United States of America v. Dennis O. Said

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2009
Decided June 23, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐3720
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DENNIS O. SAID,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 08‐CR‐24‐C‐01
Barbara B. Crabb,
Chief Judge.
O R D E R
In 2003, officials from the Office of the Comptroller of the Currency performed a
routine audit of the First National Bank of Blanchardville, Wisconsin, and determined that
the bank was insolvent. They closed the bank and the FBI started an investigation, which
led to the bank’s president, Mark Hardyman. Hardyman had approved numerous
fraudulent loans and had kept those loans hidden from the bank’s board of directors and
from bank regulators. Dennis Said was the recipient of about $6 million of those fraudulent
loans and, after the investigation, he was charged in a 39‐count indictment. Said ultimately
pleaded guilty to one count of bank fraud, 18 U.S.C. § 1344, and one count of money
laundering, id. § 1957, and received a sentence of 100 months. (Hardyman, who did not
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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benefit from the scheme except through bonus pay, also pleaded guilty and got 108
months.) Said filed a notice of appeal, but his appointed lawyer moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he cannot discern any nonfrivolous ground
for appeal. Said did not accept our invitation to respond to his lawyer’s submission. See
CIR. R. 51(b). Limiting our review to the potential issues identified in counselʹs supporting
brief, see United States v. Cano‐Rodriquez, 552 F.3d 637, 638 (7th Cir. 2009), we grant counselʹs
motion and dismiss the appeal.
In his Anders submission, counsel addresses only potential challenges to Said’s
prison term. First, he considers challenging the district court’s calculation of Said’s
guidelines range. Even after United States v. Booker, 543 U.S. 220 (2005), we will reverse if
the district court made a nonharmless error in calculating the guidelines range. See United
States v. Abbas, 560 F.3d 660, 666‐67 (7th Cir. 2009). The court began its calculation by
grouping the two offenses of conviction and using the offense level for the money
laundering count because it is higher. See U.S.S.G. §§ 3D1.2(d), 3D1.3(b). That is, the court
began with a base offense level of 7, see id. §§ 2S1.1(a)(1), 2B1.1(a)(1), to which it added 18
levels for the $3.7 million loss attributable to Said, see id. § 2B1.1(b)(1)(J). Next, the court
added 4 levels because the offense “substantially jeopardized the safety and soundness” of
the bank, see id. § 2B1.1(b)(14)(B)(i), as well as another level because Said engaged in money
laundering, see id. § 2S1.1(b)(2)(A). Finally, the court subtracted 3 levels for acceptance of
responsibility, see id. § 3E1.1, for an adjusted offense level of 27. With a criminal history
score of IV, Saidʹs guidelines range was 100 to 125 months. See id. ch. 5, pt. A.
Said’s only objection to the calculation of his guidelines range was that he should
not have gotten the four‐level increase for substantially jeopardizing the safety and
soundness of the bank. See id. § 2B1.1(b)(14)(B)(i). (This provision was numbered
2B1.1(b)(13)(B)(i) at the time, but its substance has not changed.) The government
presented the testimony of a federal bank examiner involved in the audit who explained
that Said had been allowed to borrow more than 12 times the amount that a single
customer may legally borrow and that Said’s defaulted loans accounted for 15% of the bad
assets on the bank’s books. In the bank examiner’s opinion, Said had substantially
jeopardized the safety and soundness of the bank. Said argued that he should not get the
four‐level increase because the safety and soundness of the bank would have been in
jeopardy even if he had not been involved in the scheme and because he could not have
done anything without the help of Hardyman, the bank’s president. The court sided with
the government. We review the application of the guidelines de novo, see Abbas, 560 F.3d at
662, but as counsel explains, there was no error. That others also contributed to the bank’s
insolvency is beside the point; the bank examiner’s testimony provides ample support for
the district court’s ruling. See United States v. Frith, 461 F.3d 914, 918 (7th Cir. 2006); United

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No. 08‐3720 Page 3
States v. Young, 413 F.3d 727, 732‐33 (8th Cir. 2005). Thus, a challenge to the court’s
calculation of the range would be frivolous.
Next, counsel considers arguing that the district court did not properly consider the
factors listed in 18 U.S.C. § 3553(a), and as a result imposed an unreasonable sentence. At
sentencing Said asked for a below‐guidelines sentence based on his age and serious health
problems, but the court instead imposed the lowest possible within‐guidelines sentence,
100 months. The court explained that, in light of Said’s history and characteristics, that
sentence was “sufficient and no greater than necessary” to hold him accountable, protect
the community, and achieve parity with the sentences imposed on the other participants in
the scheme. That was a sufficient evaluation of the § 3553(a) factors. See United States v.
Woods, 556 F.3d 616, 623 (7th Cir. 2009). Moreover, because Said’s prison term is within the
guidelines range, we would afford it a presumption of reasonableness. See United States v.
Sawyer, 558 F.3d 705, 714‐15 (7th Cir. 2009). Thus, any argument about the reasonableness
of Said’s sentence would be frivolous.
Accordingly, counselʹs motion to withdraw is GRANTED, and the appeal is
DISMISSED.

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