United States v. Joshua Belk, 435 F.3d 817 (7th Cir. 2006). · Go Syfert
United States v. Joshua Belk, 435 F.3d 817 (7th Cir. 2006). Cases Citing This Book View Copy Cite
38 citation events (38 in the last 25 years) across 1 distinct court.
Strongest positive: United States v. Nicole Smith (ca7, 2023-08-07)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Nicole Smith
7th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence high
the 'crime' covered by 1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. this indictment laid out, and the jury convicted belk of, a multi- year scheme to defraud .... restitution for the whole scheme is in order.
examined Cited as authority (verbatim quote) United States v. Matthew Smith
7th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence high
the 'crime' covered by 1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. this indictment laid out, and the jury convicted belk of, a multi- year scheme to defraud .... restitution for the whole scheme is in order.
examined Cited as authority (verbatim quote) United States v. Kerri Agee
7th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence high
the 'crime' covered by 1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. this indictment laid out, and the jury convicted belk of, a multi- year scheme to defraud .... restitution for the whole scheme is in order.
examined Cited as authority (verbatim quote) United States v. Chad Griffin
7th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence high
the 'crime' covered by 1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. this indictment laid out, and the jury convicted belk of, a multi- year scheme to defraud .... restitution for the whole scheme is in order.
examined Cited as authority (verbatim quote) United States v. Kelly Isley
7th Cir. · 2023 · quote attribution · 1 verbatim quote · confidence high
the 'crime' covered by 1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. this indictment laid out, and the jury convicted belk of, a multi- year scheme to defraud .... restitution for the whole scheme is in order.
examined Cited as authority (verbatim quote) United States v. Magana-Bonner, Maria
7th Cir. · 2008 · quote attribution · 1 verbatim quote · confidence high
protest about the amount of restitution 6 nos. 06-3350 06-3351 likewise fails to the extent it rests on booker, for restitution lacks a 'statutory maximum' and the whole apprendi framework (of which booker is an instance) therefore is inapplicable.
discussed Cited as authority (verbatim quote) United States v. Hale, Matthew F.
7th Cir. · 2006 · signal: see · quote attribution · 1 verbatim quote · confidence high
udges may continue to make findings based on a preponderance of the evidence, provided that they do not treat the sentencing guidelines as 'laws' with binding effect.
cited Cited as authority (rule) United States v. LaTonya Foxx
7th Cir. · 2024 · confidence medium
United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006); Locke, 643 F.3d at 247 .
cited Cited as authority (rule) United States v. LaTonya Foxx
7th Cir. · 2024 · confidence medium
United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006); Locke, 643 F.3d at 247 .
cited Cited as authority (rule) United States v. Brian Wilbourn
7th Cir. · 2015 · confidence medium
United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006).
cited Cited as authority (rule) United States v. Brian Wilbourn
7th Cir. · 2015 · confidence medium
United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006).
cited Cited as authority (rule) United States v. Booker Sewell
7th Cir. · 2015 · confidence medium
United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006).
discussed Cited as authority (rule) United States v. Peugh
7th Cir. · 2012 · confidence medium
Peugh is correct that he can be required to pay restitution only for losses caused by crimes of which he was convicted, see United States v. Frith, 461 F.3d 914, 92021 (7th Cir.2006); United States v. Belk, 435 F.3d 817, 819-20 (7th Cir.2006), but he is wrong that the district court should not have ordered him to pay restitution for all three loans described in the indictment.
discussed Cited as authority (rule) United States v. Bonner
7th Cir. · 2008 · confidence medium
Id. at 338 (emphases added); see also United States v. Milkiewicz, 470 F.3d 390, 404 (1st Cir.2006) (“Post-conviction judicial fact-finding to determine [the] amount [of restitution] by no means imposes a punishment beyond that authorized by jury-found or admitted facts, or beyond the statutory maximum as that term has evolved in the Supreme Court’s Sixth Amendment jurisprudence.” (internal quotation marks and alteration omitted)); United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006) (“[The defendant’s] protest about the amount of restitution likewise fails to the extent it rests …
discussed Cited as authority (rule) United States v. Arroyo, Ruben
7th Cir. · 2007 · confidence medium
See, e.g., United States v. Booker, 543 U.S. 220, 245-46 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005); United States v. Hale, 448 F.3d 971, 988-89 (7th Cir.2006); United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006).
discussed Cited as authority (rule) United States v. Poole, Melvain
7th Cir. · 2006 · confidence medium
At oral argument, however, Poole’s counsel acknowledged that we have repeatedly denied such challenges, see United States v. Spence, 450 F.3d 691, 696-97 (7th Cir.2006); Sliman, 449 F.3d at 800-01 ; United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006), and indicated that he simply wishes to preserve the argument.
discussed Cited as authority (rule) United States v. John J. Leahy, William E. Stratton, James M. Duff, and Terrence Dolan
7th Cir. · 2006 · confidence medium
The MVRA defines a victim as any person directly harmed by a defendant’s criminal conduct in the course of a scheme, see United States v. Belk, 435 F.3d 817, 820 (7th Cir.2006); 18 U.S.C. § 3663A(a)(2), and a government agency can be a victim for these purposes, see United States v. Sapoznik 161 F.3d 1117, 1121 (7th Cir.1998).
discussed Cited as authority (rule) United States v. Leahy, John J.
7th Cir. · 2006 · confidence medium
The MVRA defines a victim as any person directly harmed by a defendant’s criminal conduct in the course of a scheme, see United States v. Belk, 435 F.3d 817, 820 (7th Cir. 2006); 18 U.S.C. § 3663A(a)(2), and a government agency can be a victim for these purposes, see United States v. Sapoznik 161 F.3d 1117, 1121 (7th Cir. 1998).
discussed Cited as authority (rule) United States v. James Frith, Jr. (2×) also: Cited "see, e.g."
7th Cir. · 2006 · confidence medium
Restitution orders are limited to: (1) losses caused by the specific conduct that is the basis of the offense of conviction; (2) losses caused by conduct committed during “an offense that involves as an element a scheme, conspiracy, or pattern”; and (3) restitution agreed to in a plea agreement. 18 U.S.C. §§ 3663 & 3663A; Hughey v. United States, 495 U.S. 411, 413 , 110 S.Ct. 1979 , 109 L.Ed.2d 408 (1990); United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006); United States v. Randle, 324 F.3d 550, 556 (7th Cir.2003).
discussed Cited as authority (rule) United States v. Frith, James (2×) also: Cited "see, e.g."
7th Cir. · 2006 · confidence medium
Restitution orders are limited to: (1) losses caused by the specific conduct that is the basis of the offense of conviction; (2) losses caused by conduct committed during “an offense that involves as an element a scheme, conspir- acy, or pattern”; and (3) restitution agreed to in a plea agreement. 18 U.S.C. §§ 3663 & 3663A; Hughey v. United States, 495 U.S. 411, 413 (1990); United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006); United States v. Randle, 324 2 Regardless of whether an offense is listed in §§ 3663-3664, § 5E1.1 of the guidelines directs judges to order restitution whe…
discussed Cited as authority (rule) United States v. Jones, Willie H.
7th Cir. · 2006 · confidence medium
United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006) (holding that defendants who claim a Booker error cannot ignore “the remedial portion of that decision, which concluded that judges may continue to make findings based on a preponderance of the evidence, provided that they do not treat the Sentencing Guidelines as ‘laws’ with binding effect”); United States v. Robinson, 435 F.3d 699, 701 (7th Cir.2006) (“District judges must resolve disputed factual issues, determine relevant conduct by a preponderance of the evidence, and apply the appropriate sentence enhancements in order to …
discussed Cited as authority (rule) United States v. Span, Albert
7th Cir. · 2006 · confidence medium
See, e.g., United States v. Hale, 448 F.3d 971, 988-89 (7th Cir.2006) (per curiam); United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006), petition for cert. filed, (U.S. May 22, 2006) (No. 05-11262).
cited Cited as authority (rule) United States v. Smith, Richard A.
7th Cir. · 2006 · confidence medium
See United *670 States v. Hale, 448 F.3d 971, 988-89 (7th Cir.2006) (per curiam); United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006).
discussed Cited as authority (rule) United States v. Grant, Marvin
7th Cir. · 2006 · confidence medium
But counsel is correct; we have noted that “[rjestitution is limited to the loss caused by the crimes of which the defendant stands convicted, unless he agrees to pay more.” See United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006) (emphasis added).
cited Cited "see" United States v. Trevor Hinds
7th Cir. · 2014 · signal: see · confidence high
See United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006) (stating the preponderance of the evidence standard governs a district court’s findings of fact during sentencing).
discussed Cited "see" United States v. Locke (2×)
7th Cir. · 2011 · signal: see · confidence high
See United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006).
discussed Cited "see" United States v. Gilmer
7th Cir. · 2008 · signal: see · confidence high
See United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006) (citing Booker for its conclusion that “judges may continue to make findings based on preponderance of the evidence, provided that they do not treat the Sentencing Guidelines as ‘laws’ with binding effect.”).
discussed Cited "see" United States v. Gilmer, Anthony
7th Cir. · 2008 · signal: see · confidence high
See United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006) (citing Booker for its conclusion that “judges may con- tinue to make findings based on preponderance of the evidence, provided that they do not treat the Sentencing Guidelines as ‘laws’ with binding effect.”).
discussed Cited "see" United States v. Matthew Hale
7th Cir. · 2006 · signal: see · confidence high
See United States v. Belk, 435 F.3d 817, 819 (7th Cir.2006) (“[J]udges may continue to make findings based on a preponder- *989 anee of the evidence, provided that they do not treat the Sentencing Guidelines as ‘laws’ with binding effect.”).
cited Cited "see, e.g." United States v. Sliman, Morad A.
7th Cir. · 2006 · signal: see, e.g. · confidence medium
See, e.g., United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006).
cited Cited "see, e.g." United States v. Morad Abu Sliman
7th Cir. · 2006 · signal: see, e.g. · confidence medium
See, e.g., United States v. Belle, 435 F.3d 817, 819 (7th Cir.2006).
cited Cited "see, e.g." United States v. Daugherty, Patricia
7th Cir. · 2006 · signal: see also · confidence medium
See also United States *33 v. Belk, 435 F.3d 817, 819 (7th Cir.2006); United States v. Della Rose, 435 F.3d 735, 736 (7th Cir.2006).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Joshua BELK, Defendant-Appellant
05-2711.
Court of Appeals for the Seventh Circuit.
Jan 31, 2006.
435 F.3d 817
David E. Hollar (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee., Stephen Bower (argued), Cohen & Thi-ros, Merrillville, IN, for Defendant-Appellant., In 1996 George Rogge hired Joshua Belk as the bookkeeper for his insurance agency. Belk decided that he could multiply his income through embezzlement. Over the years he siphoned more than $675,000 from Rogge’s business, driving it into bankruptcy. Belk has been convicted of mail fraud, see 18 U.S.C. § 1341, because several of the devices used to divert funds from Rogge’s accounts to his own entailed mailings. Only the sentence — 51 months’ imprisonment plus $678,306.65 in restitution to George C. Rogge Agency, Inc. — is contested on appeal.
Cited by 32 opinions  |  Published

Rehearing Denied Feb. 27, 2006.

Before FLAUM, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

The eight counts of conviction stem from cheeks that diverted $60,600 from Rogge to Belk. He contends that the district court should have used this sum as both the loss, when performing the advisory Guidelines calculations, and the amount of restitution. The argument depends largely on the sixth amendment and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but ignores the remedial portion of that decision, which concluded that judges may continue to make findings based on a preponderance of the evidence, provided that they do not treat the Sentencing Guidelines as “laws” with binding effect. The district court, which sentenced Belk six months after Booker, applied that decision correctly. Belk does not deny that a preponderance of the evidence demonstrates that the loss under U.S.S.G. § 2B1.1(b) exceeds $400,000. His sentence of 51 months falls within a properly calculated range (51-63 months) for such a loss and so is presumptively appropriate. United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005); United States v. Dean, 414 F.3d 725 (7th Cir. 2005). Belk does not offer us any reason to deem his sentence unreasonable, beyond his mistaken belief that the jury had to determine the loss.

Belk’s protest about the amount of restitution likewise fails to the extent it rests on Booker, for restitution lacks a “statutory maximum” and the whole Apprendi framework (of which Booker is an instance) therefore is inapplicable. See, e.g., United States v. George, 403 F.3d 470, 473 (7th Cir.2005); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000). That the judge relied on hearsay is normal and appropriate in sentencing; Belk does not contend that this hearsay (which reflects the Rogge agency’s financial records) was unreliable. The district judge was not obliged to explain why he ordered restitution while deeming Belk unable to pay a fine. Before 1996 such an explanation for apparently inconsistent conclusions was vital, see United States v. Ahmad, 2 F.3d 245 (7th Cir.1993), but the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, makes a judgment of restitution obligatory regardless of the defendant’s current or anticipated ability to pay, so there is no inconsistency to explain.

Restitution is limited to the loss caused by the crimes of which the defendant stands convicted, unless he agrees to pay more, which Belk did not. See § 3663A(a); Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990); United States v. Peterson, 268 F.3d 533 (7th Cir.2001). Belk contends that he has been convicted only of the eight mailings by which he extracted $60,600. That misunderstands the nature of a § 1341 conviction, however. The “crime” covered by § 1341 is the scheme to defraud, not (just) the mailings that occur in the course of the scheme. This indictment laid out, and the jury convicted Belk of, a multi-year scheme to defraud Rogge’s brokerage. The eight mailings were just overt acts. Restitution for the whole scheme is in order. See, e.g., United States v. Mitrione, 357 F.3d 712, 721 (7th Cir.2004); United States v. Brown, 47 F.3d 198 (7th Cir.1995); United States v. Turino, 978 F.2d 315, 319 (7th Cir.1992); United States v. Brothers, 955 F.2d 493 (7th Cir.1992); United States v. Bennett, 943 F.2d 738 (7th Cir.1991).

We recognize that some decisions limited restitution orders to amounts entailed in those particular mailings that underlie particular counts. See, e.g., United States v. Seligsohn, 981 F.2d 1418, 1421 (3d Cir. 1992). These decisions, however, did not consider the Crime Control Act of 1990, which vindicated our approach by defining[*820] as a “victim” entitled to compensation “any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 104 Stat. 483 (1990), amending 18 U.S.C. § 3663; see also 18 U.S.C. § 3663A(a)(2). Courts that have considered the 1990 amendments follow this circuit’s approach, and the third circuit has abandoned Seligsohn. See United States v. Hensley, 91 F.3d 274 (1st Cir.1996); United States v. Kones, 77 F.3d 66, 68-70 (3d Cir.1996) (restitution is appropriate, notwithstanding Seligsohn, for losses “directly” caused by the entire scheme to defraud); United States v. Stouffer, 986 F.2d 916 (5th Cir.1993); United States v. Davis, 170 F.3d 617, 627 (6th Cir.1999); United States v. Hasson, 333 F.3d 1264, 1276 n. 13 (11th Cir.2003). No decision that has taken account of the amendments made in 1990 and 1996 supports Belk’s position.

Even apart from the statutory definition of “victim,” an approach that links restitution to the amount extracted by particular mailings is hard to reconcile with the fact that the fraud in a § 1341 offense need not be conducted through the mails. One who hatches a fraudulent scheme and uses the mails to carry truthful matter that is important to the scheme’s success still violates the statute. A good example is the odometer-rollback scheme in Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), in which the fraud was a false representation to the purchasers that led them to pay too much for used cars, while the mails were used to send documents that enabled the defendant to transfer titles to the cars’ buyers. On the view for which Belk contends, there could be no restitution for such schemes, because none of the mailings diverted any funds. Yet the fraudulent scheme would remain, and a criminal scheme that imposes loss may (and after 1996 must) lead to an award that makes the victim whole.

Affirmed