USA v. Warren Ballentine
Filed Nonprecedential Disposition PER CURIAM. We GRANT counsel's motion to withdraw and DISMISS the appeal. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Joel M. Flaum, Circuit Judge. [6758219-2] [6806524-1]  [15-2585]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2016
Decided December 22, 2016
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 13 CR 88
Matthew F. Kennelly,
O R D E R
For his role as a lawyer assisting in two separate mortgage‐fraud schemes, a jury
found Warren Ballentine guilty of mail fraud, 18 U.S.C. § 1341, wire fraud, id. § 1343,
two counts of financial institution fraud, id. § 1344, and two counts of making false
statements to financial institutions, id. § 1014. The district court then sentenced him on
all counts below the guidelines range to concurrent one‐day terms of imprisonment
with time served and concurrent three‐year terms of supervised release. The court also
ordered restitution of $140,940 and a $600 assessment. Ballentine filed a notice of
appeal, but his newly appointed attorney has concluded that the appeal is frivolous and
seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Ballentine has not
responded to our invitation to comment on counsel’s motion. See CIR. R. 51(b).
Counsel’s brief adequately explains the nature of the case and discusses potential issues
that an appeal of this kind might be expected to involve, and thus we limit our review
to the subjects that counsel identifies. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
In 2004 and 2005 Ballentine was involved in two schemes that used straw buyers
to obtain mortgage loans and purchase rental properties in Chicago and surrounding
suburbs. To obtain those mortgages on more favorable terms—100% financing and
lower interest rates—the straw buyers lied on their loan applications that they intended
to reside in the properties, among other falsehoods. Ballentine’s role was the same in
both schemes: He represented straw buyers at closings, which entailed going over the
closing documents with them. Among these documents was an occupancy affidavit that
required the buyer to affirm—falsely, in this case—that he or she would live in the
home. The offenses charged in the indictment focused on Ballentine’s representation of
straw buyers at the closings for two Chicago properties, at 1506 S. Spaulding and 912
W. 86th Place.
Counsel first considers whether Ballentine could challenge the sufficiency of the
evidence supporting the jury’s verdict on the offenses concerning the 1506 S. Spaulding
transaction—mail fraud, financial institution fraud, and making a false statement to a
financial institution. But counsel properly concludes that the evidence, viewed in the
light most favorable to the government, would enable a rational jury to find each
element of the charged offenses. See United States v. Cooper, 767 F.3d 721, 727 (7th Cir.
2014). The government presented evidence that at the closing Ballentine represented the
straw buyer, Marilyn Claiborne, and instructed her to sign an occupancy affidavit, even
though she told him that she would not be using the property as her residence.
Regarding mail fraud, the parties stipulated that the scheme involved the use of an
interstate commercial carrier, UPS. See United States v. Useni, 516 F.3d 634, 648 (7th Cir.
2008). As for financial institution fraud, the parties stipulated that the scheme concerned
an FDIC‐insured institution, and the government introduced evidence that Ballentine
instructed Claiborne to sign the affidavit knowing it was false. See United States v.
Parker, 716 F.3d 999, 1008 (7th Cir. 2013). And as for the charge of making a false
statement, the government introduced evidence that Ballentine counseled Claiborne to
make the false statement in order to influence the lender’s decision to extend the loan.
See United States v. Phillips, 731 F.3d 649, 650 (7th Cir. 2013) (en banc).
Counsel also properly concludes that it would be frivolous to challenge the
sufficiency of the evidence regarding the offenses pertaining to the purchase of 912 W.
86th Place—wire fraud and additional counts of financial institution fraud and making
a false statement to a financial institution. Like Claiborne, the straw buyer, Dina Dunn,
testified that Ballentine represented her at a closing, at which she falsely affirmed in an
occupancy affidavit that she would make the property her primary residence. A rational
jury could infer that Ballentine knew that the statement was false because just three
days earlier he represented Dunn at another closing, at which she had signed another
occupancy affidavit. Also at that closing, Dunn added, Ballentine had hushed her when
she inadvertently mentioned renovating her actual residence, and he told her that, if
anyone asked, she should say that she would be moving into the home she was
purchasing. This evidence supported the conclusion that Ballentine knowingly and
intentionally participated in a scheme to defraud the lender by counseling Dunn to
falsely state her intention to occupy the property, and the parties stipulated that the
lender was an FDIC‐insured institution and that it financed the purchase through an
interstate wire transfer.
Counsel next considers whether Ballentine could challenge the district court’s
calculation of the guidelines range but rightly concludes that any argument would be
frivolous. In its calculation, the court accepted each of Ballentine’s objections to the
presentence report—lowering the loss amount substantially and declining to apply two‐
level adjustments for the use of a special skill and the use of sophisticated means in the
offense. The court properly calculated a guidelines range of 30 to 37 months, based on a
total offense level was 19 (a base offense level of 7 plus a 12‐level increase for the loss of
$341,000), U.S.S.G. § 2B1.1(a)(1), (b)(1)(G), and a criminal history category of I.
Counsel also considers whether Ballentine could challenge the reasonableness of
his sentence, but properly concludes that such a challenge would be frivolous.
Ballentine received a term of just a single day of imprisonment, and a sentence below
the guidelines range is presumptively reasonable on appeal, see Rita v. United States, 551
U.S. 338, 347 (2007); United States v. Purham, 795 F.3d 761, 765 (7th Cir. 2015). Counsel
does not identify any reason to challenge that presumption here, and we perceive none.
And the district court adequately considered the factors in 18 U.S.C. § 3553(a),
addressing, among other things, Ballentine’s lack of criminal history, the deterrent effect
of his likely disbarment, his inexperience as a lawyer at the time of his actions, and his
relatively minimal role in the schemes. See id. § 3553(a)(1), (2).
Counsel does not mention any of the conditions of supervised release that the
district judge imposed, but these include one condition that we have criticized. The
condition that prohibits Ballentine from leaving the judicial district without permission
may improperly impose strict liability. See United States v. Brown, 823 F.3d 392, 395
(7th Cir. 2016). Nevertheless, we have no reason to believe that Ballentine wants to
challenge this condition because counsel did not identify it as a potential issue and
Ballentine—who currently is serving his supervised‐release term—did not respond to
the Anders brief. See United States v. Bryant, 754 F.3d 443, 447 (7th Cir. 2014). Moreover, if
Ballentine finds the condition to be vague, confusing, or burdensome, he is free to seek
modification under 18 U.S.C. § 3583(e)(2). See Brown, 823 F.3d at 395; United States v.
Neal, 810 F.3d 512, 518–20 (7th Cir. 2016).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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