United States v. Precious House , 883 F.3d 720 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-3474
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PRECIOUS W. HOUSE,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 00010 — Andrea R. Wood, Judge.
ARGUED DECEMBER 1, 2017 — DECIDED FEBRUARY 27, 2018
Before BAUER, FLAUM, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. On March 19, 2015, a jury convicted
defendant-appellant Precious House of six counts of bank
fraud, in violation of 18 U.S.C. § 1344, as a result of his involve-
ment in a fraudulent automobile loan scheme. At sentencing,
the district court determined the appropriate Sentencing
Guidelines range was 108 to 135 months’ imprisonment, and
2 No. 15-3474
sentenced House to serve 108 months. House appeals from that
sentence, arguing that the district court improperly applied a
three-level enhancement by finding that House was a manager
or supervisor of the scheme, pursuant to § 3B1.1(b) of the
Sentencing Guidelines. We affirm.
I. BACKGROUND
From approximately February to December 2013, House
and his co-defendants participated in a scheme to secure
automobile loans—and retain a percentage of the pro-
ceeds—by falsifying income and vehicle information for
individuals who were seeking personal loans.
House owned a wholesale car dealership called Rolling
Auto. In September 2012, he approached co-defendant Crystal
Williams, who was working for a lending consulting company
at the time, and proposed a plan in which they would seek
loans by falsely stating that Rolling Auto intended to sell cars
to loan applicants. He picked an unreliable partner; Williams
entered into a plea agreement with the government and
provided the core testimony at trial against House and co-
defendants Brian Hughes and Murchael Turner. She testified
that, as part of the scheme, she prepared loan applications for
19 different borrowers, none of whom would actually purchase
a vehicle from Rolling Auto. On those loan applications,
Williams falsified details such as registration fees, balances
due, taxes owed, and the names of salespersons. House
provided her with the details of vehicles she could use on false
purchase orders that would correspond with the amounts
sought by the borrowers. Specifically, House supplied her with
the make, model, color, year, vehicle identification numbers,
No. 15-3474 3
mileage, and price for vehicles that neither he nor Rolling Auto
owned.
Williams would ensure that the loan checks were made
payable to Rolling Auto, and instructed the borrowers to send
the loan checks to Rolling Auto’s address. In some cases,
House deposited the checks in Rolling Auto’s business
checking account at TCF Bank, retaining a certain percentage
of the funds, and distributed the remainder to Williams and
the borrower, based on the amounts Williams provided. In
other cases, House cashed the checks at a currency exchange
before retaining his percentage and distributing the remainder.
House signed the checks in his role as owner of Rolling Auto.
In March 2013, TCF returned one of the checks House had
deposited, which caused the Rolling Auto business account to
go into the negative. Williams anticipated that the bank might
close the account as a result, so she suggested that they open
another account with Bank of America. House provided her
with Rolling Auto’s employer identification number and other
information, and she opened a new account in Rolling Auto’s
name. House continued to deposit checks into that account and
distribute the funds as he had done previously.
In July 2013, credit unions began denying loans to Rolling
Auto. In response, Williams proposed creating a new business
to use as a front for the car loans. Williams drafted articles of
incorporation, which she sent to House for review, for a
company called Xpress Automotives; the business was not
operational, nor did it own a car lot or any cars. After Williams
filed the paperwork, House used Xpress Automotives to apply
for and receive nine additional loan checks.
4 No. 15-3474
House was personally involved in applying for 51 loans to
credit unions for fictitious auto sales in 2013. Thirty-six of those
were approved, resulting in total loan proceeds of $1.1 million.
House personally kept $105,589.96 of that money, which was
the most in relation to his co-defendants. Williams took
approximately $60,000, Hughes took approximately $68,000,
and Turner approximately $2,500.
On March 19, 2015, a jury found House guilty of all six
counts of bank fraud against him. Prior to his sentencing, the
United States Probation Office filed a Presentence Investigation
Report (PSR), which recommended a total offense level of 31,
combined with a criminal history category of II, to reach a
Sentencing Guidelines range of 121 to 151 months’ imprison-
ment. As part of its calculation, the PSR included a four-level
enhancement for being the organizer or leader of criminal
activity, pursuant to § 3B1.1(a) of the Sentencing Guidelines.
House and the government each filed a sentencing memo-
randum in response to the PSR. The government recom-
mended a three-level enhancement for being a manager or
supervisor, pursuant to § 3B1.1(b). Among his other objections,
House contended that no enhancement under that section was
warranted, as there was no hierarchy among the participants,
and everyone played an equal role.
The district court held a sentencing hearing on August 10,
2015. As to the arguments regarding the § 3B1.1 enhancement,
the court found that the co-defendants had distinct roles in the
scheme. It found that House was involved in the planning of
the scheme, particularly with the idea to use fictitious car sales
as a front for obtaining the loans. The court noted that House
No. 15-3474 5
used his business, Rolling Auto, as the cover, which meant that
he was necessarily involved in the key aspects of planning the
scheme. It also highlighted the fact that House earned the most
money and touched the highest number of transactions of all
the co-defendants. The court acknowledged that House did not
recruit participants to the same extent as the others, but the
totality of his conduct qualified him for the three-level en-
hancement for being a manager or supervisor of the scheme.
The court accepted the remainder of the PSR’s recommen-
dations and calculated a total offense level of 30, resulting in a
Sentencing Guidelines range of 108 to 131 months. After
evaluating the requisite factors under 18 U.S.C. § 3553(a), the
court sentenced House to 108 months’ imprisonment. House
timely appealed.
II. DISCUSSION
When considering a challenge to an enhancement under
§ 3B1.1 of the Sentencing Guidelines, we review the district
court’s factual determinations for clear error, and we review
whether those facts support the enhancement de novo. United
States v. Harris, 791 F.3d 772, 780 (7th Cir. 2015) (citations
omitted). “We reverse a district court’s application of a
Guidelines enhancement only if we are left with a ‘definite and
firm conviction that a mistake has been made.’” Id. (quoting
United States v. Johnson, 489 F.3d 794, 796 (7th Cir. 2007)).
Sentencing Guidelines § 3B1.1 provides for enhancements
based on a defendant’s role in his offense. Where a crime
involves five or more participants “or is otherwise extensive,”
a defendant receives a four-level enhancement if he is an
“organizer or leader” of the scheme, and a three-level enhance-
6 No. 15-3474
ment if he is a “manager or supervisor.” U.S.S.G. § 3B1.1(a)
and (b). House concedes that his crime involved five or more
participants or was “otherwise extensive.” He argues only that
he should not have received a three-level enhancement because
his involvement did not rise to the level of a manager or
supervisor.
The Sentencing Guidelines do not directly define the terms
organizer, leader, manager, or supervisor. The Application
Notes, however, provide a list of factors for courts to use “[i]n
distinguishing a leadership and organizational role from one
of mere management or supervision.” Id. § 3B1.1 cmt. n.4.
Those factors include the exercise of decision making author-
ity, the nature of the defendant’s participation, the recruitment
of accomplices, the share of the fruits of the crime, the degree
of participation in planning or organizing, the nature and
scope of the crime, and the degree of control or authority
exercised over others. Id. While those factors were clearly
meant to draw contrasts between the categories in subsections
(a) and (b), they have also been used in determining whether
§ 3B1.1 applies at all. See United States v. Bennett, 708 F.3d 879,
891 (7th Cir. 2013) (collecting cases). In United State v. Figueroa,
however, we found that the factors may be unhelpful in
determining whether the three-level manager/supervisor
enhancement applied. 682 F.3d 694, 697 (7th Cir. 2012) (“If a
judge … doesn’t know what a ‘manager’ or ‘supervisor’ is,
Application Note 4 isn’t going to help him—especially since
it’s about organizers and leaders and not middle managers and
low-level supervisors.”).
As a result of these differing views regarding the helpful-
ness and applicability of the Note 4 factors, we have shifted
No. 15-3474 7
our focus to a more practical analysis and explained that “a
manager or supervisor should be straightforwardly under-
stood as simply someone who helps manage or supervise a
criminal scheme.” United States v. Grigsby, 692 F.3d 778, 790
(7th Cir. 2012) (citing Figueroa, 682 F.3d at 697-98). Recently, we
affirmed that the primary goal in applying § 3B1.1 should be to
make a “commonsense judgment about the defendant’s
relative culpability given his status in the criminal hierarchy.”
United States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015)
(quoting United States v. Weaver, 716 F.3d 439, 443 (7th Cir.
2013)).
That does not mean, however, that the factors are to be
disregarded completely. Indeed, the district court found them
helpful to its analysis in this case. “To the extent those factors
help to straightforwardly identify whether a defendant helps
manage or supervise a criminal scheme, courts may continue
to consider them.” Weaver, 716 F.3d at 443 (internal quotation
marks omitted). Still, we must bear in mind that none of the
factors, individually, is a prerequisite to the application of a
§ 3B1.1 enhancement. Id.; see also Bennett, 708 F.3d at 891
(explaining that “slavish adherence to [the factors] is unneces-
sary: the ultimate question is what relative role the defendant
played”) (internal quotation marks and citation omitted).
With that as the operative framework, we find no error in
the district court’s application of the three-level enhancement.
The facts the court cited at the sentencing hearing support the
“straightforward” conclusion that House “help[ed] manage or
supervise the criminal scheme.” Weaver, 716 F.3d at 443. House
used his own business as the cover for obtaining the loans and
was instrumental in the design of the overall scheme. He
8 No. 15-3474
provided the necessary (albeit, falsified) vehicle information
used to secure the loans. He was also integral in the distribu-
tion of proceeds to the scheme’s participants, including the
borrowers, and he retained a significantly greater amount
of those funds than anyone else involved. Given that the
court was tasked with making a “commonsense judgment
about [House’s] relative culpability,” there was no error in its
determination that House had a managerial or supervisory
role. See Dade, 787 F.3d at 1167.
House’s main contention on appeal is that without an
explicit finding that he exercised direct control or authority
over another participant, the § 3B1.1 enhancement cannot
apply. To support that argument, he cites a number of our
opinions that have suggested the enhancement requires such
a finding. See United States v. Gracia, 272 F.3d 866, 877 (7th Cir.
2001) (“All factors need not be present, but the defendant must
have ‘exercised some control over others involved in the
offense.’”) (quoting United States v. Pagan, 196 F.3d 884, 892
(7th Cir. 2000)); see also United States v. Fones, 51 F.3d 663, 670
(7th Cir. 1995) (holding that the enhancement did not apply
where the district court found defendant did not have control
over any other participants).
In Dade, however, we clarified that application of § 3B1.1 is
not limited in that way, and that control is simply one measure.
787 F.3d at 1167. “In addition to exercising control, a defendant
also fits into one of § 3B1.1's aggravating roles if he was
responsible for organizing others for the purpose of carrying
out the crime.” Id. (internal quotation marks and citations
omitted). House’s role in devising the plan, using his business
as the front, providing the necessary vehicle information,
No. 15-3474 9
coordinating with his co-conspirators and the borrowers, and
receiving and distributing the funds meets that standard. All
of those actions required organizational efforts sufficient to
satisfy § 3B1.1(b)'s threshold.
III. CONCLUSION
For the foregoing reasons, the district court’s sentence is
AFFIRMED.