United States v. Mijangos, Nelson O. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3104
United States of America,
Plaintiff-Appellee,
v.
Nelson O. Mijangos,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:00CR010-001--John C. Shabaz, Chief Judge.
Argued January 30, 2001--Decided February 14, 2001
Before Flaum, Chief Judge, and Ripple and Rovner,
Circuit Judges.
Flaum, Chief Judge. Nelson Mijangos pleaded
guilty to and was convicted of transporting
counterfeit securities in violation of 18 U.S.C.
sec. 2314 and 18 U.S.C. sec. 2, and was sentenced
to 46 months imprisonment. Mijangos now appeals,
claiming that the district court erred when it
applied a four-level upward adjustment under
U.S.S.G. sec. 3B1.1(a) because he was a "leader"
or "organizer" of the check-cashing scheme. For
the reasons stated herein, we affirm.
I. BACKGROUND
Mijangos was a member of a criminal enterprise
that recruited illegal immigrants to cash
counterfeit checks in various states, including
Wisconsin. Mijangos, who lived in Southern
California and used his home as his base of
operations, dispatched teams of illegal
immigrants, each headed by a group leader,
throughout the United States to cash counterfeit
corporate checks. One such team was arrested on
January 29, 1999 in Madison, Wisconsin. On that
day, Robinson Valencia, Gabriel Lopez, Marvin
Rodriguez, and Pablo Guerrero were arrested
trying to pass counterfeit "Johnson Controls
Dividend" checks to a drive-through teller at the
Firstar Bank in Madison. During a search of the
men’s car, the police discovered a receipt for a
nearby hotel room. The police went to the hotel,
obtained consent to search the room,/1 and found
false identification documents, almost $5000 in
cash, and ten envelopes containing counterfeit
"Johnson Controls Dividend" checks with a face
value of more than $40,000. Also present in the
room were seven persons, ostensibly involved in
the check-cashing scheme, each of whom was
arrested and ultimately prosecuted or pleaded
guilty.
Four of the co-conspirators, including Valencia
(one of the group leaders), identified Mijangos
to a federal agent as the source of the
counterfeit checks. Valencia told the agent that
Mijangos provided false identification cards and
checks to Valencia’s group and then directed them
to travel to Alabama, Rhode Island, and Wisconsin
to cash the checks on certain days at grocery
stores, retail stores, check-cashing
establishments, pawn shops, and banks. Valencia
also told the agent that the person cashing the
counterfeit check received fifty percent of the
face value of the check and then gave the
remaining amount to his group leader. The group
leader then took his share and sent the rest to
Mijangos. According to phone records of some of
the scheme’s participants, Mijangos was in
frequent contact with the groups via telephone.
On February 2, 2000, a federal grand jury
returned a three-count indictment against
Mijangos. On May 25, 2000, Mijangos pleaded
guilty to Count III--interstate transportation of
counterfeit securities in violation of 18 U.S.C.
sec. 2314 and 18 U.S.C. sec. 2. The Probation
Office prepared a Presentence Report ("PSR"),
which stated that Mijangos had provided false
identification and counterfeit checks to his
group leaders, and also instructed them as to the
locations and times to cash the checks. The PSR
recommended that Mijangos receive a four-level
upward adjustment under U.S.S.G. sec. 3B1.1 for
his role as an organizer or leader of the scheme.
Mijangos did not object to this recommendation.
Based on the recommendations contained in the
PSR, the district court on August 9, 2000
sentenced Mijangos to 46 months imprisonment, the
upper limit of the sentencing range. In imposing
this sentence, the district court noted the
length, extent, and severity of Mijangos’s
involvement in "this far-flung, almost nationwide
scheme." The court went on to state that,
considering "the numerous areas in which the
defendant was engaged in this serious criminal
and fraudulent conduct, . . . [a] sentence at the
top of the guideline range is necessary to hold
the defendant accountable for his credible (sic)
conduct."
II. DISCUSSION
Before we can decide the merits of Mijangos’s
appeal, we must first determine whether or not we
are able to reach those merits. The government
presents two arguments as to why we may not.
Citing United States v. Perez, 43 F.3d 1131,
1135-36 (7th Cir. 1994), the government first
argues that Mijangos waived any appeal of his
sentence because he failed to object to the
recommended adjustment contained in the PSR, and
never objected when the court imposed its
sentence. We disagree. Such a failure to object,
in this instance, involves forfeiture and not
waiver. Although waiver and forfeiture are
related doctrines, waiver occurs when a defendant
intentionally relinquishes or abandons a known
right, whereas forfeiture occurs when a defendant
fails to timely assert his rights. See United
States v. Harris, 230 F.3d 1054, 1058 (7th Cir.
2000); United States v. Staples, 202 F.3d 992,
995 (7th Cir. 2000); Perez, 43 F.3d at 1135.
Forfeiture of a right does not extinguish the
right to raise the issue on appeal. See Harris,
230 F.3d at 1058. In the case of forfeiture--as
here--we apply a plain error standard in
reviewing the district court’s decision to assess
an upward adjustment under sec. 3B1.1. See United
States v. Haehle, 227 F.3d 857, 861 (7th Cir.
2000).
Additionally, the government contends that this
court lacks jurisdiction to consider Mijangos’s
appeal because the district court sentenced him
within the applicable guideline range. See United
States v. Hardy, 101 F.3d 1210, 1212 (7th Cir.
1996). This court’s jurisdiction to review
sentencing determinations is limited to those
grounds enumerated in 18 U.S.C. sec. 3742(a),/2
see United States v. Coe, 220 F.3d 573, 582 (7th
Cir. 2000), and Mijangos has not clearly
specified the jurisdictional basis for his
appeal. As pointed out by the government, this
court will not review a sentence imposed within
the guideline range "[a]bsent an error of law or
misapplication of the guidelines," United States
v. Solis, 923 F.2d 548, 551 (7th Cir. 1991), and
Mijangos did not articulate any legal error. Yet,
giving Mijangos’s brief a liberal construction,
we read Mijangos to be asserting a challenge to
a sentence adjustment based on unsupported facts.
In his initial brief, Mijangos claims that if the
district court had not concluded that defendant
was "the" leader rather than "a" leader, "the
court would have had a basis to sentence Mijangos
at less than the high end of the sentencing
range." Mijangos clarifies this argument in his
reply brief, suggesting that his appeal is
reviewable under sec. 3742 (a)(1) because the
district court violated the law when it sentenced
him based on "unfounded facts." We have stated
previously that this sort of contention is
sufficient to confer jurisdiction. See United
States v. Ross, 905 F.2d 1050, 1054 n.4 (7th Cir.
1990) (stating that appellate review is preserved
under sec. 3742(a)(1) where the defendant
demonstrates grave doubts as to the veracity of
the information and that the court relied on that
false information in determining the sentence);
see also United States v. Miller, 891 F.2d 1265,
1270 (7th Cir. 1989) (finding that this court has
jurisdiction under sec. 3742(a)(2) where
defendant argues that the district court’s denial
of a downward adjustment resulted from an
incorrect application of the Guidelines). Thus,
we will construe Mijangos’s argument as an attack
on the factual support underlying the district
court’s decision to adjust upward Mijangos’s
sentence by four levels.
Proceeding to the merits, Mijangos’s claim is
that the district court erred when it increased
his total offense level four points for being a
"leader" under U.S.S.G. sec. 3B1.1 based on
"unfounded facts." The applicability of sec.
3B1.1 is a question of fact that this court
reviews for clear error. United States v. Vivit,
214 F.3d 908, 921 (7th Cir. 2000). Guideline sec.
3B1.1(a) permits a four-level adjustment "[i]f
the defendant was an organizer or leader of a
criminal activity that involved five or more
participants or was otherwise extensive." This
means that the defendant "may simply have
organized or in some way directed" another member
of the conspiracy. United States v. Mustread, 42
F.3d 1097, 1104 (7th Cir. 1994). We have held
that an upward adjustment under sec. 3B1.1 is
warranted for each leader in the conspiracy, see
United States v. McClinton, 135 F.3d 1178, 1191
(7th Cir. 1998); United States v. Miller, 962
F.2d 739, 745 (7th Cir. 1992), and the Sentencing
Guidelines recognize that more than one person
may qualify as a leader or organizer, see
U.S.S.G. sec. 3B1.1(a), commentary at 4; see also
United States v. Golden, 954 F.2d 1413, 1419 (7th
Cir. 1992); United States v. Ramos, 932 F.2d 611,
619 (7th Cir. 1991). Furthermore, an upward
adjustment under sec. 3B1.1 applies to those
defendants whose "relative responsibility" for
the crime exceeds that of their cohorts. United
States v. Morgano, 39 F.3d 1358, 1379 (7th Cir.
1994). Such is the case here. Indeed, Mijangos
admits that "[t]here is no dispute on this record
that [he] was a leader," and does not dispute
that there were at least five participants in his
scheme. Thus he is eligible for a sec. 3B1.1
adjustment regardless of others’ roles in the
crime.
Moreover, to determine whether a defendant is
an organizer or a leader, this court considers
"the defendant’s exercise of decision-making
authority, the nature of his participation in
committing the crime, his recruitment of
accomplices, his claimed right to a larger share
of the criminal proceeds, the extent of his
participation in planning or organizing the
crime, the nature and scope of the illegal
activity, and the degree of control and authority
exercised over others." Vivit, 214 F.3d at 922
(quoting United States v. Sierra, 188 F.3d 798,
803-04 (7th Cir. 1999)); see also U.S.S.G. sec.
3B1.1, commentary at 4. This court weighs these
factors "in light of the Guidelines’ intent to
punish with greater severity leaders and
organizers of criminal activity." Sierra, 188
F.3d at 804.
While we note that the government offers
little, if any, factual support for its
contention that the district court properly
sentenced Mijangos as a leader, our own
independent review of the record supports the
district court’s conclusion. Specifically, the
PSR, on which the district court relied in
sentencing the appellant, discloses that Mijangos
orchestrated his scheme by recruiting group
leaders, which included Valencia and others, to
entice newly arrived illegal immigrants into
cashing counterfeit checks. Although everyone
profited from this scheme, Valencia told the
federal agent that Mijangos received the bulk of
the profits. In addition, as set forth in the
PSR, Mijangos: (1) provided false identification
and counterfeit checks to his group leaders; (2)
instructed the groups to go to various cities to
cash the checks; (3) told the group leaders to
cash the checks only on certain days and at
particular types of stores, banks and pawn shops;
(4) provided bond money when check-cashers were
arrested; and (5) frequently contacted the
leaders and other participants after they had
arrived in a state to pass the fake checks. Thus,
the record demonstrates that Mijangos played an
active role in organizing and perpetuating the
scam.
III. CONCLUSION
The evidence supports the district court’s
conclusion that Mijangos was "the leader of this
multi-state counterfeit check cashing scheme,
[who] recruited numerous others to travel and
cash checks while he collected half the
proceeds." Thus, for the foregoing reasons, we
Affirm the decision of the district court.
FOOTNOTES
/1 The scope of the consent to search was the
subject of a previous appeal. See United States
v. Melgar, 227 F.3d 1038 (7th Cir. 2000).
/2 18 U.S.C. sec. 3742(a) provides that a defendant
may appeal his sentence if it:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect
application of the sentencing guidelines; or
(3) is greater than the sentence specified in
the applicable range to the extent that the
sentence includes a greater fine or term of
imprisonment . . . than the maximum established
in the guideline range . . .; or
(4) was imposed for an offense for which there
is no sentencing guideline and is plainly
unreasonable.