O R D E R
Kevin Smith was sentenced to 118 months in prison for bank fraud. He now challenges several aspects of his conviction and sentence. We affirm. While working as a loan originator at a bank, Smith arranged a mortgage-fraud scheme. He contacted property owners and offered to find buyers for their Chicago- area properties in exchange for a portion of the proceeds. He recruited buyers at real- estate seminars, but many did not qualify for government-insured mortgages. So Smith falsified information on the loan applications, misrepresenting that the properties would be primary residences and concealing the source of both downpayments and post-closing kickbacks. Smith submitted or encouraged others to submit 14 fraudulent loan applications in total. All 14 properties were foreclosed upon or sold at a loss. Because the Federal Housing Administration and the U.S. Department of Veterans Affairs backed the mortgages, the banks passed off much of the $2.3 million loss to the government.
Smith was indicted in 2021 for five counts of bank fraud under 18 U.S.C. § 1334. More than three and a half years later, he was convicted by a jury of all five counts and later sentenced to 118 months' imprisonment.
On appeal, Smith first asserts that the judge violated his Sixth Amendment right to self-representation. See Faretta v. California, 422 U.S. 806, 819 (1975). Early in the proceedings, Smith decided to proceed pro se, and the judge appointed an attorney during a dispute over Smith's waiver of his right to counsel. Specifically, the judge sought counsel's recommendation on whether Smith needed to waive his right under oath. After determining that no oath was needed, the judge dismissed counsel. Smith now argues, in only general terms, that the appointment of counsel here, however limited, burdened his right to self-representation. See Imani v. Pollard, 826 F.3d 939, 941-42 (7th Cir. 2016).
This argument is meritless. The judge was required to ensure that Smith's waiver of his right to counsel was knowing and intelligent, see United States v. Vizcarra-Millan,
15 F.4th 473, 489 (7th Cir. 2021), and for this purpose he appointed counsel. More importantly, Smith represented himself in every other phase of his trial, including those phases most central to the right to self-representation. See McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) (defendant must be allowed to present his own defense, make motions, argue points of law, and address the court and jury).
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Second, Smith challenges the judge's revocation1of his pretrial release based on his violation of the condition that he "appear in court as required." The judge found that Smith violated that condition by waiting until the morning of trial disclose that his vision was too poor to proceed. See 18 U.S.C. § 3148(b)(1)(B). Although Smith showed up in court, his unwillingness to participate meant he had not appeared as required by the terms of release. Smith now challenges this finding, arguing that the conditions of release required only his physical presence in court.
But the revocation of Smith's pretrial release was appropriate. To revoke Smith's pretrial release, the judge had to find, first, that Smith violated a condition of release and, second, that he was unlikely to abide by the conditions of release, see 18 U.S.C. § 3148(b); United States v. Wilks, 15 F.4th 842, 848 (7th Cir. 2021). And here the judge made both findings. Regardless of whether Smith violated his pretrial release by his conduct on the morning of trial, he already had failed to appear at three different hearings, violating his pretrial release each time. To the extent he maintains that the court should not have revoked his release sua sponte, the court did not in fact act on its own—the government had moved to revoke his release three weeks earlier, after Smith failed to appear at a hearing for the third time.
Third, Smith argues that the judge violated the Speedy Trial Act by providing insufficient or impermissible reasons for excluding time from the 70-day period within which a defendant must be tried. See 18 U.S.C. § 3161(c)(1), (h)(7). By Smith's count, 435 days accumulated on the speedy-trial clock from his first appearance in court to the day he was allowed to proceed pro se (March 11 to July 30, 2021) and from the revocation of his pretrial release to the first day of trial (August 28, 2023, to August 27, 2024). These calculations are not correct. Only 18 days accumulated on the speedy-trial clock.2Long swaths of time—at least 315 days—were excluded automatically as the
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court conducted proceedings to determine whether Smith was physically fit for trial, reviewed pretrial motions, and awaited our decisions in Smith's many interlocutory appeals. See 18 U.S.C. § 3161(h)(1)(A), (C), and (D). Smith argues that delays related to his physical fitness were unnecessary after he turned over his medical records, but the speedy-trial clock stops until the judge resolves whether a defendant is fit for trial. See United States v. Patterson, 872 F.3d 426, 434 (7th Cir. 2017). The judge appropriately excluded the remainder of time in the interests of justice, citing the need for the parties to review discovery, litigate pretrial motions, and effectively prepare, among other reasons. See 18 U.S.C. § 3161(h)(7)(A), (B)(iv). Smith argues that some days should not have been excluded because he lacked access to discovery and had difficulty preparing while detained. But docket entries reflect that for much of this time Smith was preparing for trial—filing pretrial motions, lodging interlocutory appeals, and seeking discovery. Additional periods of time were also properly excluded so that the government could prepare. See 18 U.S.C. § 3161(h)(7)(B)(iv).
Next, Smith challenges the calculation of his offense level, disputing the factual bases for a three-level enhancement for his role as a manager or supervisor of the offense under U.S.S.G. § 3B1.1(b). He adds that if not for this enhancement, he would have been eligible for a two-level decrease under § 4C1.1(a) because he had no other criminal history. He argues that his involvement in 14 fraudulent mortgage applications is merely coincidental and that the government did not prove that he facilitated a kickback scheme.
But the judge appropriately applied the § 3B1.1(b) enhancement because Smith recruited at least twelve knowing accomplices and dictated key aspects of the scheme. Smith encouraged the buyers to lie on loan applications, provided them with illegal downpayments by proxy, and delivered undisclosed post-closing kickbacks. These facts supported applying the enhancement. See United States v. Causey, 748 F.3d 310, 321 (7th Cir. 2014) (two-level enhancement for recruiting buyer and encouraging her to ignore fraudulent information on loan application); United States v. Robertson, 662 F.3d 871, 877-78 (7th Cir. 2011) (two-level enhancement for recruiting buyers, providing downpayments, and encouraging buyers to lie about source of downpayments). August 27, 2024, because the judge delayed trial by a day to accommodate the court's schedule. See id. § 3161(h)(7)(C).
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Smith likewise challenges a two-level enhancement for obstruction of justice under § 3C1.1, disputing the judge's factual findings that he fabricated vision problems to delay trial. But we will not disturb these findings unless "we are left with a definite and firm conviction that a mistake has been made," United States v. Pugh, 147 F.4th 801, 808 (7th Cir. 2025) (citation omitted), which is not the case here, particularly because Smith waited until the morning of trial to raise the issues and then refused to attend court-arranged ophthalmologist appointments. Further, the judge permissibly applied the two-level increase because "malingering or feigning incompetence may constitute an obstruction of justice for purposes of a sentencing enhancement." See United States v. Bowling, 952 F.3d 861, 870 (7th Cir. 2020) (mutism feigned to delay trial). Lastly, Smith argues that the judge did not explain the reasoning behind the sentence or address unwarranted sentencing disparities as required by 18 U.S.C. § 3553(a). But the judge considered and explained all required factors at length before imposing the within-guidelines sentence. See United States v. Stephens, 986 F.3d 1004, 1010-11 (7th Cir. 2021).
We have evaluated the remainder of Smith's claims, but none has merit.
AFFIRMED
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