ROVNER, Circuit Judge.
Defendant-Appellant Francis Alan Schmitz pleaded guilty to a charge of mail fraud and was ordered to serve 84 months in prison, a term slightly below the low end of the sentencing range advised by the Sentencing Guidelines. Schmitz contends that the district court committed two errors in sentencing him: (1) a procedural error, when it failed to address his contention that "factor creep" in the Guidelines has inflated beyond reason the sentencing range for white collar frauds, and particularly for someone of his age and health; and (2) relied on an erroneous understanding of the timespan of the fraud to which he pleaded guilty. Finding that the district court committed no procedural or factual error in sentencing Schmitz, we affirm.
Pursuant to a written plea agreement, Schmitz pleaded guilty to one count of a criminal information charging him with mail fraud affecting a financial institution, in violation of 18 U.S.C. § 1341. (A second count charging him with committing bank fraud in violation of 18 U.S.C. § 1344 was dismissed on the government's motion at sentencing.) Beginning in or about July 2003, Schmitz had convinced a series of financial institutions and others to lend him money, ostensibly to invest in real estate development, by telling these institutions that he was the beneficiary of a multi-million dollar trust fund whose assets were available as collateral for the loans. In fact, there was no trust and no trust assets. But Schmitz concocted a convincing trail of paper and digital documents (including trust account statements, tax returns, emails, and letters) making it appear as if there were, going so far as to create a phony financial services firm (with a website and virtual office space) that purportedly held assets of the fictitious trust, and then to file suit in state court against two (fictitious) employees of the (non-existent) firm claiming that they had mishandled the (non-existent) trust. Ultimately, Schmitz was able to obtain more than $6 million from seven banks and two additional lenders. He used just under half of that total to pay off previous lenders, in Ponzi-like fashion. The rest — roughly $3.1 million — he used to benefit himself and his personal business ventures, and this amount marked the extent of the lenders' collective loss.
The plea agreement anticipated that Schmitz's adjusted offense level would be 28, after a three-level reduction for acceptance of responsibility; that his criminal history category would be I; and that his Guidelines sentencing range would be 78 to 97 months. Despite a skirmish at sentencing as to whether Schmitz had forfeited his entitlement to credit for acceptance of responsibility by submitting to the court
Schmitz sought a substantially below-Guidelines sentence of 36 months, and among his arguments in support of a reduced sentence were two that are relevant to this appeal. He contended that the Guidelines specified an excessive sentence for someone convicted of a white collar crime like fraud, and that because his age (60) combined with a variety of health conditions meant he had both a shorter life expectancy and a lower risk of re-offending, a sentence within the advisory range was greater than necessary to serve the statutory sentencing goals set forth in 18 U.S.C. § 3553(a)(2).
The first of these arguments was focused on the substantial lengthening of the Guidelines sentencing range for fraud, larceny, and similar offenses that has occurred over the last two decades. The longer sentences for such offenses are in the main the result of a three-fold increase in the number of specific offense characteristics (from six to 18) incorporated into the fraud guideline, see U.S.S.G. § 2B1.1(b), a phenomenon that has been described as "factor creep," see R. Barry Ruback & Jonathan Wroblewski, The Federal Sentencing Guidelines: Psychological and Policy Reasons for Simplification, 7 Psychol. Pub. Policy & L. 739, 752-53 (2001), coupled with a substantial increase in the number of points imposed for the amount of the loss, a longstanding and central offense characteristic in fraud and theft cases, see § 2B1.1(b)(1).
Schmitz secondarily argued that for a person of his age and with his health conditions, a within-Guidelines sentence would occupy virtually all of the remaining productive years of his life. Schmitz was 60 years old at time of sentencing, with an average remaining life expectancy of 20.6 years. However, Schmitz also had been diagnosed with high blood pressure, high cholesterol, coronary heart disease, and an enlarged prostate. Schmitz was taking medications for each of these conditions, including Lisinopril and hydrochlorothiazide (for high blood pressure), Simvastatin (for high cholesterol), low-dose aspirin (for the heart), and Terazosin (for the prostate); and he presented no evidence that any of his conditions was life-threatening or life-shortening even with medication. He nonetheless argued that these conditions distinguished him from other persons convicted of fraud offenses for sentencing purposes in that they reduced his life expectancy as well as his likelihood of re-offending. In Schmitz's view, there was no empirical data to suggest that for someone of his age and health, a within-guidelines sentence was no greater than necessary to achieve deterrence and the other sentencing goals set forth in 18 U.S.C. § 3553(a).
The district court implicitly rejected the first of these arguments and expressly rejected the second. Judge Pallmeyer observed that she agreed with Schmitz's contention that it is the fact rather than length of incarceration that matters for the purpose of deterring white collar criminals (R. 72 at 34-35), which suggests that she had taken note of his policy-based challenge to the fraud guideline. Beyond that one remark, however, she did not address the merits of the challenge. She did address Schmitz's health issues, observing that these conditions were not uncommon for someone of his age, and expressed confidence that adequate treatment was available in prison for them. R. 72 at 33-34.
In passing sentence, Judge Pallmeyer took note of the Guidelines range and indicated that the defense might be right when it contended that a criminal history category of II overstated the extent of Schmitz's criminal background. After addressing Schmitz's health concerns, the judge noted the aggravating and mitigating factors that she found relevant. She remarked that Schmitz's fraud had been "longstanding and very comprehensive" (R. 72 at 34); that it had been implemented in a sophisticated way; and that it had injured his family as well as the victims of the offense. On the plus side, she found that Schmitz's remarks at sentencing reflected a genuine acknowledgment of responsibility for his crime. She also commended Schmitz's efforts, during the period of his pre-sentence
Schmitz's first contention is that the district court committed procedural error by failing to address his argument that the court should abandon the fraud guideline in determining a reasonable sentence, in that the Sentencing Commission had neglected its institutional role and had allowed factor creep to substantially increase the penalties for fraud offenses without empirical data to suggest that harsher penalties were necessary.
The district court's ultimate obligation is to impose a sentence that is reasonable in light of the sentencing criteria set forth in 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005); United States v. Dean, 414 F.3d 725, 730-31 (7th Cir.2005). The advisory Guidelines range, accurately determined, provides "`the starting point and the initial benchmark'" for the court's sentencing determination. Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 574, 169 L.Ed.2d 481 (2007) (quoting Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)); see also Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007); United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009). The court must then look to the section 3553(a) factors in order to ascertain the appropriate length of the defendant's sentence. See Gall, 552 U.S. at 49-50, 128 S.Ct. at 596-97; see also, e.g., United States v. Vallone, 698 F.3d 416, 497 (7th Cir.2012), pet'n for cert. filed, No. 12-1056, 2013 WL 703419 (U.S. Feb. 25, 2013). After making its determination, the court must articulate the reasons for its choice of sentence. United States v. Patrick, 707 F.3d 815, 818 (7th Cir.2013). The explanation need not be exhaustive, see Rita, 551 U.S. at 356, 127 S.Ct. at 2468, but it must be sufficient to satisfy this court that the sentencing judge has given meaningful consideration to the section 3553(a) factors and the parties' arguments in determining how long the defendant's sentence should be, see ibid.; Patrick, 707 F.3d at 818-19. This will entail some discussion of any significant argument the defendant has made with respect to his characteristics that might bear on the length of the sentence. Id. at 819. Rote and frivolous arguments may be left unmentioned; "`[i]f anyone acquainted with the facts would have known without being told why the judge had not accepted the argument,' then the judge need not specifically address that point." Id. (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)); see also United States v. Young, 590 F.3d 467, 474 (7th Cir.2009). If, on the other hand, a defendant's argument in mitigation has sufficient merit as to cause one to wonder, in the absence of an explanation, why the court rejected it, then the court must address it explicitly. See Patrick, 707 F.3d at 819; United States v. Vidal, 705 F.3d 742, 744 (7th Cir.2013).
The court did not commit procedural error in failing to address Schmitz's factor creep argument. That was Schmitz's principal argument for a below-Guidelines sentence, and we often observe that a sentencing judge is obliged to address a defendant's principal argument in mitigation. See, e.g., Vidal, 705 F.3d at 744; United States v. Garthus, 652 F.3d 715, 718 (7th Cir.2011) (coll. cases), cert. denied, ___ U.S.___, 132 S.Ct. 2373, 182
Nor do we think that the court committed any error, procedural or otherwise, with respect to Schmitz's health and age. As we have noted, the district judge expressly addressed this argument, but found that none of Schmitz's conditions was out of the ordinary for a person of his age and that all could be appropriately treated during his incarceration. Schmitz
Finally, we do not think that the district court committed a material factual error as to the duration of the charged fraud offense that requires correction. Schmitz's argument in this regard stems from a remark about his "fraud scheme" that the judge made in assessing the gravity of the offense. In context, what the judge said is this:
R. 72 at 34-35 (emphasis ours). Schmitz interprets the highlighted remarks as an erroneous finding by the judge that the charged scheme to defraud the banks dated back to 1996, some seven-plus years before it actually began. But what prompted the judge's remark was the shroud of mystery that enveloped Schmitz's employment history from 1996 onward. The probation officer had been largely unable to verify Schmitz's reported work as a consultant in those years (see R. 73 PSR at 20-21); the limited, available information as to Schmitz's income during those years (including what he had reported to Pretrial Services, and what his wife had believed he was earning) was inconsistent (see R. 73 PSR at 21); and Schmitz's wife, in her own effort to sort out the couple's finances, "ha[d] discovered an overwhelming abundance of information indicative of the defendant's deception throughout the last 15 years" (R. 73 PSR at 18). In context, it is apparent to us that
The judge could not have been laboring under a misunderstanding that the charged scheme to defraud had begun as early as 1996. The criminal information (R. 9 at 2), the plea agreement (R. 21 at 3), the remarks by both the prosecutor and Schmitz at the change of plea hearing (R. 71 at 16-17, 28), and the parties' pre-sentencing memoranda (R. 23 at 3-4; R. 27 at 1; R. 52 at 2) all indicated to the court that the charged scheme began in or about 2004. In her presentence report, the probation officer advocated pushing that date back to July 2003, so as to take account of a bank loan that Schmitz had fraudulently obtained at that time from CitiFinancial (and which he later paid off). R. 73 PSR at 4-5.
In sum, the district court's mistake (if any) lay in its word choice rather than any misapprehension as to the beginning and duration of the charged scheme. We therefore discern no need to remand the case for clarification on this point. It was a plausible inference that Schmitz's history of fraud began well before the charged scheme did; and we do not think there is any real possibility that the sentencing judge blurred the distinction between the two in evaluating the pertinent sentencing factors. For example, standing alone, the charged scheme, which lasted well over six years, was both serious and lengthy, as the court said it was. In short, there is no real possibility that the court was mistaken about the duration of the charged crime, let alone that such an error affected the court's evaluation of the Guidelines and statutory factors and its choice of sentence.
Having concluded that the district court committed no procedural or factual error in sentencing Schmitz, we AFFIRM his sentence.