United States v. Blaylock, Trenise ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRENISE BLAYLOCK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-CR-147—Charles N. Clevert, Jr., Judge.
____________
ARGUED MARCH 29, 2005—DECIDED JUNE 28, 2005
____________
Before CUDAHY, WOOD, and SYKES, Circuit Judges.
CUDAHY, Circuit Judge. Trenise Blaylock pleaded guilty
to armed bank robbery and related offenses. At sentencing
she stipulated to all upward adjustments under the guide-
lines save one: that she was an organizer or leader of a
criminal activity involving at least five participants. On
appeal she contends for the first time that she did not have
sufficient control over four other participants to warrant
that adjustment. Also for the first time, Blaylock invokes
United States v. Booker, 125 S. Ct. 738 (2005). Although we
find Blaylock’s arguments regarding the adjustment for her
2 No. 03-1549
leadership role to be meritless, we remand for further pro-
ceedings under the procedure articulated in United States
v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).
Blaylock planned the robbery of Milwaukee’s Guardian
Credit Union, her former employer, and personally re-
cruited three accomplices to help her. Her first recruit was
her cousin, Lakesha Bruce. Blaylock then enlisted Omar
Nelums and Weylin Shurn and tasked them with getting
guns and stealing a getaway car. Blaylock was the one who
chose the date of the robbery, April 11, 2002, because she
knew that a shipment of $400,000 was due to arrive that
day. She also drew a map of the credit union and parking
lot and described details of the facility and its employees.
The plan was a failure. Blaylock, Bruce, Nelums, and
Shurn all went to the bank at closing time and waited out-
side in the stolen car. When two of the tellers made their
exit, Nelums and Shurn tried to grab them in the parking
lot. One teller ran with Shurn in pursuit, while Nelums
forced the other at gunpoint to the credit union’s side door.
Afraid for the teller’s life, the manager let Nelums enter;
when he got inside, Nelums shot the security cameras with
his gun. But the bank employees told him that they could
not open the drawers where he thought he would find the
$400,000, so he grabbed $5,300 from another drawer and
ran away. As he fled, a red dye pack in the loot exploded in
his face. Nelums jumped into the getaway car with Blaylock
and Bruce, and the three sped away. Meanwhile, Shurn had
caught the other teller but let her go and jumped in the
getaway car as it came by.
With Nelums covered in red dye and the others overcome
by fumes, the fearsome foursome needed a place to clean up
and regroup. As they neared the home of Jermaine Shurn,
Weylin’s brother, the four abandoned the getaway car and
walked to the house. Jermaine’s wife took them to the
basement to wash up, and Jermaine disposed of Nelums’
No. 03-1549 3
clothes and other signs of their presence. Weylin Shurn
called another brother, Terrecho Shurn, to drive them
home. Terrecho hid Nelums and Weylin Shurn in the back
of his car, while Blaylock and Bruce rode in the front seat
since they had stayed in the getaway car and would not be
recognized. According to the district court’s findings of fact,
Jermaine, Jermaine’s wife, and Terrecho all knew about the
robbery plot beforehand.
Ultimately, Blaylock pleaded guilty to armed bank
robbery, 18 U.S.C. § 2113(a), (d); conspiracy to commit the
robbery, id. §§ 371, 2113(a), (d); and using and carrying a
firearm during a crime of violence, id. § 924(c). At sentenc-
ing Blaylock objected to the four-level increase under
U.S.S.G. § 3B1.1(a) for organizing or leading a criminal
activity with five or more participants. The court denied her
objection. Nonetheless, it granted a downward departure for
substantial assistance in the prosecution of her
codefendants, see U.S.S.G. § 5K1.1, effectively lowering her
total offense level for the robbery and conspiracy counts
from 25 to 22. Using that offense level and Blaylock’s
Category I criminal history as a guide, the court sentenced
her to concurrent sentences of 41 months on those counts,
the low end of the departure “range” and well below the ac-
tual range of 57 to 71 months. The court imposed a con-
secutive sentence of 120 months on the § 924(c) conviction,
the mandatory minimum since the gun was fired. See 18
U.S.C. § 924(c)(1)(A)(iii).
Section 3B1.1(a) provides for a four-level increase if the
defendant was “an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). In determining the
defendant’s role, the sentencing court must assess all “rele-
vant conduct” under U.S.S.G. § 1B1.3, not just the elements
of the offense charged. U.S.S.G. § 3B1.1(a), intro. cmt. In
the case of joint criminal activity, relevant conduct includes
“all reasonably foreseeable acts and omissions of others in
4 No. 03-1549
furtherance of the jointly undertaken criminal activity . . .
that occurred during the commission of the offense of
conviction . . . or in the course of attempting to avoid
detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1), (a)(1)(B). Whether the defendant is a leader
or organizer of a criminal activity involving five or more
people requires a finding of fact that we review for clear
error. United States v. Reneslacis, 349 F.3d 412, 416 (7th
Cir. 2003). That standard has not changed after Booker. See
United States v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005)
(explaining that the standard of review for denial of a
downward adjustment under U.S.S.G. § 3B1.2 is still clear
error after Booker); United States v. Turner, 400 F.3d 491,
500 (7th Cir. 2005) (reviewing a sentencing court’s factual
findings for clear error after Booker).
As she did in the district court, Blaylock insists that she
was one of only four participants, not five or more. Accord-
ing to Blaylock, the district court should not have counted
Terrecho Shurn as a participant even though he helped her
and Bruce, Nelums and Weylin escape. A “participant” is
someone “who is criminally responsible for the commission
of the offense, but need not have been convicted.” U.S.S.G.
§ 3B1.1, cmt. n.1. What matters is that he knowingly aided
some part of the criminal enterprise. United States v. Hall,
101 F.3d 1174, 1178 (7th Cir. 1996); United States v.
Michalek, 54 F.3d 325, 333-34 (7th Cir. 1995). Blayock rea-
sons that Terrecho was not a participant since, in her view,
the robbery was over as soon as the foursome reached
Jermaine Shurn’s house, and whether she “accepted a ride
from Terrecho Shurn, walked home, or called a cab, was
immaterial.”
This contention ignores much of the record. Terrecho’s
effort to hide Weylin and Nelums made the ride part of the
getaway, not a favor for family and friends. As the district
court explained and as Blaylock admitted at sentencing,
Nelums was covered in red dye and the others overcome by
No. 03-1549 5
fumes when they arrived at the Shurns’ house. Without a
place to clean up and regroup, their flight certainly would
have been more obvious. And the ride they received from
Terrecho put them further from the stolen getaway car.
Indeed, the need to abandon the stolen car was foreseeable
and supports the inference that all along they planned a
separate leg to their getaway involving the Shurns.
Moreover, in adopting the factual statements in the pre-
sentence report, the district court also found that Jermaine
and his wife were participants, and nowhere in her opening
brief does Blaylock challenge that finding as clearly errone-
ous. Blaylock instead accuses the government of misrepre-
senting the record in counting Jermaine and his wife as
participants, but it is Blaylock herself who misreads the
record. The presentence report identifies Jermaine and his
wife as participants and since Blaylock waited until her
reply brief to contest that finding, she waived the argument.
See United States v. Harris, 394 F.3d 543, 559 (7th Cir.
2005) (arguments not raised in opening brief are waived);
United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir.
2004) (same). So whether the fifth participant was Terrecho
or another one of the Shurns, we have no doubt that there
were at least five participants in this criminal enterprise.
That takes us to Blaylock’s second point. She contends,
citing United States v. Guyton, 36 F.3d 655, 662 (7th Cir.
1994), that § 3B1.1(a) requires not only that she have been
a leader or organizer in a criminal enterprise with five or
more participants, but also that she have exerted “con-
trol”—whether direct or indirect—over at least four other
participants besides herself. Although Blaylock concedes
she exercised control over three participants, she insists
that there was no evidence that she ever exerted any con-
trol over a fourth participant. Blaylock explains that she
never even met Terrecho before getting into his car, and as
before she says nothing about Jermaine and his wife.
Blaylock’s objection at sentencing, however, was based only
6 No. 03-1549
on the number of participants, so this “control” argument
was not preserved for appeal and is reviewed for plain
error. See United States v. Kamoga, 177 F.3d 617, 620-22 &
n.5 (7th Cir. 1999) (arguments raised for first time on
appeal are reviewed for plain error).
In Guyton we vacated the sentence of a drug conspirator
responsible for the distribution of over five kilograms of
crack cocaine because the district court increased his of-
fense level four levels when there was no evidence of control
over at least four other members of the conspiracy. Guyton,
36 F.3d at 661-62. Guyton had personally recruited two
other conspirators, which showed control— whether direct
or indirect—over those two co-conspirators, but there was
no evidence of control over two more. Id. at 662. The record
showed he fronted drugs to at least four members of the
conspiracy, but we reasoned that fronting drugs without
evidence of actual control was not enough. Id.Guyton would thus appear to require a formalistic
showing of control over at least four participants, and that
is how we stated the rule in several other cases (sometimes
in dicta). E.g., United States v. Richards, 198 F.3d 1029,
1033-34 (7th Cir. 2000); United States v. Zaragoza, 123 F.3d
472, 483 (7th Cir. 1997); United States v. Magana, 118 F.3d
1173, 1203 (7th Cir. 1997); United States v. Barnes, 117
F.3d 328, 337 (7th Cir. 1997); United States v. Hall, 109
F.3d 1227, 1234-35 (7th Cir. 1997); United States v. Salinas,
62 F.3d 855, 862 (7th Cir. 1995); United States v. Carson, 9
F.3d 576, 584 (7th Cir. 1993); United States v. Schweihs,
971 F.2d 1302, 1318 (7th Cir. 1992); United States v.
McGuire, 957 F.2d 310, 316-17 & n.4 (7th Cir. 1992). These
cases reiterate a test that in McGuire, 957 F.2d at 317 n.4,
we imported from United States v. Reid, 911 F.2d 1456,
1464-65 & n.8 (10th Cir. 1990). We noted in McGuire:
The court in Reid stated . . . that a defendant receiving
a “leader or organizer” enhancement under § 3B1.1(a)
No. 03-1549 7
must have some control, direct or indirect, over the five
participants. This makes sense: to lead an organization
you must control its members.
McGuire, 957 F.2d at 317 n.4. Our observation was dicta,
because McGuire was a case about § 3B1.1(b), but we soon
applied it to the four-level adjustment. Schweihs, 971 F.2d
at 1318. The Tenth Circuit, however, has since reconsidered
and rejected its requirement of control over four partici-
pants, reasoning that a 1993 amendment to Application
Note 2 clarifies that control over a single participant is all
that is required.1 United States v. Cruz Camacho, 137 F.3d
1220, 1224 n.3 (10th Cir. 1998) (“In light of this substantive
change to the guidelines, we believe our language in Reid,
which was proper in regards to the guidelines in place at
that time, is no longer good law.”). Meanwhile, the Fifth
Circuit also considered and expressly rejected McGuire and
Reid, likewise reasoning that the 1993 amendment clarified
that control was necessary over only one person. United
States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994). Indeed, to
the extent that we still cling to the formalistic requirement,
we are virtually alone. Cf. United States v. Gaskin, 364 F.3d
438, 466-67 (2d Cir. 2004) (control over one or more partici-
pants is necessary for § 3B1.1(a) to apply); United States v.
Eis, 322 F.3d 1023, 1025 (8th Cir. 2003) (per curiam)
(same); United States v. Owusu, 199 F.3d 329, 345-47 (6th
Cir. 2000) (same); Cruz Camacho, 137 F.3d at 1224 n.3
1
The 1993 amendment added what is now Application Note 2:
To qualify for an adjustment under this section, the defendant
must have been the organizer, leader, manager, or supervisor
of one or more other participants. An upward departure may
be warranted, however, in the case of a defendant who did not
organize, lead, manage, or supervise another participant, but
who nevertheless exercised management responsibility over
the property, assets, or activities of a criminal organization.
U.S.S.G. App. C, amend. 500 (effective Nov. 1, 1993).
8 No. 03-1549
(same); United States v. Harris, 39 F.3d 1262, 1270-71 (4th
Cir. 1994) (same); Okoli, 20 F.3d at 616 (same); United
States v. Barnes, 993 F.2d 680, 684-86 (9th Cir. 1993)
(same). And even our own cases demonstrate a move away
from the rigid approach. See United States v. Hardamon,
188 F.3d 843, 851-52 (7th Cir. 1999) (control over at least
four participants is not required); Kamoga, 177 F.3d at 620-
22 (same); see also United States v. Hanhardt, 361 F.3d 382,
393-94 (7th Cir. 2004) (explaining that a defendant must
have organized or directed another participant for
§ 3B1.1(a) to apply), vacated and remanded for further
proceedings sub nom. Altobello v. United States, 125 S. Ct.
994 (2005); United States v. Mijangos, 240 F.3d 601, 604-05
(7th Cir. 2001) (same). We thus question whether we should
have perpetuated our own adherence to Reid after the 1993
amendment to the guidelines made clear that “control” over
only one person is necessary. See Cruz Camacho, 137 F.3d
at 1224 n.3.
Regardless, we already rejected an argument indistin-
guishable from Blaylock’s in United States v. Kamoga—al-
though Blaylock inexplicably failed to bring that case to our
attention and attempt to distinguish it. Robert Kamoga was
convicted of bank fraud and his offense level increased by
four levels because he was the leader of a scheme to cash
worthless checks and distribute the proceeds among his co-
conspirators. Kamoga, 177 F.3d at 618-20. Luring them
with the promise of “fast money,” Kamoga first recruited
two middlemen, Newton and Jones, and directed them to
enlist “someone else” to deposit counterfeit checks from
Kamoga. Id. at 619. Newton and Jones signed up Bledsoe,
and Bledsoe recruited Vinson and Strickland. Id. Then
Kamoga gave Newton two fraudulent checks, which Newton
passed to Bledsoe. Id. Bledsoe made the checks payable to
S & S Enterprises (owned by Vinson and Strickland). Id.The checks found their way to Strickland, who opened a
new account for S & S, where he deposited them, withdraw-
No. 03-1549 9
ing the proceeds. Id. Strickland, however, was arrested, and
Kamoga’s plan unraveled. Id. Kamoga argued that the four-
level adjustment was unwarranted because there was no
evidence that he controlled anyone but Newton and Jones,
or that he even knew or could reasonably have foreseen that
there were at least four other participants in the criminal
enterprise. Id. at 620-21. Rejecting his arguments, we held
that—Guyton notwithstanding—we do not mechanically
require the defendant to exercise “control” over four other
participants in order for the four-level adjustment to apply.
Kamoga, 177 F.3d at 620-22 & n.4; see also Hardamon, 188
F.3d at 851-52 (citing Kamoga). All that is required is that
the defendant provide leadership and organization for a
criminal enterprise comprised of five or more persons and
actually control at least one of the participants. Hanhardt,
361 F.3d at 393-94; Mijangos, 240 F.3d at 604-05. And the
defendant’s leadership role can be demonstrated by any of
seven factors. U.S.S.G. § 3B1.1, cmt. n.4 (“Factors the court
should consider include the exercise of decision making
authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree
of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others.”). These factors
in mind, the dispositive question is relative responsibility
for the crime—not “control” over each of the other partici-
pants as such. Kamoga, 177 F.3d at 621; see also
Hardamon, 188 F.3d at 851-52. Therefore, it is enough that
the other participants act “in furtherance” of the defen-
dant’s plan; to hold otherwise would permit “masterminds”
to escape responsibility by delegating duties. Kamoga, 177
F.3d at 621-22. Here, Blaylock was just the type of master-
mind we envisioned in Kamoga. She was the impetus
behind the robbery, had the inside knowledge, and devised
the plan. She also recruited three participants who in turn
recruited all of the remaining participants. And because
10 No. 03-1549
Terrecho was a part of the criminal enterprise that Blaylock
masterminded, it is irrelevant whether she had ever met
him before getting into his car. Thus, the record supports
the adjustment.
All that is left is Booker, 125 S. Ct. 738. Because Blaylock
raises her Booker argument for the first time on appeal, we
review it under the plain-error standard articulated in
Paladino, 401 F.3d at 481-84. As the government concedes,
a limited remand under Paladino is required here because
there is no way to be certain whether the sentencing judge
would have given a shorter sentence under the guidelines
had he known they were advisory. See id. (explaining that
remand is appropriate when we are in doubt about whether
the judge would have imposed a lighter sentence under an
advisory regime); United States v. Lee, 399 F.3d 864, 866
(7th Cir. 2005) (same); see also United States v. Woodard,
408 F.3d 396, 399 (7th Cir. 2005) (remanding under
Paladino where the district court erred by applying the
guidelines as if they were mandatory, although there was
no Sixth Amendment violation); United States v. Castillo,
406 F.3d 806, 823-24 (7th Cir. 2005) (same); United States
v. White, 406 F.3d 827, 834-37 (7th Cir. 2005) (same). Thus,
although the district court properly calculated Blaylock’s
sentence under the formerly mandatory regime, we order a
LIMITED REMAND, while retaining jurisdiction, so the
district court may consider whether it would impose a
different sentence under the now-advisory guidelines.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-05