No. 15-­--1278 UNITED STATES OF AMERICA v. Daniel Spitzer

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-­‐‑1278
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
DANIEL SPITZER,
Defendant-­‐‑Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 651 — James B. Zagel, Judge.
____________________
ARGUED FEBRUARY 8, 2016 — DECIDED FEBRUARY 10, 2016
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Before POSNER, EASTERBROOK, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Daniel Spitzer pleaded guilty
to ten counts of mail fraud, confessing liability for a scheme
that took in about $106 million—all of which Spitzer prom-­‐‑
ised to invest for his clients’ benefit—but returned only $72
million or so to investors. Less than $30 million ever was in-­‐‑
vested. The remainder was used, after the fashion of Ponzi

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schemes, to pay earlier investors, or was siphoned off by
Spitzer and others.
The presentence report calculated a Guideline range of
292 to 365 months’ imprisonment, which flowed from an of-­‐‑
fense level of 40 and a criminal history category I. The base
offense level was 7. See U.S.S.G. §2B1.1(a)(1). A loss of ap-­‐‑
proximately $34 million added 22 levels, and the existence of
more than 250 victims added a further six. The PSR pro-­‐‑
posed two levels for use of sophisticated means, two because
Spitzer personally took more than $1 million out of the kitty,
and another four because Spitzer claimed to have acted as an
investment adviser. Take three off for acceptance of respon-­‐‑
sibility, and the result is level 40.
At sentencing, Spitzer’s lawyer contested this calculation
by asking that the loss be reduced to account for the fact that
more than $70 million was returned to investors, some of
whom were made whole, and $30 million of the $106 million
was invested (at least for a time). But as $34 million repre-­‐‑
sents investors’ net loss, it is hard to see how any further re-­‐‑
duction could be taken. See United States v. Walsh, 723 F.3d
802, 807–09 (7th Cir. 2013). The loss for Guidelines purposes
might have been reduced if some of the $34 million had been
attributable to financial markets, rather than fraud, but
Spitzer did not attempt to show how investors would have
fared if the funds had been operated as he promised.
Some investors got out without injury, and redemption
requests were honored until near the end when the funds
ran out of money, but Spitzer conceded that he owes restitu-­‐‑
tion of some $34 million to 458 specific persons, which made
it hard to contest the enhancement for 250 or more victims.
He also conceded drawing more than $1 million for himself

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No. 15-­‐‑1278 3
and claiming to be an investment adviser, and the elaborate
details through which the scheme was operated attest to so-­‐‑
phisticated means. The district judge stated that he agreed
with the calculation in the PSR and sentenced Spitzer to 300
months’ imprisonment.
In this appeal, Spitzer does not contest the calculation of
the Guideline range. Nor does he contend that a 300-­‐‑month
sentence is unreasonable, given that range. Spitzer also does
not contend that, in selecting the 300-­‐‑month sentence, the
judge failed to address his principal arguments for a shorter
term or overlooked any of the factors in 18 U.S.C. §3553(a).
Instead, the sole appellate argument is that the judge did not
explain in more detail why he agreed with the PSR’s conclu-­‐‑
sion that offense level 40 applies. Yet as Spitzer does not con-­‐‑
tend that the PSR is wrong in any of the steps that gets the
offense level to 40, it is hard to see why an abbreviated judi-­‐‑
cial explanation could be error. A judge who agrees with the
PSR’s calculations can say so, without the need to repeat or
re-­‐‑rationalize them; the adoption of the PSR means that it
speaks for the court as well as the staff. See, e.g., United
States v. O’Doherty, 643 F.3d 209, 219 (7th Cir. 2011).
The task of determining the right sentence, given the
statutory factors, demands more judgment than the task of
calculating the offense level, which in a case such as this is
close to mechanical. That is why we require the judge to
evaluate, on the record, the defendant’s substantial argu-­‐‑
ments for lenience. See, e.g., United States v. Cunningham, 429
F.3d 673 (7th Cir. 2005); United States v. Ramirez-­‐‑Fuentes, 703
F.3d 1038, 1047–49 (7th Cir. 2013). By contrast, a simple
statement of agreement with the PSR shows why the judge

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approves the offense level that has been explained in the
PSR: the judge thinks that the staff got it right.
And what would be the point of a remand? Since Spitzer
does not now contend that his offense level is less than 40,
all a remand could do would be to produce empty words en
route to an inevitable outcome.
AFFIRMED

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