United States of America v. Kenneth M. Loving

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 12, 2014
Decided January 6, 2015
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐2562
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENNETH M. LOVING,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 13‐CR‐30249‐MJR
Michael J. Reagan,
Chief Judge.
O R D E R
Kenneth Loving falsely claimed to be unemployed and, over the course of
16 months, received roughly $25,000 in unemployment insurance benefits from the
Illinois Department of Employment Security. Federal prosecutors charged him with one
count each of mail fraud, 18 U.S.C. § 1341, and theft of funds belonging to the
United States, id. § 641. Loving pleaded guilty to the § 641 charge. As provided in his
written plea agreement, he waived the right to appeal his conviction and sentence except
on narrow grounds not relevant here. The district court calculated a guidelines
imprisonment range of 10 to 16 months and sentenced Loving to 10 months.
Loving filed a notice of appeal, but his appointed attorney, who also represented
him in the district court, asserts that the appeal is frivolous and moves to withdraw
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 14‐2562 Page 2
under Anders v. California, 386 U.S. 738 (1967). We invited Loving to comment on
counsel’s motion, but he hasn’t done so. See C IR . R. 51(b). Counsel’s submission explains
the nature of the case and adequately addresses the points that an appeal of this kind
might be expected to involve. We thus limit our review to the subjects that the lawyer
discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
In his Anders brief, counsel represents that Loving has no interest in challenging
his guilty plea, and thus the lawyer refrains from discussing the adequacy of the plea
colloquy, see FED. R. C RIM. P. 11(b), or the voluntariness of the plea. We accept counsel’s
representation, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States
v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002), despite the unusual lack of detail in the
government’s factual basis for the § 641 count.
That charge alleges that Loving stole federal funds, not from a federal agency, but
from the Illinois Department of Employment Security, which runs the Illinois
Unemployment Insurance Program in coordination with the federal government. An
essential element of § 641 is that the stolen property belong to the United States. See 18
U.S.C. § 641; United States v. Garcia‐Pastrana, 584 F.3d 351, 369–70 (1st Cir. 2009); United
States v. Barnes, 761 F.2d 1026, 1033 (5th Cir. 1985). Most funds disbursed to claimants
through the unemployment insurance program come from employers, not federal
taxpayers. See 820 ILCS 405/1500, 405/2100(A); Paschal v. Jackson, 936 F.2d 940, 942
(7th Cir. 1991). Although the federal government does help defray the program’s
administrative costs, see 42 U.S.C. § 1101; 820 ILCS 405/2100, 405/2103, funds contributed
to state or local agencies retain their character as federal property under § 641 only if the
federal government continues to exercise sufficient supervision and control over those
funds. See United States v. Wheadon, 794 F.2d 1277, 1283–85 (7th Cir. 1986); United States v.
Mitchell, 625 F.2d 158, 161 (7th Cir. 1980); United States v. Sussman, 709 F.3d 155, 167 (3d
Cir. 2013); Garcia‐Pastrana, 584 F.3d at 369. It is debatable whether that qualification can
be met for purposes of § 641 if federal money is used indirectly in administering a state
program. Compare United States v. Holmes, 111 F.3d 463, 464–66 (6th Cir. 1997)
(concluding that claimant who lies to obtain unemployment benefits from state agency
that receives federal money for administrative costs cannot be prosecuted under 18
U.S.C. § 1001 unless benefits themselves are traceable to federal funds), and United States
v. Facchini, 874 F.2d 638 (9th Cir. 1989) (en banc) (same), with United States v. Herring, 916
F.2d 1543, 1546–47 (11th Cir. 1990) (rejecting Facchini and concluding that lying to state
unemployment insurance agency violates § 1001 even if federal contributions to state
agency are used solely for administrative costs). Even so, the federal government also

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No. 14‐2562 Page 3
kicks in money to supplement employer contributions during times of high
unemployment. See 42 U.S.C. § 1321; 820 ILCS 405/2100(C). Additionally, the federal
government funds a portion of extended benefits when Congress appropriates money to
augment regular benefits that end after 26 weeks. See 26 U.S.C. § 3304(a)(11);
Federal‐State Extended Unemployment Compensation Act of 1970, Pub. L. No. 91‐373,
84 Stat. 695, § 204(a)(1) (reprinted in statutory and historical notes to § 3304); American
Recovery and Reinvestment Act of 2009, Pub. L. No. 111‐5, 123 Stat. 115, § 2005(a).
The record before us does not illuminate the government’s theory that Loving
stole from the United States by fraudulently obtaining unemployment insurance benefits
from the Illinois Department of Employment Security. Nonetheless, a guilty plea admits
all essential elements of the charged crime. See United States v. Kilcrease, 665 F.3d 924, 929
(7th Cir. 2012); United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). Loving
acknowledged in the plea agreement and again during the plea colloquy that federal
ownership is an element of § 641, and with that understanding he still signed a
“Stipulation of Facts” agreeing that the money he received “belonged to the United
States of America and was administered by the Illinois Department of Employment
Security.” That factual assertion, although conclusory, is at least plausible; Loving could
have received federal money because his thefts occurred during periods of “high
unemployment,” see U.S. D EP’ T OF LABOR , EMP’ T & T RAINING A DMIN., Emergency
Unemployment Compensation 2008 (EUC08) and Federal‐State Extended Benefit (EB) Summary
data for State Programs, http://www.workforcesecurity.doleta.gov/unemploy/euc.asp (last
visited Dec. 29, 2014) (follow “Data from July 2008 – Present, spreadsheet format”
hyperlink under EB Monthly Program Activity) (showing claims in Illinois for extended
benefits, which are available only during periods of high unemployment), or if he was
receiving extended benefits. So Loving’s situation is unlike cases where a defendant’s
factual admissions made in the course of pleading guilty do not, as a matter of law,
constitute the charged crime. See, e.g., Stanback v. United States, 113 F.3d 651, 653–54, 656–
57, 659 (7th Cir. 1997) (vacating guilty plea to “using” and “carrying” firearm in
violation of 18 U.S.C. § 924(c), since parties and district court all had thought incorrectly
that defendant’s constructive possession of gun found on coffee table where he was
packaging drugs constituted “use” or “carrying” of weapon); United States v. Abdul, 75
F.3d 327, 329–30 (7th Cir. 1996) (vacating guilty plea to “using” firearm in violation of
§ 924(c) because record established only that gun was found in defendant’s bedroom
during execution of search warrant). Under the circumstances, then, we do not have
reason to look beyond counsel’s assurance that he discussed with Loving the issues
relevant to the § 641 charge.

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No. 14‐2562 Page 4
It follows, says counsel, that an appeal would be frivolous given Loving’s broad
appeal waiver. We agree with that assessment. An appeal waiver stands or falls with the
guilty plea, see United States v. Zitt, 714 F.3d 511, 515 (7th Cir. 2013); United States v.
Sakellarion, 649 F.3d 634, 639 (7th Cir. 2011), and since Loving does not seek to have his
guilty plea vacated, we must enforce his waiver.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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