United States of America v. Elizabeth Robertson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 28, 2014∗
Decided August 5, 2014
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-3816
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIZABETH ROBERTSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 09 CR 67-2
Joan Humphrey Lefkow,
Judge.
O R D E R
After carrying out a mortgage fraud scheme with her husband, appellant
Elizabeth Robertson pled guilty to wire fraud pursuant to a written agreement. See 18
∗ After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record to
the panel that considered the appellant’s previous appeals. See Fed. R. App. P. 34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13-3816 Page 2
U.S.C. § 1343. In the agreement, Robertson acknowledged that the scheme caused the
victim-lenders to lose approximately $742,000 and that she would be ordered to make
full restitution under the Mandatory Victims Restitution Act. See 18 U.S.C. § 3663A. She
was sentenced in 2011 to 41 months of imprisonment with two years of supervised
release and ordered to pay $742,832 in restitution.
Robertson and her husband appealed. We vacated their sentences and remanded
for further consideration of unusual evidence of self-motivated rehabilitation during the
twelve years between commission of the crime and sentencing. United States v. Robertson,
662 F.3d 871, 879–80 (7th Cir. 2011). On remand in 2012, Mrs. Robertson received a
shorter prison sentence of 30 months with the same supervised release and restitution.
Mrs. Robertson and her husband appealed again. She argued—as she had
unsuccessfully in her first appeal—that she should have been sentenced using the 1998
Sentencing Guidelines (from the time of the crime) rather than the 2010 Guidelines (from
the time of her sentencing). The 1998 Guidelines produce a lower advisory guideline
sentencing range. While the second appeal was pending, the Supreme Court overruled
this circuit’s prior case law (which the district court had followed) and held that using
post-offense guidelines to establish a higher guideline sentencing range than would
have applied under the guidelines in effect at the time of the offense violates the Ex Post
Facto Clause of the Constitution. Peugh v. United States, 133 S. Ct. 2072 (2013), overruling
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006). We therefore vacated both
Robertsons’ sentences again. United States v. Robertson, Nos. 12-1381 & 12-1383, ECF No.
43 (7th Cir. Nov. 25, 2013). On remand, the district court resentenced Mrs. Robertson to
time served and no supervised release, but it did not modify the restitution order.
Mrs. Robertson has appealed a third time. She now challenges the restitution
order, arguing that § 3663A violates the Sixth Amendment (or, if viewed as a civil
penalty, the Seventh) by depriving the convicted defendant of a jury’s determination of
restitution. But she did not contest restitution in her first sentencing appeal when the
issue was ripe. “[A]ny issue that could have been but was not raised on appeal is
waived.” United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002); see also, e.g., United
States v. Locke, No. 11-3743, 2014 WL 3563360, at *4, ___ F.3d ___ , ___ (7th Cir. July 21,
2014). The issue not raised on appeal is waived, not just forfeited, because the failure to
raise an issue places it outside the scope of any remand. United States v. Barnes, 660 F.3d
1000, 1006 (7th Cir. 2011); Husband, 312 F.3d at 250–51.
Mrs. Robertson counters that her argument could not have been waived because
she claims an as-yet-unrecognized right to have a jury determine the amount of

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No. 13-3816 Page 3
restitution. She argues that she could not have waived a right that did not and does not
yet exist. This circular logic does not save her appeal. The critical Supreme Court
decisions underlying her argument had been decided before either of the previous
sentencing appeals. See United States v. Booker, 543 U.S. 220 (2005); Apprendi v. New Jersey,
530 U.S. 466 (2000). If Mrs. Robertson had an objection to the restitution order, the time
to make it was as part of her first appeal.
Since Mrs. Robertson’s only argument in this appeal was waived three years ago,
the judgment is AFFIRMED.

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