United States of America v. Carey Portman

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1083
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CAREY PORTMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 64—Blanche M. Manning, Judge.
ARGUED SEPTEMBER 11, 2009—DECIDED MARCH 22, 2010
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. A jury found Carey Portman
guilty of multiple counts of mail fraud, wire fraud, bank
fraud, and possessing and creating falsely altered checks.
After the application of various sentencing enhance-
ments, Portman was sentenced to 60 months’ imprison-
ment, which was at the low end of the applicable guide-
line range of 57-71 months. Following a limited remand
due to a miscalculation of the number of victims, the

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2 No. 09-1083
district court resentenced Portman to 48 months’ imprison-
ment, again a sentence near the low end of his new 46-57
months guideline range. On appeal, Portman argues his
sentence is substantively unreasonable because the
district court did not reduce Portman’s sentence due to
his diminished capacity and lack of success of his crim-
inal endeavors. Because there is no causal link between
his alleged diminished capacity and his crime, and
because the district court properly exercised its discretion
in determining the seriousness of Portman’s intended
crimes, we affirm Portman’s sentence.
I. BACKGROUND
According to Carey Portman, he is an important Pana-
manian ambassador and businessman. Sometimes, he is
also the lucky inheritor of a Nigerian fortune. In 2003,
armed with purported Nigerian inheritance documents,
Portman went to a Citibank branch office in Chicago,
Illinois, and demanded a loan of $102,824 in order to
pay the inheritance tax and receive his inheritance.
Citibank’s branch manager attempted to convince
Portman that this was a well-known scam, but he was
unsuccessful and Portman’s account was closed. Portman
then attempted this same scheme with several individual
businessmen. Though largely unsuccessful, Portman
did receive $50,000 from one man he had known for
four years.
When he acted as the Panamanian ambassador-business-
man, Portman would tell managers at Chicago banks that
they could expect him to do a lot of business with the
bank. He would then deposit a large, forged check and

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No. 09-1083 3
attempt to immediately withdraw a portion of the money.
In September 2003, Portman presented for deposit a
$125,000 cashier’s check, which had originally been issued
for $20, payable to “Hon. Carey Portman” at the Oak Brook
Bank in Chicago. Oak Brook Bank credited Portman’s
account, allowing him to withdraw over $81,000 before
the initial deposit was reversed. By reversing transfers
and stopping payment, the bank incurred an actual loss
of $29,859.81. Portman attempted a variation of this
scheme at several other Chicago banks. In Novem-
ber 2003, Portman opened an account at North Com-
munity Bank, again identifying himself as an important
ambassador to Panama. A few days later, Portman pre-
sented for deposit a fraudulent $155,000 check made
payable to the “Hon. Carey Portman.” Portman attempted
to immediately withdraw some money, but the bank
refused to comply because the check was not issued by
a local bank. North Community Bank eventually informed
Portman that the check was counterfeit and closed his
accounts. In December 2003, Portman unsuccessfully
attempted to cash a $100,000 counterfeit cashier’s check
at Washington Mutual. That same month, “ambassador”
Portman opened an account at TCF Bank. A few weeks
later, he deposited a fraudulently altered $128,000
check made payable to “Carey Portman.” TCF bank
allowed Portman to withdraw $2,000 before learning the
check was falsely altered. After issuing a stop payment
order on Portman’s checks, TCF’s actual loss totaled
$1,239.51.
Portman was charged with multiple counts of mail
fraud, wire fraud, bank fraud, and possessing and

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4 No. 09-1083
uttering falsely altered securities, in violation of 18 U.S.C.
§§ 513(a), 1341, 1343, and 1344. A jury convicted Portman
of all counts. At sentencing, the presentence investiga-
tion report (“PSR”) calculated the base offense level at
seven, added 16 levels for an intended loss of over
$1 million, and two levels for involvement of more than
10 victims, for a total offense level of 25 and a sen-
tencing guideline range of 57-71 months. Portman asked
for a sentence below his guideline range based on a
dispute over the number of victims, the actual loss, and
his diminished capacity due to an alleged organic brain
disorder.
After applying the 18 U.S.C. § 3553(a) sentencing
factors, the district court declined to impose a below-
guideline sentence. The judge balanced the seriousness
of the offense, various letters of recommendation on
Portman’s character, the risk of recidivism and the need
to protect the public from Portman in imposing a sentence
of 60 months’ imprisonment. After the court sentenced
Portman, the government conceded it had miscalculated
the number of victims. The parties filed a joint motion
for limited resentencing to correct the number of victims,
and Portman was resentenced to 48 months’ imprison-
ment. During this limited resentencing, the district court
did not revisit arguments for a reduced sentence based
on intended loss amount or diminished capacity.
On appeal, Portman makes two arguments. First, he
argues that the district court abused its discretion by
failing to resolve the issue of Portman’s diminished
capacity and not reducing Portman’s sentence due to his

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No. 09-1083 5
diminished capacity. Second, he argues that the district
court abused its discretion by not reducing Portman’s
sentence on the theory that the loss calculation of over
$1 million overstated the seriousness of his offense.
II. ANALYSIS
A. Diminished Capacity
Portman argues that the district court should have
imposed a below-guidelines sentence because Portman
suffered from a diminished capacity that substantially
contributed to the commission of the offense. Prior to the
Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), a defendant’s diminished capacity
could serve as the basis of a downward departure from
a guideline range. See U.S.S.G. § 5K2.13. Of course,
Booker rendered the guidelines advisory and departures
became obsolete. United States v. Blue, 453 F.3d 948, 952
(7th Cir. 2006). Post-Booker, sentencing courts have the
discretion to decide that a sentence outside the guide-
line range is appropriate. Id. Where a district court has
properly calculated the guideline range, we review sen-
tences for reasonableness, using an abuse of discretion
standard. United States v. Panaigua-Verdugo, 537 F.3d 722,
727 (7th Cir. 2008). The district court judge is given
great deference in balancing the § 3553(a) sentencing
factors, and a sentence that falls within a properly calcu-
lated guideline range is presumptively reasonable. Id.
However, when a defendant has raised “nonfrivolous
reasons to impose a different sentence, the district court

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6 No. 09-1083
Diminished capacity is further defined in the following 1
application note:
“Significantly reduced mental capacity” means the
defendant, although convicted, has a significantly
(continued...)
must focus on the § 3553(a) factors as they apply to [that
defendant] in particular.” United States v. Miranda, 505
F.3d 785, 796 (7th Cir. 2007). It must provide enough
explanation so that someone familiar with the case
would understand why the court rejected the argument.
United States v. Cunningham, 429 F.3d 673, 679 (7th
Cir. 2005).
Diminished capacity is a ground of “recognized legal
merit” for seeking a lesser sentence, Miranda, 505 F.3d
at 792, and we have found abuse of discretion when
judges have not considered or addressed uncontested
evidence of diminished capacity. See, e.g., United States v.
Williams, 553 F.3d 1073, 1084 (7th Cir. 2009); Miranda, 505
F.3d at 792. In relevant part, the diminished capacity
policy statement reads:
A downward departure may be warranted if
(1) the defendant committed the offense while
suffering from a significantly reduced mental
capacity; and (2) the significantly reduced mental
capacity contributed substantially to the commis-
sion of the offense. Similarly, if a departure is war-
ranted under this policy statement, the extent of
the departure should reflect the extent to which
the reduced mental capacity contributed to the
commission of the offense. U.S.S.G. § 5K2.13 1

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No. 09-1083 7
(...continued) 1
impaired ability to (A) understand the wrongfulness of
the behavior comprising the offense or to exercise
the power of reason; or (B) control behavior that the
defendant knows is wrongful.
So if there is a nonfrivolous dispute about a defendant’s
mental capacity, a sentencing court should address the
issue, making a finding on whether the defendant suffers
from diminished capacity and whether that diminished
capacity contributed substantially to the commission of
the crime. This is true of any disputed fact that may be
decisive in sentencing. Fed. R. Crim. P. 32(i)(3); see
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005)
(“A judge who thinks that a particular contested char-
acteristic of a defendant may be decisive to the choice
of sentence, such as the defendant’s mental or
emotional state, must resolve the factual issue. . . .”).
Here, the district court made no such finding, stating
there was no need to resolve whether Portman has ever
suffered from diminished capacity because Portman had
not linked the diminished capacity to § 3553(a) factors
which would show that he should receive a lower sen-
tence. Furthermore, the district court stated that a
finding of diminished capacity would, if anything, impact
sentencing as a potentially aggravating factor. In its
sentencing order, the district court focused almost
entirely on the risks of recidivism, stating that a person
who cannot appreciate the criminality of his conduct
will be “more rather than less likely to be a recidivist,

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8 No. 09-1083
a factor under § 3553(a) that would favor a longer sen-
tence.” In reaching this conclusion, the district court
heavily relied on United States v. Beier, 490 F.3d 572 (7th
Cir. 2007), a child pornography case in which the defen-
dant argued that § 3553(a) required a below-guidelines
sentence due to the defendant’s own abuse as a child
and low IQ. There, we held that a defendant must show
why personal characteristics act as a mitigating, not
potentially aggravating, factor in a case where the defen-
dant may not be able to control his sexual impulses.
Beier, 490 F.3d at 574. This is true of many personal charac-
teristics, such as age. A young defendant might argue
that his age is a mitigating factor if the defendant has
strong ties to a supportive family, but age could also be
used as an aggravating factor if the young defendant
already has an extensive criminal history. See United
States v. Jackson, 547 F.3d 786, 794-95 (7th Cir. 2008).
Diminished capacity and personal characteristics in-
creasing risks of recidivism, however, are two different
issues. To use a finding of diminished capacity as an
aggravating factor for sentencing purposes misunder-
stands the relationship between U.S.S.G. § 5K2.13 and
18 U.S.C. § 3553(a). The principal purposes of a criminal
sentence are to further goals of retribution, deterrence, and
incapacitation. See United States v. Dyer, 216 F.3d 568,
570 (7th Cir. 2000). The sentencing guidelines and the
§ 3553(a) factors ensure that judges consider these pur-
poses when sentencing defendants. A person who
cannot understand the wrongfulness of his actions or
control his actions due to a reduced mental capacity is

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No. 09-1083 9
less culpable and less able to be specifically deterred
than a person who is not mentally ill, and a long sentence
for such a defendant may not serve the purposes of
punishment. Id. For these reasons, § 5K2.13 gives judges
the discretion to reduce sentences for defendants
suffering from diminished capacity. A finding of dimin-
ished capacity could also lead to the conclusion that the
most effective way of incapacitating the defendant and
preventing him from committing further crimes is to
provide needed medical care outside a prison setting.
See Miranda, 505 F.3d at 793. The potentially greater
risk of recidivism in a defendant with diminished
capacity can be addressed through different means such
as psychological treatment or monitoring. It is a mis-
understanding of diminished capacity to suggest that
because reduced mental capacity would make recidi-
vism more likely, an increased sentence would be neces-
sary. Of course, it could also be that a district court
could find diminished capacity but choose not to reduce
a sentence. For example, a court could find that the de-
fendant would remain dangerous after treatment. Id.
Or, the court could rule that any diminished capacity
did not contribute to the commission of the offense.
United States v. Frazier, 979 F.2d 1227, 1230 (7th Cir. 1992).
But the potential impact of a diminished capacity
finding in Portman’s case is not an issue we need to reach
here. Even if Portman is correct that the district court’s
lack of a finding was error and its discussion of
diminished capacity’s impact on sentencing faulty, any
error was harmless. Based on the evidence submitted to
the court, the district court could not have found that

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10 No. 09-1083
any diminished capacity Portman allegedly suffered sub-
stantially contributed to his commission of these crimes.
Pre-trial, Portman’s attorney requested a psychiatric
examination to determine whether Portman was sane.
Dr. Nelson Borelli, a psychiatrist who testified as an
expert witness in psychiatry in forty to fifty Illinois
state court cases, was appointed to conduct this exam-
ination. Between December 2004 and November 2005,
Dr. Borelli spent forty-five hours evaluating Portman and
reviewing his medical history. In his November 7, 2005
report (“initial report”), Dr. Borelli stated his opinion
was that Portman had a defective “emotional/cognitive
system.” He also indicated that this opinion was “specula-
tive” because of Portman’s unwillingness to “step out of
what appears to be his dream life and spell out his
internal world of depression and despair.” He noted that
Portman exhibited no outward signs of psychiatric dys-
function or disease and that testing revealed no mental
defect or disease. Dr. Borelli did not speak to anyone
else in Portman’s life or to investigators about the
charges, and did not substantiate any claims Portman
made with external information. Then, in 2007, Dr. Borelli
performed a three-hour psychiatric examination on
Portman in preparation for the sentencing hearing. In this
two-page report, he concluded that Portman’s mental
condition met the legal standard of diminished capacity,
as Portman had committed the offense while suffering
from a “cognitive disorder” that substantially contrib-
uted to the commission of the offense. There was no
specific mention of how the diminished capacity was
connected to Portman’s specific actions underlying the
criminal charges.

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No. 09-1083 11
At the sentencing hearing, the government stipulated
that Dr. Borelli was a qualified medical expert in the field
of psychiatry, and both his reports were submitted as
evidence. Dr. Borelli also testified that Portman had a
cognitive disorder, potentially linked to an organic
brain injury or lesions in the brain. Dr. Borelli stated
his “best guess” was that this brain defect was linked to
Reye’s Syndrome, which Portman claimed to have been
diagnosed with when he was twelve years old. No inde-
pendent medical report confirmed Portman’s affliction
with Reye’s Syndrome. Dr. Borelli referred Portman to
two different neurologists, but they never found any
injury or lesions in Portman’s brain. When pushed on
this point during his testimony, Dr. Borelli stated that his
final diagnosis of “cognitive disorder” was a result of
Portman’s attorney wanting Dr. Borelli to “put something
there” with respect to diminished capacity and that
“cognitive disorder is as close as you can come to any-
thing.” Further, Dr. Borelli stated he may have first
learned the definition of diminished capacity when he
met with Portman’s attorney before his 2007 three-hour
examination of Portman.
Even if the district court could have relied on
Dr. Borelli’s opinion that Portman had a significantly
reduced mental capacity at the time of his offense, a legal
diminished capacity finding also requires a causal link
between the mental capacity and the crime. Jackson, 547
F.3d at 796. No such connection was made here. In
United States v. Frazier, we held that a connection
between mental capacity and the actions underlying
the criminal offense could not be assumed. 979 F.2d at

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12 No. 09-1083
1230. Dr. Borelli needed to analyze the specific charges
Portman was convicted of committing and relate
Portman’s actions to his mental capacity, but he did not
do that. In fact, Dr. Borelli seemed unclear as to what
crimes Portman committed. He stated that while he
had discussed the charges with Portman’s initial attor-
ney, he had little to no understanding of the details
of Portman’s charges since he did not think it was im-
portant to know what Portman allegedly did. In his
initial report, he inaccurately referred to the charges as
“internet fraud accounts,” and at the hearing, he stated
that he didn’t have the capacity or time or the “disposition
or the ability to read all these legal documents.” Dr. Borelli
further stated that he was not concerned about the
legal definition of diminished capacity, testifying that
he did not “spend much time trying to understand that
legal thing” as “the legal language is not always clear.”
Based on Dr. Borelli’s testimony and two reports, the
district court could not have found that Portman’s
alleged diminished capacity substantially contributed
to the crimes committed. Dr. Borelli derived his under-
standing of the causal link between Portman’s dimin-
ished capacity and his crimes based only on information
Portman provided. He did not confirm Portman’s ac-
count of his crimes and did not seem to fully understand
the criminal charges. See Frazier, 979 F.2d at 1230. Given
the lack of a causal link between Portman’s purported
mental capacity and the crimes, there was no reversible
error in the district court’s failure to explicitly determine
whether Portman had a significantly reduced mental
capacity. We conclude that Portman’s unproven mental

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No. 09-1083 13
illness, the lack of evidence of a causal link between
any illness and the crimes committed, and the other
relevant factors, did not compel a sentence below the
advisory guidelines range.
B. Loss Calculation
Next, Portman argues that the district court abused
its discretion when it refused to reduce his sentence
based on the difference between the intended loss of
his schemes and the actual loss. Again, we review
Portman’s sentence for reasonableness under an abuse
of discretion standard. Jackson, 547 F.3d at 792. In cal-
culating sentence enhancements based on economic
loss, “loss” is the greater of actual loss or intended loss.
U.S.S.G. § 2B1.1(b)(1) cmt. n.3(A). Intended loss is the
pecuniary harm intended to result from the offense and
includes harm that would have been impossible or
unlikely to occur. Id.; see also United States v. Kimoto, 588
F.3d 464, 496 n.37 (7th Cir. 2009). Portman does not
dispute the calculation of the intended loss. He argues
instead that the intended loss overstates the seriousness
of the offense and so, the district court judge should
have exercised her discretion to set a below-guideline
sentence. A court can consider the amount of variance
between the intended loss and the realistic possibility
of loss when considering an appropriate sentence.
United States v. Stockheimer, 157 F.3d 1082, 1091 (7th Cir.
1998). This decision, however, remains in the sentencing
judge’s wide discretion, and our review may only eval-
uate the overall reasonableness of the sentence imposed.

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14 No. 09-1083
Here, the district court judge considered Portman’s
arguments for a sentence below the advisory guidelines
range, but found that the intended loss adequately re-
flected the seriousness of the offense. The PSR calculated
the intended loss amount to be $1,020,825. This calcula-
tion is based on Portman’s attempts to obtain approxi-
mately $512,825 in loans from various individuals and
businesses with his Nigerian inheritance scheme and
Portman’s attempts to obtain $508,000 from various
banks through falsely altered and counterfeit checks. Of
course, the actual loss suffered was much less: $50,000
from one businessman and $31,099.32 from the banks.
Although the judge could have reduced the sentence
based on the actual loss amount, she was not required
to do so. The judge did not ignore Portman’s request for
a reduced sentence based on loss calculation; she ad-
dressed its merits. In finding a reduced sentence unwar-
ranted, the district court judge emphasized the successes
that Portman had in his schemes and found that most
of the banks initially accepted his fraudulent checks.
The judge gave an adequate and thorough statement of
reasons, and took into account the § 3553(a) sentencing
factors. Specifically, in relating the seriousness of the
offense to the § 3553(a) sentencing factors, the district
court judge emphasized how Portman moved from one
victim to the next, undeterred by his lack of success. The
court’s statement of reasons was sufficient “to allow for
meaningful appellate review and to promote the percep-
tion of fair sentencing.” United States v. Scott, 555 F.3d
605, 608 (7th Cir. 2009) (quotations omitted). Portman
has not rebutted the presumption of reasonableness

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No. 09-1083 15
attached to his sentence by showing that the sentence
is unreasonable when considered against the § 3553(a)
factors.
III. CONCLUSION
Accordingly, we AFFIRM Portman’s sentence.
3-22-10

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