United States of America v. Joseph Furando

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued, July 7, 2016
Decided July 25, 2016
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 16-1157
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH FURANDO,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:13-cr-00189-SEB-TAB-4
Sarah Evans Barker,
Judge.
O R D E R
This appeal is frivolous. Joseph Furando pleaded guilty to conspiracy, wire fraud,
lying to federal investigators, and money laundering. At sentencing, he asked the district
court to give him credit for acceptance of responsibility even though he had committed a
number of crimes and threatened to kill prosecution witnesses after being indicted. The
district court found that Furando had not accepted responsibility, and he challenges only
that decision. We affirm Furando’s sentence.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 16-1157 Page 2
From 2009 until 2012, two companies owned and operated by Furando bought
more than 35 million gallons of inexpensive biodiesel, falsified documents to make the
fuel appear eligible for tax credits through an EPA program, and resold the fuel to a
coconspirator, E-Biofuels, LLC. E-Biofuels then marked up the price as if the fuel was
eligible for the tax credits and sold it to other retailers, generating more than $55 million
in profit. A grand jury charged Furando, his companies, and others with conspiracy, 18
U.S.C. § 371; wire fraud, 18 U.S.C. § 1343; false statements, 18 U.S.C. § 1001; and money
laundering, 18 U.S.C. § 1957. Furando pleaded guilty to all 27 counts in which he was
named.
At sentencing, witnesses testified to multiple instances of criminal conduct by
Furando between the indictment and sentencing. One of Furando’s coconspirators
testified that he had threatened to make her “disappear” and hurt her family if she
turned on him. The witness, who had been chief operating officer of Furando’s biofuel
companies, told EPA agents the truth about the scheme and her involvement. After he
was indicted, Furando learned what she had told the agents and demanded that she
retract her confession. When Furando learned that she instead had contacted the
prosecutor saying that she had more information to share, Furando again told her to
recant and offered to pay her attorney’s fees if she wrote a retraction, which she did.
Another witness and former employee of Furando’s testified that, while on
pretrial release, he had physically and sexually assaulted her on several occasions, told
her to lie at a court hearing about a physical altercation between Furando and the former
COO, and forced her to help him frame the former COO for prostitution so that he could
discredit her as a witness.
Even after Furando’s bond was revoked and he was taken into custody, he
continued planning crimes and attempting to silence witnesses against him. His cellmate
testified that Furando had said he wanted to “make a couple people in his case
disappear,” provided personal details about the two female employees, and suggested
poisoning them with a vial of liquid nicotine stored in his garage. Furando also asked his
cellmate to distribute LSD for him and deposit the profits into his jail commissary
account.
The probation officer calculated a total offense level of 38. He recommended
adding 2 levels for obstruction of justice, see U.S.S.G. § 3C1.1, and did not recommend
any deduction for acceptance of responsibility, see id. § 3E1.1. Furando objected to not
receiving a reduction for acceptance of responsibility and argued at sentencing that he

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No. 16-1157 Page 3
should receive at least a 2-level reduction since his guilty pleas saved government
resources and encouraged his codefendants to enter guilty pleas. Furando
acknowledged that an upward adjustment for obstruction of justice generally is
inconsistent with acceptance of responsibility, see U.S.S.G. § 3E1.1 n.4, but argued that, in
light of that increase, refusing to give him credit for acceptance of responsibility would
be “punishing him twice” for the obstructive conduct. The government countered that
pleading guilty was “not enough” given Furando’s pretrial misconduct.
The district court did not reduce Furando’s offense level, reasoning that pleading
guilty wasn’t sufficient by itself to demonstrate acceptance of responsibility. The court
rejected giving “some sort of reward” for Furando’s guilty pleas, calling them “almost
another form of fraud” given “all this other stuff going on.” The court calculated an
imprisonment range of 235 to 293 months and imposed a 240-month sentence.
On appeal, Furando challenges only the district court’s decision not to reduce his
offense level for acceptance of responsibility. He urges us to conclude that the reduction
should have been granted because (1) his guilty pleas saved judicial resources, (2) he did
not wait until the “last minute” to plead guilty, (3) he did not contest the loss calculation
or other collateral issues, (4) he twice offered to cooperate with the government, (5) he
acknowledged his criminal actions at the sentencing hearing, (6) his misconduct while
on pretrial release was (by his account) unrelated to the pending criminal case, and (7) he
acknowledges a need for psychological counseling.
Furando does not flesh out his argument much beyond providing this list. But it
doesn’t matter—the district court did not err in declining to reduce his offense level for
accepting responsibility. A defendant who pleads guilty is not entitled to an adjustment
for accepting responsibility as a matter of right, U.S.S.G. § 3E1.1 n.3, and “a defendant
who has obstructed justice is presumed not to have accepted responsibility,” United
States v. Buckley, 192 F.3d 708, 711 (7th Cir. 1999) (citing U.S.S.G. § 3E1.1 n.4);
see also United States v. Bennett, 708 F.3d 879, 893 (7th Cir. 2013). That presumption can be
rebutted in “extraordinary circumstances,” but we have concluded that simply pleading
guilty and refraining from further obstruction of justice is not sufficient. See Buckley, 192
F.3d at 711 (“The fact that a defendant having done everything he could to obstruct
justice runs out of tricks, throws in the towel, and pleads guilty does not make him a
prime candidate for rehabilitation.”). Rather, a defendant must show either that the
obstruction was trivial (causing no extra expense to the government) or that he made up
for his obstruction by taking more than the routine steps that normally earn the discount.
United States v. Hacha, 727 F.3d 815, 818 (7th Cir. 2013).

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Furando did not show that his acceptance was exceptional. Furando’s guilty pleas
do not demonstrate anything more than the “routine steps” that typically warrant an
acceptance-of-responsibility discount. See Bennett, 708 F.3d at 893 (upholding denial of
§ 3E1.1 reduction to defendant who had jumped bail and then dealt drugs for next four
years before pleading guilty). His other pretrial conduct far from “made up” for his
obstruction of justice: He continued committing violent physical assaults while on
pretrial release and, while detained, plotted to kill federal witnesses and sell drugs.
AFFIRMED.

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