United States of America v. Kenneth W. Lewis

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 14-2442 & 14-2597
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH W. LEWIS,
Defendant-Appellant.
Appeals from the United States District Court for the
Central District of Illinois.
No. 1:12-cr-10082-JES-JEH — James E. Shadid, Chief Judge.
ARGUED APRIL 11, 2016 — DECIDED APRIL 20, 2016
Before BAUER and WILLIAMS, Circuit Judges, and ADELMAN,*
District Judge.
BAUER, Circuit Judge. Defendant-appellant, Kenneth Lewis,
appeals his conviction and sentence for wire fraud and money
Of the United States District Court for the Eastern District of Wisconsin,
*
sitting by designation.

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2 Nos. 14-2442 & 14-2597
laundering. The district court sentenced him to 151 months’
imprisonment for the four-count wire fraud conviction, and
120 months for the eleven-count money laundering conviction.
The district court ordered Lewis to serve the sentences consec-
utively.
Lewis represented himself at trial. He appeals pro se as well,
raising sundry challenges to his conviction and sentence. We
appointed an amicus curiae to argue on his behalf. The amicus
focused on Lewis’ challenges to the money laundering convic-
tion and the severity of his sentence; it did not posit any
argument regarding Lewis’ wire fraud conviction.
After the parties filed their respective briefs, but prior
to oral argument, the government conceded that it had not
presented sufficient evidence that Lewis had in fact laundered
money; there was no evidence that he had “engage[d] or
attempt[ed] to engage in a monetary transaction using crimi-
nally derived property.” 18 U.S.C. § 1957(a); see United States v.
McClellan, 794 F.3d 743, 753 (7th Cir. 2015). Accordingly, the
government agreed that we should vacate the money launder-
ing conviction, and remand the case for resentencing only on
the wire fraud conviction. Because the record is devoid of
evidence that Lewis laundered money, we oblige. See, e.g.,
United States v. Reed, 744 F.3d 519, 527 (7th Cir. 2014) (appellate
court will “overturn a verdict for insufficiency of the evidence
… if … the record is devoid of evidence from which a rational
trier of fact could find guilt beyond a reasonable doubt”
(citations omitted)).

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Nos. 14-2442 & 14-2597 3
In response to the second argument of the amicus, we add
that Lewis’ litigation tactics cannot serve as a basis for his
sentence. See United States v. Purnell, 701 F.3d 1186, 1191–92
(7th Cir. 2012). The record demonstrates that Lewis was an
irritant during the trial process. But it “would not be appropri-
ate or permissible” to lengthen his sentence because of such
vexatiousness, particularly given his pro se status. Id. at 1191;
see also, e.g., Edwards v. Cross, 801 F.3d 869, 873 (7th Cir. 2015)
(noting the leniency that courts afford pro se litigants). The
district court’s frustration, however understandable, cannot
permeate sentencing. See Purnell, 701 F.3d at 1191.
We reject Lewis’ remaining arguments as waived, under-
developed, frivolous, or otherwise without merit. See United
States v. Morris, 775 F.3d 882, 886–87 (7th Cir. 2015) (quoting
United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005))
(“Arguments clearly without merit can, and for the sake of
judicial economy should, be passed over in silence.” (Brackets
omitted)). Because Lewis has not presented a sustainable
argument against his wire fraud conviction, we affirm it
without further discussion.
Thus, we AFFIRM Lewis’ conviction for wire fraud,
VACATE his conviction for money laundering, and
REMAND the case for resentencing consistent with this
opinion.

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