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

Nos. 05-4576 & 06-2839
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                                v.

OWEN F. SILVIOUS,
                                          Defendant-Appellant.
                         ____________
           Appeals from the United States District Court
                for the Eastern District of Wisconsin.
           No. 05 CR 74—William C. Griesbach, Judge.
                         ____________
SUBMITTED FEBRUARY 14, 20071—DECIDED JANUARY 4, 2008
                   ____________


    Before KANNE, ROVNER, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Owen Silvious pleaded guilty to
five counts of mail fraud, 18 U.S.C. § 1341, and was
sentenced to 105 months’ imprisonment and three years’
supervised release with several special conditions. The
district court also ordered restitution of approximately
$1.2 million and criminal forfeiture of the proceeds of
the fraud. Silvious had counsel in the district court but


1
  After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the
appeal is submitted on the briefs and the record. See FED. R.
APP. P. 34(a)(2).
2                                 Nos. 05-4576 & 06-2839

is representing himself on appeal. He argues that he
should have been permitted to withdraw his guilty pleas
and also challenges several aspects of his sentence. We
affirm.


                    I. Background
  Silvious contracted to supply 6500 metric tons of wheat
to Toan Hung Flour Mills (“TH Flour”), a flour mill in
Vietnam. He gave TH Flour, its bank, and the broker of
the deal, Akhtar Khwaja, numerous documents purport-
ing to demonstrate that the wheat had been inspected,
certified, and loaded onto a freighter in Houston, Texas.
Silvious accepted nearly $700,000 in payment from the
$1.17 million the flour mill paid Khwaja on the contract.
The shipment did not arrive as promised, and after first
giving assurances, Silvious ultimately claimed that the
wheat had spoiled due to poor ocean conditions and
delays at the Panama canal. A subsequent FBI investiga-
tion prompted by a complaint from the owner of TH
Flour revealed that all of the documents Silvious had
provided were fraudulent and that no shipment had ever
been arranged. As a result of Silvious’s fraud, TH Flour
defaulted on a high-interest loan and became the target
of an investigation by Vietnamese authorities.
  In March 2005 Silvious was charged with five counts
of mail fraud. The indictment also included notice that
the government would seek criminal forfeiture of certain
assets that were specifically identified as proceeds of the
crime. The indictment stated that the government sought
forfeiture pursuant to 18 U.S.C. § 982 and § 2314, and
21 U.S.C. § 853.
  Silvious and his attorney, Thomas Phillip, began plea
negotiations with the government. At the first change-of-
plea hearing, Phillip reported to the district court that
Nos. 05-4576 & 06-2839                                      3

the parties had been unable to reach terms acceptable
to Silvious, but that Silvious was contemplating enter-
ing blind pleas. A second change-of-plea hearing was
held on August 16, 2005, but when that hearing com-
menced, Silvious told the court he was reluctant to plead
guilty because (he argued) § 982 does not authorize
forfeiture of the proceeds of mail fraud. The district
court replied that any objection to the forfeiture would
be taken up at sentencing.
  During the ensuing plea colloquy, Silvious told the
court he would seek to withdraw his guilty pleas “if the
Government should do anything between now and the
day I’m sentenced that would interfere with my being
able to accomplish what has to be accomplished.” When
the judge told him that a guilty plea “disposes of ” the case,
Silvious expressed his concern that the government
would renege on an oral promise to recommend a down-
ward adjustment for acceptance of responsibility and a
prison sentence within the guidelines range. The gov-
ernment vowed to keep its promise but noted that the
district court had the final authority to select a sentence.
After Silvious stated he understood and still wanted to
proceed, the court accepted his guilty pleas to the five
counts of mail fraud.
  A hearing on sentencing and forfeiture was then sched-
uled for November 17, 2005. In the meantime, the dis-
trict court entered a preliminary order of forfeiture.
Silvious, through counsel and in a pro se brief, again
objected to the statutory basis of the forfeiture. In its
written response, the government conceded that the
statutes cited in the indictment did not authorize forfei-
ture of the proceeds of Silvious’s fraud. The government
argued, however, that forfeiture nevertheless was appro-
priate under another statute, 28 U.S.C. § 2461(c). The
government argued that § 2461(c) authorizes criminal
forfeiture in connection with any crime for which civil
4                                  Nos. 05-4576 & 06-2839

forfeiture would be authorized—and civil forfeiture for
simple mail fraud may be pursued under 18 U.S.C. § 981.
See 18 U.S.C. §§ 981(a)(1)(C), 1956(c)(7), 1961(1)(B).
  At the sentencing hearing, the district court concluded
that the statutory basis for the forfeiture as listed in the
indictment was incorrect but agreed with the govern-
ment that § 2461(c) permitted the forfeiture. The court
determined that correcting the statutory basis of the
forfeiture would not prejudice Silvious because the indict-
ment had contained the requisite notice that the govern-
ment intended to seek forfeiture. FED. R. CRIM. P. 32.2(a).
Silvious objected to the district court’s conclusion and
requested a recess.
  When the hearing resumed, Silvious requested a con-
tinuance so he could file a motion to withdraw his
guilty pleas. When asked to explain the basis of his
request, Silvious replied that he had always maintained
that he is “innocent of this crime” and that he never
intended for TH Flour to lose any money. He also accused
the government of withholding from “the Vietnamese
people” funds it already had seized. The district court
concluded that Silvious had not established good cause for
withdrawing his pleas. See FED. R. CRIM. P. 11(d)(2)(B).
The court reasoned that his claims of innocence contra-
dicted his sworn statements at his change-of-plea hear-
ing and that his motion appeared to be an attempt to
delay the proceedings.
  The court then proceeded to sentencing, and the gov-
ernment, as agreed, recommended a three-level reduction
in Silvious’s offense level for acceptance of responsibility.
U.S.S.G. § 3E1.1(a)-(b). But the district court was skepti-
cal, in particular because Silvious had not accounted for
all the proceeds of his fraud and because he had not
truthfully acknowledged his criminal conduct. The court
thus concluded that acceptance points were not war-
Nos. 05-4576 & 06-2839                                    5

ranted. The court calculated a guidelines imprisonment
range of 84 to 105 months and imposed a sentence of
105 months based in part on what it characterized as
the “extremely aggravated” nature of the offense. The
district court also imposed three years’ supervised re-
lease and imposed a number of special conditions.
Finally, the court ordered Silvious to pay restitution to
TH Flour and entered an order of forfeiture.


                     II. Discussion
  On appeal Silvious raises a dozen arguments of varying
merit. We begin with his contention that the district
court erroneously denied his motion to withdraw his
guilty pleas—a decision we review for abuse of discretion.
United States v. Rinaldi, 461 F.3d 922, 927 (7th Cir. 2006).
Once a district court accepts a guilty plea, the defendant
may withdraw it only for a “fair and just reason.” FED. R.
CRIM. P. 11(d)(2)(B); Rinaldi, 461 F.3d at 926. Legal
innocence is one such reason. See Rinaldi, 461 F.3d at
927. The burden lies with the defendant to demonstrate
a fair and just reason for withdrawal. See United States
v. Walker, 447 F.3d 999, 1004 (7th Cir. 2006).
  In the district court, Silvious stated that he was inno-
cent of the charges because he lacked fraudulent intent,
although he admitted that he “did cause some money to
be transferred to me in Virginia.” He stated that he
never wanted TH Flour to lose money and that he hoped
the money would be returned soon. The district court
found these representations weak and suspected that
Silvious sought to continue his sentencing hearing
simply as a delay tactic. More importantly, the district
court found Silvious’s claims of innocence were not
credible in light of his Rule 11 colloquy, during which he
admitted the factual basis prepared by the government.
We see no abuse of discretion in the district court’s
6                                  Nos. 05-4576 & 06-2839

decision not to allow the eleventh-hour withdrawal of the
guilty pleas. See, e.g., United States v. Jones, 381 F.3d
615, 617-18 (7th Cir. 2004).
  We next turn to the arguments Silvious raises regard-
ing his sentence, beginning with an issue of first im-
pression relating to the forfeiture. Silvious argues the
forfeiture is invalid because it was ordered under stat-
utes other than those listed in the indictment. As
Silvious pointed out and the government properly con-
ceded, 18 U.S.C. § 982 authorizes the forfeiture of the
proceeds of mail fraud only where the violation affected a
financial institution. See 18 U.S.C. § 982(a)(2)(A); United
States v. Vampire Nation, 451 F.3d 189, 198-99 (3d Cir.
2006). However, the district court agreed with the gov-
ernment that forfeiture is authorized by another pro-
vision, 28 U.S.C. § 2461(c), which provides in relevant
part:
    If a person is charged in a criminal case with a viola-
    tion of an Act of Congress for which the civil or crimi-
    nal forfeiture of property is authorized, the Govern-
    ment may include notice of the forfeiture in the in-
    dictment or information pursuant to the Federal
    Rules of Criminal Procedure. If the defendant is
    convicted of the offense giving rise to the forfeiture,
    the court shall order the forfeiture of the property as
    part of the sentence.
We have not had occasion to interpret § 2461, but other
circuits that have considered the issue have adopted the
interpretation advanced by the government and accepted
by the district court that the statute authorizes criminal
forfeiture of the proceeds of any offense for which there
is no specific statutory basis for criminal forfeiture as
long as civil forfeiture, see 18 U.S.C. § 981, is permitted
in connection with that offense. See Vampire Nation,
451 F.3d at 200 (holding that § 2461(c) permits criminal
Nos. 05-4576 & 06-2839                                     7

forfeiture of proceeds of “basic” mail fraud); United States
v. Razmilovic, 419 F.3d 134, 136 (2d Cir. 2005) (“Section
2461(c) thus authorizes criminal forfeiture as a punish-
ment for any act for which civil forfeiture is authorized.”).
We agree with this interpretation. Accordingly, we evalu-
ate Silvious’s argument from the premise that the statu-
tory basis for the forfeiture, as ultimately ordered, was
sound.
  Silvious contends the forfeiture nevertheless is inva-
lid because the substitution of the statutory basis
amounted to a “constructive amendment” of the indict-
ment and a violation of the notice requirements of Rule
32.2(a) of the Federal Rules of Criminal Procedure. We
reject this argument; the indictment was not broadened
in any way by the substitution of the proper statute.
See United States v. Mitov, 460 F.3d 901, 906 (7th Cir.
2006) (“For a change in the indictment to rise to the level
of a constructive amendment, it must establish an offense
different from, or in addition to, those originally
charged.”). In fact, we doubt the concept of construc-
tive amendment applies here at all because it is con-
cerned with “changes made to the indictment that affect
elements of the crime.” Id. (emphasis added). The Supreme
Court has made clear that despite the unique procedural
safeguards that must accompany it, forfeiture is part of
the sentence, not a substantive charge in itself. See
Libretti v. United States, 516 U.S. 29, 39-41 (1995).
  Silvious further contends he was given insufficient
notice under Rule 32.2(a), which prevents a district court
from ordering criminal forfeiture unless the indictment
includes notice that the government will seek forfeiture
“as part of any sentence in accordance with the ap-
plicable statute.” Silvious asserts that the indictment
did not list the “applicable statute,” and therefore the
forfeiture is invalid. We do not agree with his reading of
Rule 32.2(a). The “essential purpose” of notice is to inform
8                                   Nos. 05-4576 & 06-2839

the defendant that the government seeks forfeiture so the
defendant can marshal evidence in his defense. United
States v. Diaz, 190 F.3d 1247, 1257 (11th Cir. 1999)
(interpreting old Rule 7(c)(2)); see United States v. Loe, 248
F.3d 449, 464 (5th Cir. 2001). Here, the indictment
informed Silvious that the government intended to
seek forfeiture, and it identified the targeted assets.
Listing the wrong forfeiture statute did not prevent
Silvious from receiving notice under Rule 32.2(a).
  Silvious next argues that the district court erroneously
refused to grant him a reduction in his offense level for
acceptance of responsibility. Whether a defendant has
accepted responsibility is a factual determination ordi-
narily reviewed for clear error, see United States v.
McIntosh, 198 F.3d 995, 999 (7th Cir. 2000), although the
parties suggest that we should review for plain error
because Silvious did not object. We do not find the sen-
tencing transcript conclusive on this point, and in any
event, our conclusion does not rest on the standard of
review. We defer to a district court’s decision whether
to award acceptance points because the question often
turns on the defendant’s credibility. See id. Here, we see
no error in the district court’s assessment that Silvious,
in failing to fully account for the proceeds of his crime
and attempting to delay a long-scheduled hearing based
on an incredible claim of innocence, did not accept respon-
sibility. U.S.S.G. § 3E1.1 cmt. n.1(a), (c), (e). Moreover,
Silvious provides no support for his serious charge that
he was denied acceptance points because of the district
judge’s prejudice against him. Although Silivous ap-
pears to believe that acceptance points are automatic
when a defendant pleads guilty, in fact the burden lies
with the defendant to demonstrate that the reduction is
warranted. See id.
  Silvious also challenges the imposition of various
special conditions of supervised release in addition to the
Nos. 05-4576 & 06-2839                                    9

mandatory conditions required by 18 U.S.C. § 3583(d); he
argues the conditions are overbroad and insufficiently
explained. Specifically, Silvious challenges the conditions
that he refrain from all forms of gambling and join Gam-
bler’s Anonymous, maintain only one personal checking
account, possess or use a computer with Internet access
only with the prior approval of a probation officer, and
“repatriate all monies” in his Haitian bank account. As
Silvious concedes, our review is for plain error because
he did not object to the imposition of these conditions in
the district court. See United States v. McKissic, 428 F.3d
719, 721-22 (7th Cir. 2005).
  Section 3583(d) requires that special conditions of
supervised release be no greater a deprivation of liberty
than reasonably necessary and bear a reasonable rela-
tionship to the particular circumstances of the case. United
States v. Scott, 316 F.3d 733, 735 (7th Cir. 2003). Two of
the special conditions imposed on Silvious strike us as
overbroad and unrelated to the circumstances of this
case. First, the ban on gambling and the requirement
that Silvious attend Gambler’s Anonymous meetings
appears arbitrary on this record, which contains no
evidence that Silvious has a gambling problem. The
government suggests the condition will prevent Silvious
from losing money that should go to restitution. This
justification is weak absent any evidence that Silvious
is a gambler; moreover, it is the government’s, not the
district court’s, explanation. Second, as we have explained
in other cases, a total ban on the use of computers with
access to the Internet is in most cases an overbroad
condition of supervised release. See McKissic, 428 F.3d
at 726; United States v. Holm, 326 F.3d 872, 878-79
(7th Cir. 2003). We have not ruled out the possibility that
such a condition might be justified in some cases, but
nothing in the record suggests this is one of them. We
conclude the district court erred in imposing these two
10                                 Nos. 05-4576 & 06-2839

conditions without relating them to the circumstances of
the case as required by § 3583(d)(1)-(3).
  But we do not think that the district court’s imposition
of these two overbroad conditions amounts to plain error
requiring our intervention. In particular, Silvious has
not established that the error affected his substantial
rights or that a failure to correct it would jeopardize the
fairness, integrity, or public reputation of the criminal
proceedings. See United States v. Olano, 507 U.S. 725, 734-
36 (1993). As we noted in McKissic, and more recently
in United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.
2007), conditions of supervised release are readily modifi-
able at the defendant’s request. See 18 U.S.C. § 3583(e)(2);
FED. R. CRIM. P. 32.1(c). Encouraging this simple ex-
pedient to remedy erroneously imposed conditions,
rather than perpetuating expensive and time-consuming
appeals and resentencings, promotes the integrity and
public reputation of criminal proceedings. See Tejeda, 476
F.3d at 475.
  The other challenged conditions are more closely re-
lated to the facts of Silvious’s case and consistent with
§ 3583(d)(1)-(3). It is obvious why the district court
would require Silvious to repatriate the funds in his
offshore account, and to the extent that he claims he
already has done so, this condition has no adverse effect
on him. We note, however, that the court ordered Silvious
to take this action both as part of restitution and as a
condition of supervised release. Under these circum-
stances, the district court might wish to clarify whether
the repatriation of the funds in the Haitian account
was intended to be a condition of supervised release at all.
See United States v. Castillo, 406 F.3d 806, 811 (7th Cir.
2005). We also discern no error with respect to the re-
quirement that Silvious maintain just one checking
account. See United States v. Ensminger, 174 F.3d 1143,
Nos. 05-4576 & 06-2839                                   11

1148 (10th Cir. 1999) (upholding identical condition).
Although the district court did not say so explicitly, the
probation office’s monitoring of Silvious’s finances will
be simplified if his accounts are limited. Silvious does
not object because he wants to have more accounts;
instead, he “doubts any bank will accept him as a cus-
tomer.” We do not understand the condition as requiring
him to have a checking account, but rather as limiting
his past practice of spreading his funds across multiple
accounts.
  Silvious next contends that the district court erred by
instructing in the written judgment that he pay his
monetary penalties “in quarterly installments of an
amount not less than $25 during the period of incar-
ceration.” According to Silvious, the district judge told
him at sentencing that he was to make payments while
on supervised release. But the court also told Silvious
that “[t]he restitution is outstanding now” and that the
Bureau of Prisons would collect payments, so the written
and oral pronouncements are consistent. We note, how-
ever, that each was incomplete. The district judge did
not orally state the amount of the quarterly payments,
and the written judgment includes the payment plan as
a “special instruction,” although the box indicating that
payments are due immediately is unchecked. Although
we do not believe this requires reversal, the district court
might wish to clarify what appears to be a clerical over-
sight on the written judgment.
  Silvious’s guilty pleas, which we have concluded may
stand, waived a number of his remaining arguments. See
United States v. Rogers, 387 F.3d 925, 932 (7th Cir. 2004)
(explaining that guilty plea “operates as a waiver of all
non-jurisdictional defects”). For example, he has waived
the argument that FBI agents conducted an illegal
search and seizure of his property in Virginia. See id. at
934. Also waived is Silvious’s contention that the mail
12                                 Nos. 05-4576 & 06-2839

fraud statute is “ambiguous” and should not be construed
to allow multiple convictions for the same scheme. We note
for completeness that the argument is also frivolous.
Each mailing was properly charged as a separate viola-
tion of the statute. See United States v. Ledesma, 632
F.2d 670, 679 (7th Cir. 1980).
  We dispose of Silvious’s remaining arguments sum-
marily. He argues that the district court’s fact-finding
regarding the amount of loss caused by his fraud violates
the Sixth Amendment as interpreted in United States v.
Booker, 543 U.S. 220 (2005), and related cases. Silvious
made no objection based on Booker in the district court,
and in any event, the district court committed no error,
plain or otherwise, because it applied the sentencing
guidelines in an advisory manner. Silvious’s contention
that the district court lacked jurisdiction because he did
not commit an “offense against the laws of the United
States” and because the plaintiff is “the United States of
America” and not “the United States” is frivolous. See, e.g.,
United States v. Banks-Giombetti, 245 F.3d 949, 953 (7th
Cir. 2001). Finally, Silvious waived his argument that
certain property was not forfeitable because it was not
proceeds of his fraud; he does not even identify the prop-
erty he says was wrongly forfeited. See Holm, 326 F.3d
at 877 (perfunctory arguments are waived).
                                                 AFFIRMED.
A true Copy:
      Teste:

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


                   USCA-02-C-0072—1-4-08
