                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-3370
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

GARY VAN WAEYENBERGHE,
                                         Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
    for the Northern District of Indiana, South Bend Division.
              No. 3:04-CR-87—Allen Sharp, Judge.
                         ____________
  ARGUED SEPTEMBER 6, 2006—DECIDED MARCH 27, 2007
                   ____________


 Before ROVNER, EVANS, and SYKES, Circuit Judges.
  ROVNER, Circuit Judge. Despite the promising name—
First Choice Investment Capital—First Choice should not
have been the first choice for any investor. This is be-
cause it was a fraud. Set up to market earned automobile
receivables (EARs) as an investment opportunity that
would return 11% interest on a monthly basis, the pro-
gram flourished at collecting investors’ money. It did not,
however, do so well at returning it. Consequently, Gary
Van Waeyenberghe, the mastermind behind First Choice
and at least one other investment “opportunity,” was
charged in a 54-count indictment with conspiracy to
defraud, 18 U.S.C. § 371, mail fraud, 18 U.S.C. § 1341,
wire fraud, 18 U.S.C. § 1343, and money laundering, 18
2                                              No. 05-3370

U.S.C. § 1957. The jury returned a verdict of guilty on all
counts, and Van Waeyenberghe appeals, raising a num-
ber of issues related to his trial and sentencing.


                            I.
  The details of the programs Van Waeyenberghe ran are
dizzying, and not particularly pertinent to the issues he
raises on appeal. We thus provide only a brief overview of
First Choice and another related program that formed the
basis for the charges against Van Waeyenberghe. In 1999
Van Waeyenberghe incorporated First Choice Manage-
ment Services in Carson City, Nevada, as an investment
program purchasing automobile receivables. The premise
of the program was that First Choice would own car lots,
and investors would put up the capital to purchase receiv-
ables on the car loans. In theory, a car buyer would be
charged between 18 and 24% interest, and 11% of that
would go to the investor. First Choice would keep the
remainder as profit.
   Van Waeyenberghe started First Choice with the help of
several other business acquaintances, most of whom later
pleaded guilty and testified against Van Waeyenberghe
at trial. Patrick Ballinger had previously worked with
Van Waeyenberghe at a company called Yucatan Invest-
ments that sold time shares in a Cancun hotel. Dennis
Weaver also worked with Van Waeyenberghe at Yucatan.
Together the three of them formed First Choice. Van
Waeyenberghe named himself as the President and
Weaver as the Secretary. At trial Ballinger described
himself as Van Waeyenberghe’s “right-hand man.” Because
the three of them had little experience with automobile
receivables, they signed a joint venture agreement with
a company called Tamarack Funding that had an estab-
lished automobile receivables program. Despite Tama-
rack’s initial involvement, it left the venture in less than
No. 05-3370                                            3

two months. First Choice, however, continued to use
Tamarack’s materials, altering the name and other
pertinent information so that it applied to First Choice.
  First Choice’s EAR program was remarkably successful.
It was marketed by Benny Morris, who was Weaver’s
nephew. Morris, an experienced insurance recruiter,
started a company called Integras Capital Group to
market the EAR program. In return for his marketing,
he received 16% of First Choice product sales.
  Marketers promised investors in the program two
security features. First, the investors’ money would be
kept in segregated Merrill Lynch accounts. By keeping
the accounts segregated (or at least claiming to), First
Choice avoided the licensing requirements triggered by
pooled investments, which are subject to securities laws.
Second, the investments would be backed by insurance
policies through Lloyd’s of London. Many of the former
First Choice investors who testified at trial reported
that they believed the EAR program would be a secure
investment because of the Merrill Lynch accounts and
Lloyd’s of London insurance.
  The EAR investments, however, were never insured by
Lloyd’s of London, nor did Van Waeyenberghe and his
business affiliates use segregated Merrill Lynch ac-
counts except in a handful of the numerous investments
in the EAR program. Instead, the vast majority of the
investors’ funds were simply pooled. The money was kept
primarily in an account in a bank in Michigan called
Shoreline Bank. First Choice did have a Merrill Lynch
general account, but it was not tied to the automobile
receivables. Moreover, that account was later closed when
Merrill Lynch discovered that First Choice was using
its name in marketing materials without authorization.
A similar account was then opened at Prudential, but it
never contained segregated investor accounts.
4                                           No. 05-3370

  The money was also not used to purchase automobile
receivables. Van Waeyenberghe and his associates did
purchase car lots—a total of 6—that were supposed to
supply the automobile receivables. The lots, called Cars
Across America, were run by a car salesman named
Andrew Compton. But instead of buying automobile
receivables, Van Waeyenberghe and Ballinger simply
assigned VIN numbers to investors based on the amount
of money invested in the program and the dollar amounts
Compton reported from the Cars Across America car lots.
  The money flowing in from the EAR program was
instrumental in the second investment opportunity Van
Waeyenberghe established. Called “Real Estate First
Mortgages” (RFMs), it was a program based on property
purchased by Van Waeyenberghe, Ballinger, and Weaver
in Branson, Missouri. Using money from the EAR pro-
gram, they incorporated “Forever Country Theatres” to
purchase a large hotel called the Branson Inn Complex
for $26 million. Van Waeyenberghe had a plan to sell
fractional interests in the existing rooms at the Branson
Inn or in new units that would be built as the complex
was remodeled. For as little as $5,000, an investor could
purchase an “interest” in the complex. In return the
investor would receive a mortgage for a week at the
Branson Inn, backed by an insurance policy and a record-
able instrument. Investors were promised a 12% return
and were also told their money would be placed in a
segregated cash management account at a brokerage firm.
  Like the EAR program, the RFM program was not
actually insured. Moreover, the “mortgages” purchased
by investors were not actually mortgages. Notably, the
RFM program was taking investor money to purchase
mortgages in March 2000, despite the fact that Forever
Country Theaters did not close on the Branson Inn Com-
plex until June of that year.
No. 05-3370                                             5

  In July 2000, the FBI executed a search warrant at Van
Waeyenberghe’s home in Mishawaka, Indiana—the site
where Van Waeyenberghe conducted most of First Choice’s
business operations. The government filed the 54-
count indictment against Van Waeyenberghe in federal
district court in September 2004. In the interim, Van
Waeyenberghe signed a consent judgment to conclude a
civil action against him by the Securities and Exchange
Commission (“SEC”).
  At trial, a number of Van Waeyenberghe’s former
business partners in First Choice testified against him.
Patrick Ballinger (who was on supervised release for an
unrelated 2001 fraud) testified pursuant to a plea agree-
ment entered in conjunction with charges against him
and Dennis Weaver arising from the entertainment
complex in Branson, Missouri. Ballinger explained his role
in the EAR program and his failed attempts to acquire
insurance coverage for the automobile receivables. He
also described how he had taken Tamarack’s materials
and replaced the Tamarack name with First Choice.
Andrew Compton testified under a letter of immunity
about his role in receiving money from First Choice to
buy automobiles for Cars Across America car lots. Benny
Morris also testified about his role recruiting investors
for First Choice. He testified pursuant to a plea agree-
ment for mail fraud in connection with First Choice.
Dennis Weaver also testified pursuant to a plea agreement
entered on charges arising from the property in Branson.
Weaver testified about the incorporation of Forever
Country Theaters to buy the Branson property. Two
other business associates—Ron Wanek and Perry Mul-
lins—also testified about their respective roles. Wanek
testified that he tracked the money from investors
and recorded their names. Mullins testified under a grant
of immunity and explained that the EAR program had too
much investor money and not enough cars.
6                                                No. 05-3370

  The jury found Van Waeyenberghe guilty on all counts,
and the district court sentenced him to 168 months’
imprisonment, two years of supervised release, and
restitution of $20.9 million. Van Waeyenberghe appeals.


                             II.
  On appeal, Van Waeyenberghe first argues that the
district court erred by failing to contemporaneously
instruct the jury that the guilty pleas of the three main
government witnesses were not evidence of Van
Waeyenberghe’s guilt. He also maintains that the court
did not properly instruct the jury regarding the weight to
be given the testimony of those witnesses who received
letters of immunity. Because Van Waeyenberghe never
requested a curative instruction following the testimony of
Ballinger, Morris, Weaver, Mullins, or Compton, he must
show that the district court committed plain error by
failing to issue the contemporaneous instruction. Thus,
Van Waeyenberghe must show that (1) the district court
erred, (2) the error was plain, and (3) it affected Van
Waeyenberghe’s “substantial rights.” United States v.
Tolliver, 454 F.3d 660, 664 (7th Cir. 2006). If Van
Waeyenberghe succeeds in demonstrating as much, we
have discretion to correct the error if it “ ‘seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.’ ” Id. (quoting United States v. Trennell, 290
F.3d 881, 887 (7th Cir. 2002)). The use of a cautionary
instruction is “ ‘committed to the discretion of the district
court, which is best situated to detect and deal with
threats of unreliable testimony,’ ” and our review is
deferential. United States v. Jordan, 223 F.3d 676, 692
(7th Cir. 2000) (quoting United States v. Cook, 102 F.3d
249, 252 (7th Cir. 1996)).
 Van Waeyenberghe argues that the district court com-
mitted plain error here by failing to issue a curative
No. 05-3370                                                7

instruction immediately following each mention of the
witnesses’ agreements with the government. To buttress
his argument that such an omission constituted plain
error, Van Waeyenberghe cites a 1973 case in which we
found reversible error in a district court’s refusal to give
any cautionary instruction whatsoever regarding an
accomplice’s testimony at trial. See United States v. Wasko,
473 F.2d 1282, 1284-85 (7th Cir. 1973). Unlike Wasko,
however, here the district court, following Seventh Circuit
Pattern Jury Instruction 3.13 (1999), did admonish the
jury to consider the testimony in question “with caution
and great care.” Thus, Van Waeyenberghe’s argument
amounts to a dispute about the timing of the court’s
cautionary instruction.
  Van Waeyenberghe cites no authority, nor are we
aware of any, holding that a district court is required to
give a cautionary instruction immediately following
testimony that should be considered with caution. To the
contrary, we noted in Cook that “[a]s far as we can make
out, this court has never reversed a criminal conviction
for failure to give an instruction stating that informants’
testimony should be given special scrutiny.” 102 F.3d at
253 (7th Cir. 1996) (emphasis added). Although Wasko may
be the exception to this generalization, the bottom line
here is that we would be hard-pressed to find any error,
plain or otherwise, in a case such as this where the district
court did give a cautionary instruction, just not at the
precise time Van Waeyenberghe now suggests would have
been preferable. The district court gave the appropriate
instruction and Van Waeyenberghe was allowed to probe
the credibility of those witnesses testifying pursuant to
plea agreements or letters of immunity. Nothing more is
necessary. See On Lee v. United States, 343 U.S. 747, 757
(1952) (“The use of informers, accessories, accomplices,
false friends, or any of the other betrayals which are ‘dirty
business’ may raise serious questions of credibility. To the
8                                               No. 05-3370

extent that they do, a defendant is entitled to broad
latitude to probe credibility by cross-examination and to
have the issues submitted to the jury with careful instruc-
tions.”); United States v. Heath, 447 F.3d 535, 540 (7th Cir.
2006) (noting that decision whether to give instruction on
informant’s credibility problems is left to district court’s
discretion and reversal is required only when prejudice
occurs).
  Van Waeyenberghe next contends that his double
jeopardy rights were violated on account of the civil ac-
tion brought by the SEC. The SEC and the Department
of Justice conducted parallel investigations into Van
Waeyenberghe’s alleged fraud. The SEC filed a complaint
against Van Waeyenberghe and First Choice, and Van
Waeyenberghe entered a consent decree in that action
in January 2003, over a year-and-a-half before the grand
jury returned the indictment with criminal charges. Under
the terms of the consent decree, Van Waeyenberghe was
to disgorge profits of $24.5 million plus $6.8 million in
prejudgment interest and pay a $110,000 civil penalty. As
part of the consent decree, Van Waeyenberghe agreed to
“waive any claim of Double Jeopardy based upon the
settlement of this proceeding, including the imposition of
any remedy or civil penalty herein.”
   Based on the foregoing language, the government
maintains that Van Waeyenberghe waived any claim of
double jeopardy; alternatively, it contends that no double
jeopardy problem arises as a result of the civil settle-
ment and later criminal charges. Van Waeyenberghe
first raised the double jeopardy issue shortly before trial
in a pro se motion to terminate his counsel. In that motion,
Van Waeyenberghe took issue with his trial counsel’s
refusal to contact the attorney who had represented him
during the SEC proceedings. Van Waeyenberghe claimed
that this previous attorney (who was no longer represent-
ing him at the time he reached the settlement with the
No. 05-3370                                               9

SEC) had told him that he should mount a double jeopardy
challenge to the eventual criminal prosecution. According
to Van Waeyenberghe, his trial attorney discounted Van
Waeyenberghe’s claim of double jeopardy without sufficient
investigation. This alleged deficiency was one of several
shortcomings highlighted in Van Waeyenberghe’s motion.
  The district court denied Van Waeyenberghe’s motion
for new counsel, and rejected the double jeopardy issue
in passing. The court considered the double jeopardy
issue adequately covered by its own recent opinion (which
it attached to its decision as an appendix) rejecting a
defendant’s double jeopardy challenge to a civil Federal
Trade Commission action that preceded his criminal
indictment. Van Waeyenberghe now asserts that the
district court was obliged to hold a hearing to deter-
mine whether the purported waiver of his double jeopardy
claim was voluntary and also whether the SEC penalty
was civil or criminal in nature.
  Waivers of constitutional rights must be knowing and
voluntary. E.g., Hartjes v. Endicott, 456 F.3d 786, 793 (7th
Cir. 2006). Van Waeyenberghe points to several cases
where purported waivers of Double Jeopardy rights were
held invalid to support his argument that the provision in
his consent decree was not sufficiently specific to consti-
tute a waiver of his rights. In United States v. Hudson, 14
F.3d 536 (10th Cir. 1994), the Tenth Circuit concluded
that the language “nothing herein constitutes, nor shall
Respondent contend that it constitutes, a waiver of any
right, power, or authority of any other representatives
of the United States . . . to bring other actions . . .” did
not waive a defendant’s double jeopardy rights. Hudson
relied heavily on the fact that the language did not enu-
merate any specific rights or defenses being waived;
rather, it simply provided that the government had not
waived its right to bring other charges. Id. at 539. The
Second Circuit reached a similar conclusion based on
10                                              No. 05-3370

language in a consent order that provided that the order
did not “compromise, settle, dismiss, resolve, or in any
way affect . . . any civil or criminal claims, actions, or
charges against or liability of respondent . . . .” See United
States v. Morgan, 51 F.3d 1105, 1109 (2d Cir. 1995). In
both cases, the waiver was not sufficiently knowing and
voluntary in part because the relevant language did not
specify that the respondent was waiving double jeopardy
rights.
   In contrast, the provision in Van Waeyenberghe’s
consent decree specifies that he agrees to “waive any claim
of Double Jeopardy based upon the settlement of
this proceeding.” Such a specific reference to Van
Waeyenberghe’s right to waive “any” double jeopardy claim
is distinguishable from the language in the cases on which
Van Waeyenberghe relies. As Van Waeyenberghe points
out, however, the language also does not specifically bar
double jeopardy claims in future criminal proceedings.
Thus, although the language may be more specific than
that rejected in Morgan and Hudson, it is not so crystal
clear that we are willing to reject Van Waeyenberghe’s
challenge based on the purported waiver alone. Cf. Walton
v. Briley, 361 F.3d 431, 433-34 (7th Cir. 2004) (noting
presumption against waiver of fundamental trial rights).
  Given the posture of the case, it is ultimately unneces-
sary to rely on the purported waiver in the consent decree.
As the government points out, Van Waeyenberghe never
specifically raised a double jeopardy challenge to his
indictment in the district court. Instead, in the course of
detailing a litany of counsel’s perceived shortcomings, he
expressed his frustration at counsel’s refusal to raise such
a challenge on his behalf. This filing is insufficient to put
the double jeopardy claim itself before the district
court––thus, Van Waeyenberghe has forfeited the claim.
See United States v. Hawk, 434 F.3d 959, 962 (7th Cir.
2006) (rejecting defendant’s argument that general objec-
No. 05-3370                                                  11

tion in district court to recommendation in PSR was broad
enough to encompass his more specific argument on
appeal); United States v. Rogers, 382 F.3d 648, 650 (7th
Cir. 2004) (“The purpose of the rules on forfeiture is to
give the district court the first opportunity to correct any
errors that may arise, and something as general as
expressing displeasure at a longer term of supervised
release does not serve that purpose.”). As such, he must
demonstrate plain error arising from the district court’s
handling of his claim. See United States v. Schlifer, 403
F.3d 849, 853 (7th Cir. 2005). But here again Van
Waeyenberghe would be hard-pressed to demonstrate
that the district court’s rejection of his double jeopardy
claim without a hearing was so “obvious, crucial, and
egregious that we should correct it despite the absence of
an objection below.” United States v. Firishchak, 468 F.3d
1015, 1026 (7th Cir. 2006).
   The Double Jeopardy Clause protects only against
multiple criminal punishments meted out in successive
proceedings. E.g., Hudson v. United States, 522 U.S. 93, 98
(1997). The initial test of whether a punishment is civil or
criminal is whether the legislature “indicated either
expressly or impliedly a preference for one label or the
other.” Id. at 99 (quoting United States v. Ward, 448 U.S.
242, 248 (1980)). The SEC penalties on their face are civil
in nature. See 15 U.S.C. §§ 77t(d), 78u(d)(3); see also
United States v. Polichemi, 219 F.3d 698, 711 (7th Cir.
2000); United States v. Perry, 152 F.3d 900, 904 (8th Cir.
1998) (“SEC disgorgement remedies are not criminal
punishments”); United States v. Gartner, 93 F.3d 633, 635
(9th Cir. 1996) (same); SEC v. Bilzerian, 29 F.3d 689, 696
(D.C. Cir. 1994) (same). Thus, Van Waeyenberghe must
demonstrate that the statutory scheme is so punitive
in purpose or effect that the civil remedy has been trans-
formed into a criminal penalty. Hudson, 522 U.S. at 99.
“ ‘Only the clearest proof ’ will suffice to override legislative
12                                                     No. 05-3370

intent and transform what has been denominated a civil
remedy into a criminal penalty.” Id. at 100 (quoting Ward,
448 U.S. at 249). Van Waeyenberghe has not advanced
such proof here. He claims that the district court should
have made such a determination by analyzing the seven
factors laid out in Hudson.1 But Van Waeyenberghe
himself offers little to no analysis under Hudson as to why
the injunction, disgorgement, and restitution required of
him are anything other than equitable remedies that
present no bar to subsequent criminal prosecution. See
S.A. Healy Co. v. Occupational Safety & Health Review
Comm’n, 138 F.3d 686, 688 (7th Cir. 1998) (“[M]oney
penalties have not been viewed historically as criminal
punishment.”); cf. United States v. Newman, 144 F.3d 531,
538 (7th Cir. 1998) (observing “non-punitive character of
restitution”). He does suggest cursorily that the $110,000
civil penalty was excessive. But assessing a civil penalty
itself does not create a double jeopardy problem, Helvering
v. Mitchell, 303 U.S. 391 (1938) (civil penalty for fraud
does not violate Double Jeopardy Clause), and the amount
at issue here falls far short of demonstrating by the
clearest proof that the civil remedy is actually a criminal
punishment. All of this buttresses our conclusion that the
district court did not plainly err in its handling of the


1
  The factors are “(1) ‘[w]hether the sanction involves an
affirmative disability or restraint’; (2) ‘whether it has historically
been regarded as a punishment’; (3) ‘whether it comes into play
only on a finding of scienter’; (4) ‘whether its operation will
promote the traditional aims of punishment—retribution and
deterrence’; (5) ‘whether the behavior to which it applies is
already a crime’; (6) ‘whether an alternative purpose to which it
may rationally be connected is assignable for it’; and (7) ‘whether
it appears excessive in relation to the alternative purpose
assigned.’ ” Hudson, 522 U.S. at 99-100 (quoting Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).
No. 05-3370                                               13

double jeopardy claim, which Van Waeyenberghe never
explicitly raised as its own issue. We therefore reject Van
Waeyenberghe’s challenge based on the Double Jeopardy
Clause.
  Van Waeyenberghe next takes issue with the district
court’s refusal to appoint new counsel. When a defendant
has explained to the court his reasons for requesting
new counsel, the court’s decision to deny that request is
reviewed only for abuse of discretion. United States v.
Harris, 394 F.3d 543, 551 (7th Cir. 2005). Perhaps in an
attempt to avoid this standard, Van Waeyenberghe
claims that he was not allowed to explain his reasons
for wanting new counsel to the district court. Van
Waeyenberghe’s motion requesting new counsel, however,
explained in detail why he thought new counsel necessary.
As recounted above, Van Waeyenberghe thought his
appointed counsel should have consulted the attorney
who represented him during part of the SEC proceedings.
He also took issue with counsel’s refusal to file a motion on
Van Waeyenberghe’s behalf to secure his access to the
prison library, a bill of particulars, and “at least ten other
motions.” After reading the motion and assessing Van
Waeyenberghe’s reasons, the district court concluded that
the request was nothing more than a tactic to delay trial.
Because Van Waeyenberghe’s motion laid out his reasons
for desiring new counsel, we review the district court’s
conclusion for an abuse of discretion.
  In assessing whether the district court abused its
discretion, we consider the timeliness of Van
Waeyenberghe’s motion, the adequacy of the district
court’s inquiry into the motion, and whether Van
Waeyenberghe’s conflict with counsel effectively resulted
in a total lack of communication that precluded an ade-
quate defense. Id. 552. Notwithstanding an abuse of
discretion, we will affirm the district court’s decision
unless Van Waeyenberghe can establish that he was
14                                              No. 05-3370

deprived of his Sixth Amendment right to effective assis-
tance of counsel. Id. As the district court pointed out in
its denial of Van Waeyenberghe’s motion, it was made
just weeks before trial, leading the district court to be-
lieve that Van Waeyenberghe’s primary purpose was
to delay trial. We are also unpersuaded that Van
Waeyenberghe’s conflict with his counsel amounted to a
complete breakdown of communication. Although Van
Waeyenberghe expressed dissatisfaction with counsel’s
decision not to contact Van Waeyenberghe’s former coun-
sel in the SEC proceeding and not to file all of the motions
Van Waeyenberghe thought necessary, differences in
strategy do not constitute grounds for new counsel. See
Woods v. McBride, 430 F.3d 813, 827-28 (7th Cir. 2005)
(“personality conflicts and disagreements over trial
strategy . . . do not constitute reversible error.”). Although
the district court could have inquired into the motion more
thoroughly by holding a hearing to question Van
Waeyenberghe about the nature of his conflict with
counsel, the district court’s decision does not amount to
abuse of discretion.
  That leaves Van Waeyenberghe’s challenges to his
sentence. Relying on United States v. Booker, 543 U.S. 220
(2005), Van Waeyenberghe argues that his sentence
violates his Fifth Amendment rights because the district
court increased the sentence in reliance on facts not
found beyond a reasonable doubt. This argument is
frivolous. It is very clear in this circuit (and others) that
because the Guidelines are advisory, judicial factfinding
does not create a Fifth Amendment problem under Booker.
See, e.g., United States v. White, 443 F.3d 582, 592 (7th
Cir. 2006).
  Van Waeyenberghe’s remaining challenge to his sen-
tence fares no better. Because Van Waeyenberghe’s crime
was fraud, the district court began with a base offense
level of six. See U.S.S.G. § 2X1.1(a) (1998). It then added
No. 05-3370                                              15

sixteen levels based on the loss amount. See U.S.S.G.
§ 2F.1.1(b)(1)(Q). From there the court added two more
levels because the scheme had more than 600 victims,
U.S.S.G. § 2F1.1(b)(2), two levels because mass market-
ing was involved, U.S.S.G. § 2F1.1(b)(3), two levels because
the offense involved “sophisticated means,” U.S.S.G.
§ 2F1.1(b)(5)(C), and four levels because Van
Waeyenberghe organized or led five or more participants,
U.S.S.G. § 3B1.1(a). Van Waeyenberghe does not suggest
that the evidence did not support the upward adjustments.
Instead, he claims that the cumulative effect of the
adjustments renders his sentence unreasonable. Any
sentence properly calculated, as Van Waeyenberghe’s
was, is entitled to a rebuttable presumption of reasonable-
ness. United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Van Waeyenberghe can rebut this “deferential
standard” only by demonstrating that his sentence is
unreasonable when measured against the sentencing
factors in 18 U.S.C. § 3553. Id. at 608.
  Van Waeyenberghe acknowledges that the district court
considered the § 3553(a) factors when sentencing him,
but claims cursorily that the district court did not con-
sider that the cumulative effect of the adjustments re-
sulted in an unreasonably high sentence. But it is Van
Waeyenberghe’s conduct that resulted in the adjust-
ments—and none are premised on identical behavior
such that impermissible double-counting is an issue. See
United States v. Schmeilski, 408 F.3d 917, 919 (7th Cir.
2005) (recognizing that impermissible double counting
occurs only when multiple adjustments are premised on
“identical” facts, not when there is some factual overlap in
the conduct supporting multiple upward adjustments).
Here, the district court properly calculated the guideline
range, and after considering the § 3553(a) factors, sen-
tenced Van Waeyenberghe at the low end of that range. We
see nothing unreasonable about the resulting 168-month
16                                         No. 05-3370

sentence Van Waeyenberghe received for his far-reach-
ing fraudulent conduct.


                         III.
 For the foregoing reasons, we AFFIRM              Van
Waeyenberghe’s convictions and sentence.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—3-27-07
