United States of America v. Jodi Filipiak

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4572
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J ODI F ILIPIAK ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-CR-192—Charles N. Clevert, Jr., Judge.
____________
A RGUED S EPTEMBER 12, 2006—D ECIDED O CTOBER 20, 2006
____________
Before R OVNER , W OOD , and E VANS , Circuit Judges.
E VANS , Circuit Judge. Jodi Filipiak stole over $2.5
million from her employer by diverting funds from its bank
account to her own use. When caught, she paid back the
documented losses and pleaded guilty to federal bank fraud
charges. In keeping with the government’s recommendation,
the district court sentenced her to 24 months—well below
the advisory guideline range of 33 to 41 months. Filipiak
appeals claiming that her sentence is unreasonable.
An information filed in July 2005 charged Filipiak with
defrauding a bank by writing an unauthorized check for
$289,041 on the account of her employer, Fiduciary Real
Estate Development, Inc. (FRED), depositing the check into

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2 No. 05-4572
her own account, and using the funds to purchase
real property for herself. Filipiak promptly pleaded guilty
to the information and stipulated in her plea agreement
that her conduct was part of an ongoing series of thefts: As
Director of Accounting and Administration for FRED from
1995 to 2003, Filipiak was authorized to make wire trans-
fers of FRED funds and write checks on FRED accounts.
Around 1997 she began diverting FRED funds by, among
other things, depositing checks payable to FRED into her
own accounts, writing FRED checks to herself, and transfer-
ring funds from FRED checking accounts into her own
personal accounts. The total amount diverted exceeded $2.5
million. Filipiak used the funds to, among other things, pay
her credit-card bills and taxes, give herself an unauthorized
bonus, purchase land, make investments, loan money to her
ex-husband, and treat a friend to a fishing trip.
At sentencing (which spanned two days) the district court
calculated a guidelines imprisonment range of 33 to 41
months based on a total offense level of 20 and a criminal
history category of I. All agree that the computation was
correct. As promised in the plea agreement, however, the
government recommended a below-range sentence of 24
months because Filipiak’s “pre-charging payment of
restitution to the victim” showed an “extraordinary accep-
tance of responsibility.” The government took this position
notwithstanding the fact that the president of FRED was
unsure whether the full scope of Filipiak’s fraud was
detected. The president maintained that “every time the
defendant was confronted, she would tell them there was
not anything else and they found more.” After acknowledg-
ing the advisory nature of the guidelines and considering
the sentencing factors in 18 U.S.C. § 3553(a), the district
court accepted the government’s recommendation and
sentenced Filipiak to 24 months plus three years of super-
vised release and a fine of $20,000.

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No. 05-4572 3
Filipiak now argues that the sentence she received is
unreasonable because “there are extenuating mitigating
circumstances that should have required the court to
impose a sentence that was less than twenty-four (24)
months.” She insists without elaboration that the court
did not fully consider her payment of restitution before
she was charged, or the fact that she does not have educa-
tional or vocational deficits that might be addressed in
prison, or her lack of a criminal record. Filipiak also
contends that the district judge did not consider her “pro-
social lifestyle” (whatever in the world that means) in
fashioning her sentence.
Filipiak misunderstands the nature of a district court’s
discretion after United States v. Booker, 543 U.S. 220
(2005). A sentencing court must now consider a defendant’s
arguments that factors enumerated in 18 U.S.C. § 3553(a)
warrant a sentence below the guidelines range, but it is not
compelled to accept those arguments. See United States v.
Williams, 436 F.3d 767, 769 (7th Cir. 2006); United States
v. Lopez, 430 F.3d 854, 857 (7th Cir. 2005). A sentence
within a properly calculated guidelines range is presumed
to be reasonable, see United States v. Paulus, 419 F.3d 693,
700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005), and we have said that “[i]t is hard
to conceive of below-range sentences that would be unrea-
sonably high,” United States v. George, 403 F.3d 470, 473
(7th Cir. 2005). Moreover, a defendant cannot complain on
appeal that her sentence should have been reduced based
upon § 3553(a) factors that were never brought to the
attention of the district court. See Mykytiuk, 415 F.3d at
608 (defendant has burden to rebut presumptively reason-
able guideline sentence by drawing district court’s attention
to 18 U.S.C. § 3553(a) factors); United States v.
Cunningham, 429 F.3d 673, 675 (7th Cir 2005). In this case
it is impossible to tell what Filipiak argued on the first day
of the sentencing hearing because a transcript from that

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4 No. 05-4572
day is not in the record. But we do have a transcript from
the second day, and there Filipiak offered no persuasive
reasons why a sentence of less than 24 months was war-
ranted.
In any event, the district judge (Hon. Charles N. Clevert,
Jr.) explicitly addressed the very points Filipiak says
were not adequately considered—her precharge payment of
restitution, her education and professional training, and her
lack of a criminal record. The judge acknowledged that
Filipiak “did return monies that were believed to have been
lost or stolen.” The judge further stated that Filipiak is a
bright woman who graduated at the top of her high school
class, showed remorse for her actions, and had no criminal
history. But the judge also wisely recognized that these and
several other factors were not wholly in Filipiak’s favor. As
to restitution, Filipiak still had a net worth of $1.4 million
at the time of sentencing, and the judge observed that she
may have been able to make restitution precisely because
she profited from investing the very funds she pilfered from
her employer. Moreover, the judge noted the belief of
FRED’s president that Filipiak was not completely truthful
about the total amount of money she stole and the fact that
she damaged the company’s reputation. Further, the judge
observed that Filipiak’s abuse of her employer’s trust was
not a one-shot deal as it extended over several years.
Filipiak’s unreasonableness argument is completely
without merit. But another point is worth making. As she
emphasizes in her summary of argument, Filipiak’s princi-
pal contention is that the sentencing court “did not give the
Defendant-Appellant enough of a downward departure [an
outdated term post-Booker] based upon the upfront pay-
ment of restitution.” The assumption she makes—an
assumption the government also promoted in the plea
agreement—is that her precharge payment of restitution
warranted any reduction below the guidelines range. That
assumption is, at best, questionable. Before Booker we held

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No. 05-4572 5
that voluntarily paying restitution before an adjudication of
guilt generally was not a valid basis for departing below the
guidelines range because the Sentencing Commission
already gave weight to efforts of that sort when it fashioned
a guideline reduction for acceptance of responsibility.
United States v. Bean, 18 F.3d 1367, 1369 (7th Cir. 1994);
see U.S.S.G. § 3E1.1 cmt. n.1(c) (identifying the “voluntary
payment of restitution prior to adjudication of guilt” as one
factor that might signal a defendant’s acceptance of respon-
sibility). After Booker, “departures” are “obsolete,” United
States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005), but
pre-Booker departure decisions still offer guidance. Other
courts allowed for departures based on the payment of
restitution only in extraordinary situations, and here there
was nothing extraordinary about Filipiak’s effort to reim-
burse FRED with readily available funds. Indeed, Filipiak
told the probation officer that most of what she repaid came
directly from the proceeds of her thefts. Cf. United States v.
Kim, 364 F.3d 1235, 1245 (11th Cir. 2004) (holding that
restitution was extraordinary where defendants used
life savings and undertook significant debt to return what
they took plus interest); United States v. Oligmueller, 198
F.3d 669, 672 (8th Cir. 1999) (holding that restitution could
be extraordinary where defendant made pre-indictment
restitution, worked sixteen-hour days to ensure assets sold
for the highest value, gave up his home and life insurance
policy to return money owed to bank). Under the circum-
stances here, the validity of an even greater reduction below
the advisory guidelines range for Ms. Filipiak would have
been on less than solid footing.
For these reasons, the judgment of the district court is
A FFIRMED .

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6 No. 05-4572
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-20-06

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