United States of America v. Stephanie L. Donelli

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2548
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEPHANIE L. DONELLI,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cr-139-01 — Sarah Evans Barker, Judge.
ARGUED MARCH 5, 2014 — DECIDED APRIL 7, 2014
Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Defendant Stephanie Donelli
appeals the 60-month prison sentence she received after
pleading guilty to wire fraud and tax evasion. She argues that
the district court made a procedural error by failing to address
her diagnosis of a mental illness, bipolar II disorder, which
Donelli now calls a “principal argument in mitigation.”

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Since our decision in United States v. Cunningham, 429 F.3d
673 (7th Cir. 2005), we have required sentencing judges to
address a defendant’s principal arguments in mitigation when
those arguments have recognized legal merit. See, e.g., United
States v. Vidal, 705 F.3d 742, 744 (7th Cir. 2013); United States v.
Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012); United States v.
Gary, 613 F.3d 706, 709 (7th Cir. 2010). Our cases do not show
clearly, however, what is necessary for a defendant’s mitiga-
tion argument to trigger the district court’s duty to explain
under Cunningham. Donelli asserts that briefly mentioning her
bipolar disorder at sentencing was enough to require a
response from the district court.
We disagree, and we affirm Donelli’s sentence for two
independent reasons. First, she failed to present the fact of her
diagnosis as a principal argument in mitigation relevant to her
sentence. Second, she waived her claim of a Cunningham
procedural error by telling the district court at the close of her
sentencing hearing that she had no objection to her sentence
apart from the fact that the sentence was above the guideline
range.
I. Donelli’s Crimes
In 2007 Donelli and her family began renting a home from
an elderly couple, Ruth and Eugene Vigus. For the next four
years Donelli led the Viguses to believe that her minor daugh-
ter would receive a $750,000 settlement from an oil company
after suing for injuries sustained in a car accident with a drunk
employee of the company. Apart from the fact that Donelli had
a young daughter, the story was entirely false.

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No. 13-2548 3
Using this ruse, Donelli persuaded the Viguses to “lend”
her money more than 500 times to get her family through
tough straits until the long-awaited settlement arrived. Each
time Donelli signed a promissory note, even committing to
paying interest. These phony loans totaled almost $443,000,
much of it spent on lavish vacations with her family. None of
the money was reported to the IRS as income. The Viguses
never saw a dime of their money again. As a result of this
fraud, Donelli was indicted on five counts of tax evasion, 26
U.S.C. § 7201, and one count of wire fraud, 18 U.S.C. § 1343.
II. The Presentence Report
Donelli agreed to plead guilty to all charges under a plea
agreement. The United States Probation Office prepared a
presentence report. The report said that Donelli had sought
treatment for drug abuse in May 2012 from Dr. Michael J. Deal,
an Indianapolis psychiatrist. The probation officer had re-
viewed records from Dr. Deal, who prescribed medication for
opioid addiction and also diagnosed Donelli with “Type II
Bipolar Disorder.” Beyond the report of the diagnosis of
bipolar II disorder, though, the report included no information
about this mental illness or its impact on Donelli. The report
did not conclude or even suggest that the illness was a contrib-
uting factor in Donelli’s crimes, past or present.
The presentence report calculated a total offense level of 20
and placed Donelli within criminal history category III. The
district court ultimately adopted the entire presentence report,
including the uncontested guideline calculations. Donelli’s
guideline imprisonment range was 41 to 51 months.

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III. The Sentencing Hearing
Donelli did not submit a sentencing memorandum, nor did
she present any evidence during the sentencing proceeding
except for letters of support from her husband and children.
She exercised her right to speak on her own behalf at sentenc-
ing. Donelli attributed her fraud against the Viguses to her
addiction to prescription opioids. The district judge acknowl-
edged the reference in the presentence report to Donelli’s
diagnosis of bipolar II disorder, which prompted the judge to
ask Donelli:
[D]o you still sense that you need some mental
health counseling? I mean, was it just a problem of
getting off the drugs or is there something in there,
some mystery, that needs to be unlocked with
respect to why you became addicted and why you
resorted to these means?
Donelli replied: “No, it’s just—I lost my dad at age 12 … .
Then I lost my mother in 2006. And that’s when it became
really bad.”
Donelli’s lawyer also noted the presentence report’s
reference to her bipolar II diagnosis, arguing that Donelli’s
previously undiscovered mental health problems, coupled
with her “reasonably serious narcotic addiction,” offered “not
an excuse but an explanation” for her behavior. The lawyer
asked the district court to take the bipolar II diagnosis into
account as one of Donelli’s characteristics. Her lawyer also
argued that because Donelli’s offense level was adjusted both
for the amount of money she took from the Viguses and the

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No. 13-2548 5
vulnerability of her victims, “the guidelines encompass most
of what needs to be taken into account.”
The district court imposed a sentence of 60 months in
prison, nine months above the high end of the guideline range.
The court explained that the guidelines did not “capture the
extent of the harm here.” While recognizing that the guidelines
accounted for the amount of loss and vulnerability of the
victims, the judge explained that “what is not reflected in the
guidelines is how long this went on and how many deceitful
acts were perpetrated by you driven by your addiction.” The
judge also remarked that Donelli had been given opportunities
to recognize the harm she was causing, but at every turn she
had failed to stop her destructive behavior. The judge did not
mention the bipolar diagnosis when explaining the sentence.
The judge closed the sentencing hearing by asking counsel
whether they had any objection to the sentence or required
“any further elaboration” of the judge’s reasons. Donelli’s
lawyer objected to the above-guideline sentence and repeated
the argument that the guidelines already accounted for the
nature of the harm. Her lawyer offered no other objection to
the sentence, the manner in which it was imposed, or the
sufficiency of the court’s explanation of its reasons.
IV. Analysis
On appeal, Donelli argues that the district judge failed to
address a principal argument in mitigation. According to her
appellate counsel, the unaddressed argument made by the
lawyer in the district court was that Donelli had a serious
mental health disability. Donelli asserts that the court’s
procedural error also resulted in a prison term that is substan-

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tively unreasonable. Donelli does not otherwise challenge the
above-guideline sentence as unreasonable.
We conclude first that the lawyer’s assertion at sentencing
that Donelli’s bipolar II disorder was “not an excuse but an
explanation” for her crimes was not a developed “principal
argument” that the district court was required to address.
Second, even if the court had a duty to respond, Donelli’s
failure to object to the omission when the court asked about the
sufficiency of the explanation at the close of the sentencing
hearing forecloses her argument on appeal.
A. The Cunningham Duty
When pronouncing sentence, the district court generally
must comment on what we have called a defendant’s “princi-
pal arguments in mitigation.” See, e.g., United States v. Garcia-
Segura, 717 F.3d 566, 568 (7th Cir. 2013); United States v.
Schmitz, 717 F.3d 536, 541 (7th Cir. 2013). Although sentencing
is an exercise of the district court’s discretion, a reviewing
court must be able to satisfy itself that the district court
actually exercised its discretion. Cunningham, 429 F.3d at 679.
Cunningham imposes a procedural requirement. It does not
constrain the district court’s discretion in deciding upon a
reasonable sentence under the broad guidance of 18 U.S.C.
§ 3553(a). This procedural requirement is designed to ensure
that the judge has in fact considered the principal issues
affecting the sentencing decision. The requirement is based on
the view that a “judge who fails to mention a ground of
recognized legal merit (provided it has a factual basis) is likely
to have committed an error or oversight.” Cunningham,
429 F.3d at 679.

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No. 13-2548 7
The district court did not fail to comply with its Cunning-
ham duty. Donelli did not present her mental health diagnosis
as part of an argument that triggered the court’s duty to
respond. Where the effect is not otherwise obvious, a defen-
dant relying on a personal characteristic as a mitigating factor
must offer a cogent argument as to why that characteristic
should be deemed a mitigating rather than aggravating factor.
This principle applies equally to mental illness. See United
States v. Cheek, 740 F.3d 440, 455 (7th Cir. 2014) (age); United
States v. Annoreno, 713 F.3d 352, 358 (7th Cir. 2013) (“mental
characteristics” including bipolar disorder and depression);
United States v. Durham, 645 F.3d 883, 898 (7th Cir. 2011)
(“multiple cognitive and intellectual deficits”); United States v.
Portman, 599 F.3d 633, 637–38 (7th Cir. 2010) (age); United
States v. Beier, 490 F.3d 572, 573–74 (7th Cir. 2007) (“cluster of
personal experiences and characteristics,” including, depres-
sion, below-average IQ, and sexual abuse in childhood).
As we noted in United States v. Garthus, 652 F.3d 715, 717–18
(7th Cir. 2011), a sentencing judge might reasonably conclude
that a defendant’s mental illness is a reason to impose a longer
sentence rather than a shorter one. For instance, if a defen-
dant’s mental illness caused her to commit a crime, a judge
could reasonably conclude that the mental illness weighed in
favor of a longer sentence to incapacitate the defendant and
protect the public from future crimes. There are other ways to
view mental illness when imposing sentence, but a defendant
cannot simply disclose the existence of a mental illness and
then on appeal criticize the sentencing court for not speculating
about whether and why that illness merited a lighter sentence.

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8 No. 13-2548
In effect, that is all Donelli did. She submitted no sentencing
memorandum arguing for leniency on the basis of the bipolar
II diagnosis. At the sentencing hearing, she presented the
diagnosis as an “explanation” for her behavior but not an
“excuse,” and she asked the court to “take [it] into account.”
She did not present an argument about why this mental illness
would be reason to give her a lighter sentence, which explains
why Donelli now describes the “ignored” argument in mitiga-
tion as “Ms. Donelli has a serious mental health disability.”
“The defendant has a mental illness” is an observation of
fact, not an argument in mitigation. The few statements about
bipolar II disorder made by Donelli’s lawyer at sentencing did
not amount to an argument in mitigation that the district court
had a duty to discuss. See, e.g., Cheek, 740 F.3d at 455 (“we will
not fault the district court for failing to mention explicitly
Cheek’s age at sentencing” when “he did not develop any
argument for leniency from that fact”). There was no proce-
dural error under Cunningham.
B. Waiver
Even if the district court had made a Cunningham error,
Donelli waived any such claim for appeal. After pronouncing
sentence and stating her reasons, the district judge asked
Donelli’s lawyer and the prosecutor if they required “any
further elaboration” of the reasons for the sentence. Both said
no.
In Garcia-Segura we encouraged district courts to ask just
that question. See 717 F.3d at 569. From a district judge’s
perspective, our cases following Cunningham have not pro-
vided “a bright line that lets district judges know when they

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No. 13-2548 9
have provided enough of an explanation,” and since 2005 we
have decided nearly 200 cases presenting questions under the
Cunningham duty to explain the reasons for rejecting principal
arguments in mitigation. See United States v. Castaldi, 743 F.3d
589, 595 (7th Cir. 2014).
The Garcia-Segura approach makes it possible to correct a
genuine Cunningham procedural error on the spot, at the end
of the sentencing hearing in the district court. That is prefera-
ble to correction after appellate review, a year or more of delay,
and a new hearing after remand. We said in Garcia-Segura that
if the judge invites objections and the defendant makes no
request for a Cunningham explanation, the defendant could
waive any argument that the sentencing judge failed to address
sufficiently a principal argument in mitigation. 717 F.3d at 569.
If defense counsel expresses satisfaction with the judge’s
explanation, we said, “a later challenge for failure to address
a principal mitigation argument under the reasoning of
Cunningham would be considered waived.” Id.
That’s what happened here: The district judge asked
Donelli whether she had any disagreement with the sentence
or required further elaboration of the court’s reasons. Donelli
did not point to any mitigating argument the judge had failed
to address. She is therefore foreclosed from arguing on appeal
that a principal argument remained unaddressed.
During oral argument we raised the possibility that Don-
elli’s argument had been waived. Her lawyer suggested that
her general objection to her above-guideline sentence was
enough to preserve the procedural objection under
Cunningham. We disagree. Donelli’s objection was to the

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substantive reasonableness of the sentence, not to the proce-
dure the district court used, let alone the sufficiency of the
explanation. Her objection was insufficient to preserve her
contention on appeal that the court disregarded its Cunningham
duty. Under the approach we set forth in Garcia-Segura, Donelli
waived any argument that the district court failed to consider
any principal argument in mitigation.
Donelli’s sentence is AFFIRMED.

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