United States v. Theresa Alldredge ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2076
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HERESA A LLDREDGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-CR-141-S—Barbara B. Crabb, Chief Judge.
A RGUED D ECEMBER 8, 2008—D ECIDED D ECEMBER 29, 2008
Before E ASTERBROOK, Chief Judge, and B AUER and SYKES,
Circuit Judges.
E ASTERBROOK, Chief Judge. Theresa Alldredge pleaded
guilty to distributing counterfeit currency, in violation
of 18 U.S.C. §472, and has been sentenced to 15 months’
imprisonment. She contends that the sentence is too
high because, when applying the Sentencing Guidelines,
the district court added two levels after finding that part
of the offense was committed outside the United States.
U.S.S.G. §2B5.1(b)(5).
Alldredge received the phony bills in the mail and
passed them knowing that they were not genuine, intend-
2 No. 08-2076
ing to deceive the people who gave her goods and services.
None of her conduct was “committed outside the
United States”, as §2B5.1(b)(5) requires for an enhance-
ment. But we know from U.S.S.G. §1B1.3(a) that the
application of specific offense characteristics depends
not only on the elements of the offense but also on
relevant conduct—which includes “all reasonably foresee-
able acts and omissions of others in furtherance of . . .
jointly undertaken criminal activity[] that occurred
during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense”.
U.S.S.G. §1B1.3(a)(1)(B). The fake currency was mailed to
Wisconsin from Canada, at the behest of a citizen of
Nigeria. The district court concluded that this makes
§2B5.1(b)(5) applicable.
In response to a mass email originating in Nigeria,
Alldredge agreed to forge some checks. She sent
approximately 40 to Michael Agbolade in Nigeria; he
promised to pay $100 apiece. But the “payment,” when it
arrived, was counterfeit (and only $3,000 rather than the
promised $4,000). Agbolade had declared to Alldredge
his willingness to cheat and deceive, and apparently he
did not see any reason to keep his promise to her either,
for she was not in a position to file suit or enforce the
promise in any other way, or even to withhold repeat
business. Alldredge recognized that the bills were not
genuine but decided to spend them anyway. After some
initial successes, she was caught when she tried to pay
$1,100 in property taxes and traffic fines with the ersatz
money.
No. 08-2076 3
The scheme in which Alldredge participated was inter-
national in scope. Had she been charged with forging
checks for Agbolade, the international aspect of the
crime would have been relevant conduct under §1B1.3. But
she was not charged with forgery or any other offense
related to the checks. The “offense of conviction” is passing
counterfeit currency.
Section 1B1.3 reflects the fact that the Sentencing Guide-
lines implement a charge-offense system rather than a real-
offense system. See, e.g., United States v. White, 888
F.2d 490 (7th Cir. 1989); United States v. Talbott, 78 F.3d
1183 (7th Cir. 1996). See also Stephen Breyer, The Federal
Sentencing Guidelines and the Key Compromises Upon Which
They Rest, 17 Hofstra L. Rev. 1, 8–12, 25–28 (1988). Adjust-
ments such as §2B5.1(b)(5) introduce some real-offense
ingredients into the system, but only when these ingredi-
ents are foreseeable parts of a scheme or plan that includes
the offense of conviction. Alldredge schemed with
Agbolade to utter forged checks, but she did not agree
with him to engage in international counterfeiting. To
the contrary, she was a victim rather than a beneficiary of
Agbolade’s counterfeiting, which she did not anticipate.
White, one of this court’s first encounters with the
Sentencing Guidelines, stressed the importance of the
limits on the scope of relevant conduct. 888 F.2d at 496–98,
500–01. These limits remain important after United States
v. Booker, 543 U.S. 220 (2005). A judge must correctly
understand what the Guidelines recommend. See Gall v.
United States, 128 S. Ct. 586, 596 (2007) (“a district court
should begin all sentencing proceedings by correctly
4 No. 08-2076
calculating the applicable Guidelines range”). The district
court did not find that Alldredge’s “offense of conviction”
had an international feature or that Alldredge agreed
with Agbolade to accept counterfeit rather than real
money for her work as a check forger. She is entitled to be
sentenced without the two levels assessed under
§2B5.1(b)(5).
After getting the Guidelines right, the district judge
possesses discretion to take the international aspects of
Alldredge’s conduct (including her work forging checks
for a Nigerian employer) into account as appropriate
under 18 U.S.C. §3553(a). The choice between a charge-
offense approach and a real-offense approach was made
by the Sentencing Commission rather than Congress;
§3553(a) is agnostic on this question. Kimbrough v. United
States, 128 S. Ct. 558 (2007), holds that a district judge
may disagree with the Sentencing Commission (after
first being sure to understand what the Commission has
recommended), as long as the court observes all applicable
statutes. Perhaps the process of reconsideration on
remand will lead to the same sentence; whether it does is
a question for the district judge rather than the court of
appeals.
R EVERSED AND R EMANDED
12-29-08