United States of America v. Richard A. Loken

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 18, 2009
Decided March 19, 2009
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐1544
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RICHARD A. LOKEN,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 99‐cr‐010‐bbc
Barbara B. Crabb,
Chief Judge.
O R D E R
In 1999 Richard Loken pleaded guilty to bank fraud, see 18 U.S.C. § 1344(2), and was
sentenced to 33 months’ imprisonment and five years’ supervised release, and ordered to
pay more than $1.4 million in restitution in monthly installments of $500. Loken failed to
make the full monthly payments, and the district court revoked his supervised release in
2004. It sentenced him to one day of imprisonment followed by four years’ supervised
release and added a condition of supervised release that Loken receive approval before
incurring any debt above $200. At another revocation hearing in 2007, Loken admitted
violating that condition when he failed to obtain approval from his probation officer to
secure financing to buy a new Chevrolet Trailblazer and a new Chevrolet Impala. The court
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1544 Page 2
revoked his supervised release, sentenced him to nine months in prison followed by four
more years of supervised release, and increased his monthly restitution payment to $1000.
Loken filed a notice of appeal, but his appointed lawyer concludes that any issue on appeal
would be frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967).
Loken has not responded to our invitation to comment on counsel’s submission, see CIR. R.
51(b), and so we confine our review to the potential issues identified in counsel’s facially
adequate brief, see United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel first considers whether Loken could challenge the revocation of his
supervised release. Loken’s violation is a Grade C violation, see U.S.S.G. § 7B1.1(a)(3),
which gives the district court discretion to revoke supervised release or to modify the
existing supervised release instead. See U.S.S.G. § 7B1.3(a)(2); United States v. Salinas, 365
F.3d 582, 585 n.1 (7th Cir. 2004). At the revocation hearing Loken had proposed that the
court add more time to his supervised release or increase the monthly restitution payments
rather than revoking supervised release. But the court justified revocation on grounds that
Loken’s purchase of two new cars was “outrageous behavior,” as if he were “thumbing [his]
nose at all of the people that lost so much money as a result of” his criminal behavior.
These comments reflect an acceptable exercise of the court’s discretion; any argument to the
contrary would be frivolous.
Counsel next considers whether Loken could challenge his sentence. We would
uphold his sentence unless it were plainly unreasonable. See United States v. Kizeart, 505
F.3d 672, 674 (7th Cir. 2007). The policy statements in the guidelines recommend an
imprisonment range of three to nine months for Loken’s violation, see U.S.S.G. § 7B1.4(a),
and the court imposed an imprisonment term of nine months. Among the factors listed in
18 U.S.C. § 3553(a), the court singled out the need to hold Loken accountable for his
violations, to reflect the seriousness of his conduct, and to promote respect for the law. See
18 U.S.C. § 3583(e); Salinas, 365 F.3d at 588‐89. Counsel correctly concludes that any
challenge to Loken’s sentence would be frivolous.
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.

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