Swartz filed a memorandum where he
stated that his “only objection to the Revised PSR is the calcu-
lation of his net worth,” and noted that the correct number
should be $143,329.

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No. 24-2459 3
At sentencing, the district court adopted the PSR’s recom-
mendations and found that the probation department had
correctly calculated the Guidelines range. After imposing the
sentence and supervisory release terms, the court ordered a
mandatory special assessment of $200 under 18 U.S.C. § 3013.
The court then ordered Swartz to pay an agreed-upon amount
of $181,915.92 as restitution, due immediately. As part of this
agreement, Swartz had already paid $150,000 and had agreed
to pay an additional $31,915.92 to account for improper earn-
ings and attorney’s fees.
Finally, the court imposed a fine of $10,000, finding that
“[t]he defendant also has the means to pay a fine under
[U.S.S.G.] Section 5E1.2(c) without impairing his ability to
support himself and pay restitution given his significant as-
sets and limited liabilities as well as a positive monthly cash
flow.”
II
Swartz asserts that the imposition of the $10,000 fine de-
prived him of due process because it was based on inaccurate
information. He also contends that the district court’s impos-
ing the fine failed to comply with 18 U.S.C. § 3572.
A
Swartz first contends that the district court committed pro-
cedural error by relying on the PSR’s miscalculated net worth
figure when it imposed the $10,000 fine. We review “claims of
procedural error at sentencing de novo.” United States v. Giles,
935 F.3d 553, 557 (7th Cir. 2019) (citing United States v. Banks,
828 F.3d 609, 618 (7th Cir. 2016)).
A sentencing court commits a “significant procedural er-
ror” by “selecting a sentence based on clearly erroneous

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4 No. 24-2459
facts.” Gall v. United States, 552 U.S. 38, 51 (2007). We have long
recognized a defendant’s “due process right to be sentenced
based on accurate information.” United States v. Pennington,
908 F.3d 234, 239 (7th Cir. 2018) (citing United States v. Tucker,
404 U.S. 443, 447 (1972), and U.S. ex rel. Welch v. Lane, 738 F.2d
863, 864–65 (7th Cir. 1984)). As Swartz sees it, the district
court’s reliance on the incorrect net worth figure in the PSR
amounted to a significant procedural error that violated his
right to due process. But to prevail in his argument, Swartz
“must show that inaccurate information was before the court
and that the court relied upon it.” Pennington, 908 F.3d at 239
(citations omitted). Because the parties do not dispute that in-
accurate information was before the district court, our inquiry
is focused on whether the district court relied on that inaccu-
rate information in determining Swartz’s fine.
We note on the outset that “[t]he standard for determining
whether the district court relied on improper information is a
low one.” United States v. Miller, 900 F.3d 509, 513 (7th Cir.
2018) (quoting United States v. Barnes, 907 F.2d 693, 696 (7th
Cir. 1990)). To meet this standard, Swartz must show that
“false information was part of the basis for the sentence.” Id.
(quoting Lane, 738 F.2d at 865). Reliance occurs when “the
court gives explicit attention to it, founds its sentence at least
in part on it, or gives specific consideration to the misinfor-
mation before imposing sentence.” Id. (quoting United States
v. Chatman, 805 F.3d 840, 844 (7th Cir. 2015)). Showing reliance
does not require a showing of prejudice—in other words, that
the sentence would have been different had the judge been
properly informed. Id.
In Miller, a case Swartz cites, the government erroneously
represented that the defendant had six prior felony

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No. 24-2459 5
convictions when the correct number was five. 900 F.3d at 511.
At sentencing, the district court considered the defendant’s
criminal record a major aggravating factor and repeatedly
misstated the number of prior felony convictions during the
hearing and in its own sentencing memorandum. Id. at 513–
14. We remanded the case for resentencing because “the mis-
counting of [defendant’s] felony convictions … received ex-
plicit attention from the district judge when he selected a sen-
tence” and “the inaccurate statement cannot be separated
from the judge’s primary justification for the sentence.” Id. at
514–15.
We are not so troubled by Swartz’s sentencing. Unlike the
district court in Miller, the court here made no statements dur-
ing the sentencing hearing or in its statement of reasons that
reflect a misunderstanding of Swartz’s net worth. In fact, the
district court never mentioned Swartz’s net worth; it found
that Swartz had the ability to pay the fine “given his signifi-
cant assets and limited liabilities as well as a positive monthly
cash flow.” And Swartz does not dispute that the revised PSR
correctly stated his assets and liabilities.
What is more, Swartz highlighted the miscalculated net
worth number in his sentencing memorandum, and the court
explicitly indicated that it “spent some time with [Swartz’s]
memorandum.” Not only that, but Swartz’s counsel also rec-
ognized that the court “reviewed carefully our sentencing
memorandum.” In light of these facts, we are hardpressed to
find that the district court relied on the erroneous net worth
figure in the PSR. We simply do not see the court expressly
considering the incorrect information as in some prior cases.
See, e.g., United States v. Tucker, 404 U.S. 443, 447 (1972) (find-
ing it “evident that the sentencing judge gave specific

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6 No. 24-2459
consideration to the respondent’s previous convictions before
imposing sentence upon him”); Townsend v. Burke, 334 U.S.
736, 740–41 (1948) (finding the trial court based its sentence
on “materially untrue” assumptions about the defendant’s
criminal record, and declining to assume that “items given
such emphasis by the sentencing court, did not influence the
sentence”); Lane, 738 F.2d 866 (“Here the sentencing court’s
reliance on the misinformation is explicit and incontroverti-
ble.”).
Although Swartz insists that the district court did make a
statement reflecting a misunderstanding of his net worth, he
merely points to the district court’s reference to the PSR gen-
erally while calculating his offense level, with nary a mention
of his net worth. In his view, this reference to the PSR demon-
strates that the district court relied on the misstated net worth
figure and found it accurate. For support, he relies on United
States v. Burke, where we held that “[a] court’s reference to the
PSR constitutes sufficient findings even as to controverted
facts.” 148 F.3d 832, 836 (7th Cir. 1998) (internal citations omit-
ted). But Burke is readily distinguishable. There, we addressed
the sufficiency of the district court’s findings as to contro-
verted matters, and we emphasized that our holding was
“very factually specific” to the case.1 Id. at 834–36. And even
if the district court’s reference to the PSR here could be some-
how construed as a reference to the net worth number, “there
is no reliance” “if the government merely mentions inaccurate
1 Though Swartz’s reliance on Burke is misplaced, we repeat our cau-
tion that “more detail is always better than less in sentencing findings.”
148 F.3d at 836. We encourage district courts to avoid creating appealable
issues like those raised here by resolving all disputed material facts and
objections to the PSR on the record before imposing the sentence.

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No. 24-2459 7
information on which the court does not expressly found its
sentence.” United States v. Dennis, 119 F.4th 1103, 1112 (7th Cir.
2024); see Chatman, 805 F.3d at 845 (holding that the district
court’s general, non-explicit references to defendant’s prior
convictions “hardly rise to reliance that taints the ultimate
sentence”).
Here, there is nothing in the record indicating that the dis-
trict court “g[a]ve explicit attention to” or “g[a]ve specific con-
sideration to” the incorrect net worth figure in the PSR. Miller,
900 F.3d at 513 (citation modified). Nor does the record show
that the court based “its sentence at least in part on it.” Id. If
anything, the court’s careful review of Swartz’s sentencing
memorandum would have drawn its attention to the figure’s
inaccuracy. As a result, the district court did not procedurally
err when imposing the fine on Swartz.
B
Swartz next argues that the district court procedurally
erred by failing to comply with 18 U.S.C. § 3572. First, accord-
ing to Swartz, the district court could not have properly con-
sidered the factors enumerated in § 3572(a), such as his “in-
come, earning capacity, and financial resources,” because it
had an incorrect net worth figure and only considered his fi-
nances at the time of sentencing. Second, he contends, the dis-
trict court failed to heed § 3572(b)’s mandate to impose a fine
only to the extent it would not impair his ability to make res-
titution.
1
When imposing a fine requiring consideration of factors
under § 3572, the district court “need not make specific find-
ings about each factor, but it must be clear from the record

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8 No. 24-2459
that the court has properly considered the relevant factors.”
United States v. Johnson, 131 F.4th 811, 814 (7th Cir. 2025) (in-
ternal quotation marks omitted). If the court considers the rel-
evant factors, we review its factual findings for clear error. Id.
(citing United States v. Lee, 950 F.3d 439, 444 (7th Cir. 2020)).
Swartz does not dispute that the district court considered
his “income, earning capacity, and financial resources.” 18
U.S.C. § 3572(a)(1). But he contends that the court failed to
properly consider these factors due to the PSR’s inaccurate net
worth figure and the adverse impact the sentence would have
on his income.
As we have discussed, the record does not support
Swartz’s contention that the district court relied on his mis-
stated net worth when determining his fine.2 The court’s ex-
press finding relevant to Swartz’s financial resources was that
he had “significant assets and limited liabilities as well as a
positive monthly cash flow.” The PSR accurately stated
Swartz’s assets, liabilities, and cash flow. Based on that infor-
mation, the court determined that Swartz had sufficient
means to pay the fine. This was a “reasoned and reviewable
basis for its decision to impose a fine,” which is “all that is
necessary” to pass muster. United States v. Bauer, 129 F.3d 962,
968 (7th Cir. 1997).
2 Swartz also argues that the district court should have accounted for
the additional restitution of $31,915.92 he had agreed to pay shortly before
sentencing. This is not borne out by the record, which shows that the court
recognized that Swartz had to pay the remaining restitution just before it
imposed the fine. We find it improbable that the court failed to consider
the impact of this additional restitution on Swartz’s ability to pay the fine.

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No. 24-2459 9
Swartz’s second argument fares no better. He asserts that
the district court was shortsighted in finding that he had a
“positive monthly cash flow.” Swartz posits that, because he
would lose most of his monthly income due to his upcoming
incarceration, his positive cash flow is bound to drop. And,
although he acknowledges that his monthly expenses would
also decrease upon his imprisonment, he presumes that such
expenses would resume post-incarceration, while his salary
likely would not, because he would not be able to continue
his current line of work. We are unpersuaded by this line of
argument, particularly considering that Swartz is a seasoned
business professional with a master’s degree in business ad-
ministration and a six-figure net worth when all is said and
done. See United States v. Ramusack, 928 F.2d 780, 783 (7th Cir.
1991) (per curiam) (rejecting defendant’s argument that “he
did not have the ability to pay [the fine] in light of the agreed
restitution, and because his lengthy sentence precludes him
from working,” given the defendant had “over a quarter of a
million dollars” remaining after paying restitution); cf. United
States v. Karam, 201 F.3d 320, 330 (4th Cir. 2000) (“A negative
net worth at the time of sentencing does not necessarily indi-
cate an inability to pay, especially when the PSR establishes
that a defendant has knowledge and skills in the areas of fi-
nancial planning, business administration and corporate
strategies.”).
More broadly, Swartz fails to show that the court did not
comply with § 3572(a) because the record supports the court’s
proper consideration of the enumerated factors. Certainly, in
the past, we have found it “unclear that the district court
properly has considered the relevant factors” when the court
“adopts the factual findings contained in the presentence re-
port but deviates from the fine recommendation,” or when

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10 No. 24-2459
the court “declines to adopt the findings in the presentence
report and makes no findings of its own.” Bauer, 129 F.3d at
968. But neither defect is present here; the district court
adopted the findings in the PSR, and the $10,000 fine was the
low end of the recommended range.
Indeed, in those instances when we have found remand
appropriate, the sentencing court provided little—if any—ba-
sis for imposing the fine in question. See, e.g., Johnson, 131
F.4th at 812 (“[W]e simply lack an explanation that allows us
to review the court’s discretionary decision”); United States v.
Monem, 104 F.3d 905, 912 (7th Cir. 1997) (finding that the dis-
trict court had not made the requisite factual findings justify-
ing the fine, where the PSR and the government both recom-
mended against imposing a fine); United States v. Vargas, 16
F.3d 155, 159 (7th Cir. 1994) (finding that the district court
“never discussed … the appropriateness of the fine … and
never mentioned the presentence report’s analysis of [defend-
ant’s] financial condition”).
By contrast, the district court here adopted the PSR and
explicitly noted the PSR’s accounting of Swartz’s “significant
assets and limited liabilities as well as a positive monthly cash
flow.” This provided an adequate basis to support Swartz’s
fine under § 3572(a), and it was not clearly erroneous for the
court to find that Swartz could afford it.
2
Finally, Swartz claims that the district court erred by or-
dering a $10,000 fine that would impair his ability to pay res-
titution, in violation of 18 U.S.C. § 3572(b), which permits a
fine “only to the extent that such fine … will not impair the
abilty of the defendant to make restitution.” We quickly

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No. 24-2459 11
dispense with this argument, not with legal analysis but with
simple math.
Swartz’s correct net worth of $143,329 is more than four-
teen times the $10,000 fine. He would still have $133,329 after
paying the fine, which is more than enough to cover the re-
maining restitution amount of $31,915.92. We fail to see how
the court contravened § 3572(b) when the $10,000 fine in no
way impaired Swartz’s ability to make restitution.
We AFFIRM the judgment of the district court.

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