One day sentence unreasonable

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A one-day sentence for a white-collar criminal who stole approximately one million dollars is unreasonably low.

In so holding on Nov. 7, the Seventh Circuit rejected the defendant’s charitable activities as a basis for a below-guideline sentence, characterizing the activities as mere “business development.”

Mark L. Repking founded and was president of Liberty Bank in Alton, Illinois. For his own benefit and that of a friend, Hank Hart, Repking misappropriated approximately $1 million from the bank.

He ultimately pleaded guilty in federal court to making false entries in the bank’s records, and filing a false tax return.

The government agreed to request a reduced sentence pursuant to U.S.S.G. 5K1.1, based on his cooperation in the prosecution of Hart. The parties also agreed that no restitution need be awarded, because Repking had already settled with the bank.

The presentence report calculated the loss as almost $1 million, and calculated the guideline range as 41-51 months. The government filed its 5K1.1 motion, and recommended a sentence of 24 months.

The district court, however, imposed only one day, and gave credit for time served. The court also imposed three years of supervised release, six months of home confinement, 900 hours of community service, a $100,000 fine, and a $75,000 forfeiture.

The government appealed, and the Seventh Circuit vacated the sentence in a per curiam opinion.

The district court had noted a number of reasons for its sentence: the absence of any need to protect the public from Repking; the need to deter others, but not Repking, from similar conduct; the statutory command to provide just punishment; the relevance of circumstances particular to Repking, like his “extraordinary” charitable works; and the pre-charge payment of restitution.

The court of appeals acknowledged that the district court sufficiently considered all the 18 U.S.C. 3553(a) factors, but concluded that none of these considerations justified the sentence.

The court began with consideration of Repking’s charitable works. Pursuant to U.S.S.G. 5H1.11, charitable works are “not ordinarily relevant,” but, post-Booker, consideration is not specifically prohibited.

However, the court concluded that the charitable works must be “exceptional” to justify such a lenient sentence, and found that Repking’s works fell short.

The court quoted, with approval, a Third Circuit case, U.S. v. Cooper, 394 F.3d 172, 176-77 (3d Cir. 2005), as follows: “it is usual and ordinary, in the prosecution of similar white-collar crimes involving high-ranking corporate executives … to find that a defendant was involved as a leader in community charities, civic organizations, and church efforts.”

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Concurring with this sentiment, the Seventh Circuit added, “We do not share the district court’s view that Repking’s charitable works were so extraordinary that they should be given weight despite the contrary view of the Sentencing Commis-sion — especially since charitable works
are entirely consistent with a bank’s business development plan.”

The court also expressed concern with the district court’s reliance on Repking’s restitution, for two reasons. First, while the bank submitted a loss amount exceeding $1 million, the record only reflected that he had sold stock to the bank in a “complex and comprehensive settlement.” Second, the court noted that restitution is mandatory for fraud offenses.

Finally, the court cited its recent decision striking down a probation-only sentence for a white-collar criminal, in U.S. v. Wallace, 458 F.3d 606 (7th Cir. 2006). Wallace received a probation-only sentence, despite a guideline range of 24-30 months, for a fraud exceeding $400,000 in intended loss.

The court concluded, “We leave open the possibility that a one-day sentence of imprisonment might be justifiable for a defendant who rivals Robin Hood; but Repking, a millionaire who stole for himself and his friends, is not that defendant.”

Accordingly, the court vacated the sentence and remanded for resentencing.

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