Opinion
24-1164
07-25-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSHAUN TERRY, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted July 24, 2024
Appeal from the United States District Court for the Central District of Illinois. No. 22-cr-10028-001 Michael M. Mihm, Judge.
Before ILANA DIAMOND ROVNER, Circuit Judge AMY J. ST. EVE, Circuit Judge JOHN Z. LEE, Circuit Judge
ORDER
Roshaun Terry appeals an order requiring the restitution of unemployment benefits fraudulently obtained during the COVID-19 pandemic. See 18 U.S.C. § 1343, § 641. Her appointed lawyer asserts that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief explains the nature of the appeal and addresses the issues that an appeal of this kind might be expected to involve. Because counsel's analysis appears adequate, and Terry did not respond to the motion, see CIR. R. 51(b), we limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (2014).
Terry pleaded guilty in 2017 to wire fraud and submitting false, fictitious, or fraudulent claims. See 18 U.S.C. § 1343, § 287. She was released from prison in the summer of 2020.
While on supervised release, she submitted applications for unemployment benefits in both Illinois and Minnesota under the Pandemic Unemployment Assistance program. See 15 U.S.C. § 9025. On the applications she stated, falsely, that she was out of work because of the pandemic. Both states began providing her benefits.
The probation officer who monitored Terry's bank records soon noticed irregularities in her bank account. The officer confronted her, and Terry later admitted to him that she had filed the claims fraudulently. The officer, in turn, petitioned to revoke her supervised release. At the revocation hearing, Terry acknowledged the fraud; the district court revoked her supervised release and sentenced her to twelve months' imprisonment. See United States v. Terry, No. 17-40080 (C.D. Ill. Apr. 16, 2021).
A year later, in August 2022, a grand jury indicted Terry for defrauding the United States to obtain unemployment benefits in Illinois and Minnesota. Terry later entered an open plea of guilty. At the plea colloquy, where she was represented by counsel, she confirmed that she understood the charges and admitted to making false statements to obtain unemployment benefits.
In advance of sentencing, the probation office prepared a Presentence Report stating that Terry owed $16,854 in restitution to Illinois and $5,319 to Minnesota. (The restitution amount from Illinois was calculated by totaling the deposited amounts of benefits specified in separate counts of the indictment. The Minnesota amount was based on a letter from the state recognizing that it had overpaid her and asking her to pay back that sum.) Terry's counsel objected to the PSR, stating that Terry did not believe she should have to pay restitution for benefits received from Illinois on January 5, 2021 (count six of the indictment)-amounting to $574-because she in fact was unemployed at the time. The probation office revised the PSR to note the objection.
At the sentencing hearing, the district court twice asked Terry if there was anything in the PSR that she thought was inaccurate or incomplete that she wished to challenge. The first time, Terry said only that the report did not mention the educational programs she had completed. The second time, Terry confirmed there was nothing else in the report that she wished to challenge. The court ultimately sentenced her to a below-guidelines sentence of nine months' imprisonment (which she appears to have since served) and three years' supervised release. The court also ordered her to pay $22,173 in restitution.
On appeal, counsel does not tell us, as he should, whether he has consulted with Terry about a potential challenge to her guilty plea. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). But we can overlook counsel's misstep because challenging the plea would be frivolous. Because Terry did not move to withdraw her guilty plea in the district court, our review would be for plain error, see United States v. Hogue, 998 F.3d 745, 751 (7th Cir. 2021), and a review of the plea colloquy shows that the district court substantially complied with Rule 11 of the Federal Rules of Criminal Procedure. Even though the court omitted mention of Terry's right to representation at trial, see FED. R. CRIM. P. 11(b)(1)(D), the oversight was harmless because Terry was informed at an earlier proceeding of her right to an attorney, she was represented by counsel at the colloquy, and the record does not suggest she would have done things differently had the judge informed her of the right. See United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir. 1988).
Counsel does consider whether Terry could challenge two parts of her restitution order. First, he considers arguing that the $574 restitution imposed on count six should not have been ordered because Terry in fact was unemployed on the date in question. Counsel rightly concludes that she waived this argument when, at sentencing, she confirmed that the information contained in the PSR was factually correct. See United States v. Harris, 102 F.4th 847, 851 (7th Cir. 2024). The court asked her if anything in the report was incomplete or inaccurate, and she answered no. Having confirmed the accuracy of the facts in the PSR, which included documentation that the $574 payment was obtained by fraud, Terry cannot now contest that restitution amount. See id. Even if she forfeited rather than waived this challenge, we see no basis for reversal under the plain-error standard, especially where, as here, she appears to have had a strategic reason for not objecting-any objection would have contradicted her admission at her change-of-plea hearing that she had obtained the $574 through fraud. See United States v. Robinson, 964 F.3d 632, 641-42 (7th Cir. 2020) (no error, plain or otherwise, for court to sentence defendant-who had failed to object to certain drug quantity-based upon his admissions at change-of-plea hearing and his strategic reason to acquiesce).
Second, counsel asks whether Terry could challenge the $5,319 in restitution she owes to Minnesota. Counsel understands Terry to contend that this amount is based upon inaccurate and insufficient information. But as counsel rightly observes, Terry waived this challenge by confirming at the sentencing hearing that she had no objections to the information contained in the PSR. See Harris, 102 F.4th at 851.
We therefore GRANT counsel's motion to withdraw and DISMISS the appeal.