United States of America v. George E. Bay, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 20, 2005
Decided August 4, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-3137
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GEORGE E. BAY, JR.,
Defendant-Appellant.
Appeal from the United States
District Court for the
Northern District of Illinois,
Eastern Division
No. 03 CR 956-1
David H. Coar, Judge.
O R D E R
George E. Bay, Jr., pleaded guilty to one count of mail fraud in violation of 18
U.S.C. § 1341. Acting at a time when the Sentencing Guidelines were thought to be
mandatory, the district court sentenced Bay to 32 months’ imprisonment. In United
States v. Bay, No. 04-3137 (7th Cir., Sept. 14, 2005) (unpublished order), we ordered
a limited remand of Bay’s sentence in accordance with United States v. Booker, 125 S.
Ct. 738 (2005), and United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), so that the
district court could determine whether it believed that his sentence remains
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-3137 Page 2
appropriate now that Booker has relegated the Sentencing Guidelines to advisory
status. In all other respects, we affirmed the judgment of the district court.
The district court has replied that, now knowing that the Guidelines are not
mandatory, it would reimpose the same sentence. The court noted that “[i]f Defendant
has [] arguments based upon the factors set forth in 18 U.S.C. § 3553(a), he does not
adequately present them at this time.” Instead, Bay apparently renewed the same
argument that we rejected in our previous decision in this case: that the district court
erred in concluding both that Bay had obstructed justice by misstating his financial
assets and that Bay was not entitled to a downward adjustment for acceptance of
responsibility. Analyzing the § 3553(a) factors, the district court concluded that “[t]he
nature and characteristics of his offense, the need to afford adequate deterrence to
conduct such as engaging in mail fraud and then attempting to mislead the
Government with respect to asset values, the need to protect the public from further
crimes such as the scheme to defraud 43 separate companies, all support a finding that
the original sentence should stand.”
We invited both parties to file any arguments concerning the reasonableness of
Bay’s sentence. The government filed a statement urging us to find the sentence
reasonable and affirm. Bay also submitted a statement, but his memorandum
primarily reargues the merits of the obstruction of justice issue. The closest Bay comes
to addressing the reasonableness of his sentence is in his suggestion that “[i]f the
district court has questions about certain factors, Bay should be given every
opportunity to show that his sentencing range was unreasonable when weighed against
the section 3553 factors and that justice demands a lower sentence.” But this is
precisely the opportunity we gave Bay in the Paladino remand; he should have, but did
not, avail himself of it by raising arguments concerning the § 3553(a) factors to the
district court. He has therefore failed to show why his properly-calculated sentence,
which is presumed reasonable under United States v. Mykytiuk, 415 F.3d 606 (7th Cir.
2005), should not stand, and our own review shows no such reason.
We therefore AFFIRM the sentence imposed by the district court.

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