                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53



            United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                               Submitted April 5, 2005
                                Decided May 11, 2005

                                       Before

                     Hon. KENNETH F. RIPPLE, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Nos. 04-3486 & 04-3487

UNITED STATES OF AMERICA,                       Appeals from the United States
    Plaintiff-Appellee,                         District Court for the Southern
                                                District of Illinois.
      v.
                                                No. 03 CR 30225
DAVID J. RENNICKE and CRYSTAL
D. RENNICKE,                                    G. Patrick Murphy,
     Defendants-Appellants.                     Chief Judge.


                                     ORDER

        David and Crystal Rennicke lied to the Department of Veterans Affairs and the
Social Security Administration about being wheelchair-bound , thus reaping $185,000
in disability benefits plus equipment and grants intended to make their home and
vehicles handicapped-accessible. After a joint trial, a jury found the Rennickes guilty
of conspiracy to commit wire and mail fraud by making false statements to the
Department of Veterans Affairs, 18 U.S.C. §§ 371, 1341, 1343, and knowingly making
false statements to the Department of Veterans Affairs and the Social Security
Administration, id. § 1001(a)(2). The district court sentenced the Rennickes each to
the statutory maximum of 60-months’ imprisonment on each count, to run
concurrently, 3 years’ supervised release, and to pay $185,114 in restitution. The
Rennickes filed notices of appeal, but both their appointed lawyers now seek to
withdraw because they cannot find a nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (1967). Pursuant to Circuit Rule 51(b), the Rennickes
Nos. 04-3486 & 04-3487                                                           Page 2

received notice of counsel’s motions but did not reply. The attorneys’ consolidated
Anders brief is facially adequate, so we limit our review to the potential issues the
lawyers identify. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per
curiam). We agree with counsel that those potential arguments would be frivolous
and thus grant their motions to withdraw.

       Evidence at trial revealed that, from September 1999 to the discovery of the
fraud in the spring of 2003, the Rennickes repeatedly lied to employees of the
Department of Veterans Affairs and the Social Security Administration, telling them
that either David or Crystal was confined to a wheelchair and that the other spouse
was the sole caregiver. The jury found the Rennickes guilty in a general verdict, but
did not determine the total amount of loss.

       Before preparation of the presentence reports and sentencing, the Supreme
Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), which holds that facts,
except for prior convictions, that increase a “statutory maximum” must be admitted
or proven beyond a reasonable doubt to a jury, and we interpreted Blakely to apply to
the United States Sentencing Guidelines in United States v. Booker, 375 F.3d 508
(7th Cir. 2004). The probation officer still relied on the sentencing guidelines in her
presentence reports to arrive at an imprisonment range for both defendants of 21 to
27 months. That range was calculated after basing a 10-level upward adjustment on
a loss amount of $185,114. See U.S.S.G. § 2B1.1(a)(2), (b)(1)(F) (2003). The
Rennickes raised a Sixth Amendment objection under Blakely to the loss calculation,
arguing that the jury had not found the amount beyond a reasonable doubt. The
government, meanwhile, filed its own objection, arguing that the intended loss
exceeded $2.5 million because the Rennickes would have continued to receive benefits
had their fraud not been discovered, and so the imprisonment range should be from
63 to 78 months. The government urged the court to sentence the Rennickes to 63
months by imposing partially consecutive sentences as mandated by U.S.S.G.
§ 5G1.2(d) to reach a minimum range.

       During sentencing the district court recognized the Sixth Amendment problem
identified first in our Booker decision and later by the Supreme Court when it
affirmed our judgment, see United States v. Booker, 125 S. Ct. 738 (2005).
Consequently, the district court proceeded as though the guidelines were defunct and
it was bound only by the prescribed statutory limits. The court thus settled on 60
months’ total imprisonment for each defendant, citing the “ugly” facts of the case in
explanation. But recognizing that the Supreme Court might well uphold the
guidelines as mandatory, the district court also announced an alternative, guideline
sentence of 63 months’ imprisonment for both Rennickes. That sentence was based
on the court’s adoption of the government’s recommendations for a loss amount
exceeding $2.5 million, and for a “sophisticated means” adjustment under U.S.S.G.
§ 2B1.1(b)(8)(C) (2003).
Nos. 04-3486 & 04-3487                                                            Page 3

        In their Anders brief, counsel consider disputing the sufficiency of the evidence
but suggest that the trial produced overwhelming evidence of the fraud that the
Rennickes perpetrated to receive government disability benefits. We agree. Several
employees of the affected government agencies testified to statements that both
David and Crystal Rennicke made during medical exams and interviews, as well as in
applications they completed and mailed, about David Rennicke’s inability to walk.
Other agents testified to separate claims Crystal Rennicke made that she could not
walk. Eyewitnesses, including a social security employee, a car salesman, and an
investigator for the Department of Veterans Affairs, all recounted seeing both David
and Crystal Rennicke on separate occasions walking unassisted without the use of a
wheelchair. The investigator even videotaped David Rennicke doing intensive yard
work. With this overwhelming evidence of guilt, an argument that no rational trier
of fact could have found the essential elements of the crimes beyond a reasonable
doubt would be frivolous. See United States v. Gardner, 238 F.3d 878, 879 (7th Cir.
2001) (standard for sufficiency of the evidence).

        Counsel for Crystal Rennicke next contemplates whether she could argue that
the district court abused its discretion in denying her motion to be tried separately.
But counsel correctly recognizes that Crystal Rennicke would not be able to show
actual prejudice that deprived her of her right to a fair trial. See United States v.
Souffront, 338 F.3d 809, 828 (7th Cir. 2003). None of David Rennicke’s post-arrest
statements implicating his wife were admitted at trial. Instead, only pre-arrest
statements made in furtherance of the Rennickes’ conspiracy were admitted, and this
would have been permissible as nonhearsay regardless whether the trials had been
severed. See United States v. Handlin, 366 F.3d 584, 591 (7th Cir. 2004) (because
coconspirators’ statements could have been introduced as nonhearsay in separate
trials, no prejudice from failure to sever). In any event, Crystal Rennicke did not
renew her motion to sever at the close of evidence, so she would have waived the
argument. See United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002). The
argument would be frivolous.

        In addition, counsel contemplate challenging the Rennickes’ sentences under
Booker but conclude that the district court was “constrained only by the applicable
statutory sentencing range,” which the Rennickes received. We agree with counsel as
far as their conclusion that an argument under Booker would be frivolous, but our
reasoning diverges. The Supreme Court in Booker did not return to district courts
the complete sentencing discretion that they enjoyed preguidelines; rather, the
guidelines “continue to inform the district judges’ decisions,” and those courts must
still consider the factors listed in 18 U.S.C. § 3553(a). United States v. George, 403
F.3d 470, 472 (7th Cir. 2005); see Booker, 125 S. Ct. at 757. In this case, the district
court erred in proceeding as though the guidelines were entirely defunct when
sentencing the Rennickes. But, because the court imposed sentences that were three
Nos. 04-3486 & 04-3487                                                           Page 4

months less than the minimum term designated by the guidelines, and those
guidelines were correctly calculated, any error would be harmless. See George, 403
F.3d at 473 (finding harmless error where court failed to consider guidelines but
nevertheless imposed sentence lower than guideline range). Relying on the
government’s intended-loss calculation rather than the probation officer’s calculation
of actual loss, the district court properly increased the Rennickes’ sentences based on
an intended future loss of $2.5 million under the assumption that they would not
have discontinued their scheme until caught. See U.S.S.G. § 2B1.1 cmt. n. 3 (loss is
greater of actual loss or intended loss). Although the probation officer did not rely on
the amount of the intended loss for fear that it was too speculative, we have upheld a
similar intended loss calculation where the defendants ended the scheme only
because they were caught. See United States v. Rettenberger, 344 F.3d 702, 708-09
(7th Cir. 2003). Likewise the court’s “sophisticated means” adjustment under
U.S.S.G. § 2B1.1(b)(8)(C) is also supported by the similar facts of Rettenberger and its
application there. See id.

       The court then lawfully imposed partial consecutive sentences beyond the five-
year statutory maximum for the conspiracy offenses, see 18 U.S.C. § 371, in order to
reach the resulting guideline range of 63 to 78 months for each defendant. Courts
may choose to impose consecutive sentences to the extent necessary to reach the
guideline range in accordance with U.S.S.G. § 5G1.2(d). See United States v. Noble,
299 F.3d 907, 909 (7th Cir. 2002) (imposing consecutive sentences above statutory
maximum to reach guideline range under § 5G1.2(d) is lawful). Because the
Rennickes were each convicted of multiple counts, allowing consecutive sentences,
the district court correctly considered the range to be 63 to 78 months for each
defendant when deciding to depart downward three months when imposing 60-month
sentences. And, based on this downward departure from a properly calculated
sentence, no principled argument could be made that the Rennickes’ sentences were
unreasonable even though the district court acted as if it retained its preguidelines
discretion. See George, 473 F.3d at 473 (where guidelines range is properly
calculated, “[i]t is hard to conceive of below-range sentences that would be
unreasonably high”); see also Booker, 125 S. Ct. at 765-66 (appellate courts should
review sentences for reasonableness).

        Finally, counsel consider a potential argument based on ineffective assistance
of trial counsel for failing to convince the jury that the Rennickes were not guilty.
But, as counsel recognize, claims about trial counsel’s ineffectiveness are better saved
for collateral review where the record is directed toward examining the reasons
underlying counsel’s choices and tactics. See United States v. Rezin, 322 F.3d 443,
445 (7th Cir. 2003).

      We therefore grant counsel’s motions to withdraw and dismiss both appeals.
