United States v. Leslie Anderson ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2925
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
L ESLIE A NDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:04-cr-30111-WDS-3—William D. Stiehl, Judge.
A RGUED M AY 5, 2009—D ECIDED S EPTEMBER 3, 2009
Before R IPPLE and SYKES, Circuit Judges, and L AWRENCE,
District Judge.Œ
R IPPLE, Circuit Judge. As a result of his involvement with
a fraudulent telemarketing scheme, Leslie Anderson
was charged with wire fraud, mail fraud and conspiring to
commit an offense against the United States. After a five-
Œ
The Honorable William T. Lawrence, District Judge for the
Southern District of Indiana, is sitting by designation.
2 No. 08-2925
day trial, Mr. Anderson moved for a judgment of acquit-
tal. The district court denied the motion, and the
jury convicted Mr. Anderson on each of the twenty-
four counts charged. At his sentencing hearing,
Mr. Anderson raised a number of objections to the sen-
tencing enhancements recommended by the Government,
but the district court, with two exceptions, applied the
recommended enhancements. As a result, the court
determined Mr. Anderson’s adjusted offense level to be
42 and his criminal history category to be I. The court
departed from the recommended sentencing range,
imposing a below-guidelines sentence of 280 months’
imprisonment. Mr. Anderson now appeals. He claims
that the evidence presented at trial was insufficient to
support the jury’s verdict; he also raises a number of
challenges to his sentence. For the reasons set forth in
this opinion, we affirm the judgment of the district court.
I
BACKGROUND
A.
On May 17, 2005, Mr. Anderson was charged with
several offenses arising out of his involvement with
1492828 Ontario, Inc., a Canadian telemarketing company
doing business as First Capital Consumers Group (“First
Capital”). Specifically, Mr. Anderson was charged with
one count of conspiracy, in violation of 18 U.S.C. § 371,
five counts of mail fraud, in violation of 18 U.S.C. § 1341,
and eighteen counts of wire fraud, in violation of 18
No. 08-2925 3
U.S.C. § 1343. At Mr. Anderson’s jury trial, the Govern-
ment presented the following evidence.
1. The Creation of First Capital
Mr. Anderson, a Canadian citizen, became acquainted
with David Dalglish through Mr. Anderson’s Toronto-
based home improvement business. Dalglish helped
Mr. Anderson secure a lucrative contract with the city
of Toronto, and Mr. Anderson, in return, loaned Dalglish
a large sum of money so that Dalglish could open
up a telemarketing business with his friend, Lloyd
Prudenza. That business ultimately became known as
First Capital.
By way of background, Dalglish had worked with
Prudenza in the past. Specifically, Prudenza ran
Consumer Credit Services (“CCS”), a telemarketing
business that sold a “credit repair program” to individuals
with poor credit histories. R.196 at 82-83. After a CCS
telemarketer sold the product to a customer, a “verifier”
from Vertech, an affiliate of CCS, would contact the
customer, confirm the details of the purchase and obtain
the customer’s authorization to debit the customer’s
bank account. Id. at 83-85; R.199 at 145.
Dalglish hired Mark Lennox, a former Vertech em-
ployee, to work for First Capital. Dalglish informed Mr.
Anderson of the hire and explained that Lennox was the
“top verifier” at Vertech. R.199 at 145. He also informed
Mr. Anderson that he needed additional funds for First
Capital. In response, Mr. Anderson contributed an addi-
4 No. 08-2925
tional $20,000 to the company, this time in the form of
an equity investment.
In 2001, Lennox, Dalglish and Mr. Anderson met to
discuss First Capital’s business model. Lennox explained
to Dalglish and Mr. Anderson that First Capital would
hold itself out as a “credit recovery business” that
sold “benefits packages” to consumers. These benefits
packages included coupons, brochures, a credit-repair
guide and a “stored-value card.” The stored-value card
bore a MasterCard logo, but it was not a credit card
because it had no independent purchasing power.
Instead, before making a purchase, a user first was re-
quired to credit funds to the stored-value card. The user’s
purchasing power was limited to the amount of funds
he had credited to the card in advance of the purchase.
Lennox explained that the stored-value cards were the
most important part of First Capital’s benefits packages
because they allowed First Capital’s salespersons to tell
its customers that they would receive a MasterCard with
their benefits packages. The customers would then
assume that they would be receiving credit cards that
permitted them to make purchases that could be paid
for later, either by a single payment or by a payment plan.
According to Lennox, stored-value cards were a rela-
tively new concept in 2001. Therefore, Lennox claimed,
“if you said to somebody that it was a bank card and it
was a MasterCard, 100 percent would assume that you
were talking about a credit vehicle, [and] that this thing
had a credit limit to it. And we knew that, so this was a . . .
huge advantage.” R.196 at 93. Lennox also testified that
No. 08-2925 5
he had informed Mr. Anderson that a stored-value
MasterCard would be included in the benefits packages.
Lennox knew that Mr. Anderson would be responsible
for approving his salary and other compensation, and
he hoped that, by using the MasterCard as a “selling
point,” he could procure a large signing bonus. Id. at 92-95.
After that first meeting, Mr. Anderson wrote a letter to
the Mill Haven Penal Institution, where Prudenza was
serving a sentence for conspiracy to commit fraud, in
order to facilitate Prudenza’s early release on parole.
Prudenza testified that, as part of his application for
parole, he was required to “establish a game plan for
[his] release.” R.198 at 29. Mr. Anderson “provided [him]
with a letter of employment to fit that game plan.” Id.
Shortly after Prudenza’s release, he, Dalglish and Mr.
Anderson met at Mr. Anderson’s office. Prudenza
brought his fiancee, Lesley McCloud, to the meeting,
but she left after Mr. Anderson complained about her
presence. Later, Mr. Anderson explained to Prudenza
that “he didn’t want women around when we’re talking
about things that . . . are illegal. . . . Because they would
turn around and would rat on the situation.” Id. at 32-33.
Prudenza testified that, at the meeting, he and Mr.
Anderson discussed his incarceration and his criminal
offense; he claimed that Mr. Anderson “knew . . . what
[he had] been in jail for,” and explained that his
telemarketing experience and criminal conviction were
an “enticement to bringing [him] aboard.” R.199 at 49, 50.
Prudenza further testified that everyone at the meeting,
including Mr. Anderson, understood that they did not
6 No. 08-2925
have, and could not obtain, authorization to sell any
type of MasterCard. He noted that, at the meeting,
Mr. Anderson reviewed a sample “sales script”1 and
described the script as a “good gaff” 2 and a “good con.”
R.198 at 35, 39. In addition, Prudenza claimed that he
discussed the possibility of police intervention with
Mr. Anderson, telling him that they had to do things
“in a certain way to avoid being caught right away.” Id.
at 37-38.
Later, after First Capital had begun preliminary opera-
tions, Lennox, Dalglish, Prudenza and Mr. Anderson
met to discuss the sales scripts for telemarketers and
verifiers. Lennox testified that he went over the scripts
while Mr. Anderson was present. He testified that the
scripts were intended to deceive First Capital’s
customers by convincing them that they would receive
a credit card from a major bank in exchange for a fee.
2. First Capital’s Business Operations
First Capital hired hundreds of telemarketing sales
representatives who placed telephone calls from Toronto
1
These “sales scripts” were written sales pitches that
telemarketers used when soliciting or verifying a sale. The
scripts reviewed at the meeting were substantially similar
to those later used by First Capital.
2
Prudenza explained that a “gaff” is a scam, con or rip-off.
No. 08-2925 7
to United States residents with poor credit histories.3 The
representatives, using First Capital’s sales scripts, would
suggest that First Capital could help its customers
obtain credit cards in exchange for a fee. When a
customer accepted First Capital’s offer, a verifier would
make a second call to the customer in order to obtain
the customer’s bank account information and the cus-
tomer’s permission to make an electronic funds transfer
from the customer’s bank account. The second call was
recorded.
After receiving the customer’s authorization and
account information, the verifier would cause funds to
be transferred out of the customer’s bank account
through an automated clearing house (“ACH”). First
Capital used three ACHs during the course of its opera-
tion—ACH Direct, United Capturedyne Technologies
(“UCT”) and Check Recovery Systems (“CRS”). Mr.
Anderson helped Dalglish and Prudenza establish a
business relationship with ACH Direct. R.197 at 21-22;
R.200 at 64-65. The relationship between First Capital
and ACH Direct was short-lived, however, because
ACH Direct received a large number of complaints from
dissatisfied First Capital customers. From November 2001
through the summer of 2002, First Capital processed its
electronic transfers through UCT. Like ACH Direct, UCT
received a number of complaints and ceased providing
3
First Capital obtained the contact information for these
individuals by purchasing “leads lists” from list brokers in
the United States.
8 No. 08-2925
services for First Capital. After First Capital’s relationship
with UCT ended, First Capital’s managers and assistant
managers—including Mr. Anderson, Dalglish, Prudenza
and Lennox—met to discuss their problems with ACH
Direct and UCT and to attempt to find a new processor.4
First Capital then turned to CRS for ACH processing;
that company also received numerous complaints from
customers who had received no product, who had not
received the product they were promised or who could
not contact First Capital. R.197 at 40-42. These com-
plaints were summarized in call logs that were later sent
to First Capital.
At the height of its operations, First Capital had 250
employees. Lennox estimated that First Capital placed at
least 10,000 telemarketing calls each week, resulting in
about 500 successful sales per week. Over the course of
its operation, First Capital defrauded approximately
40,000 victims out of more than $8 million.
3. Mr. Anderson’s Role in First Capital
The Government presented evidence that Mr. Anderson
held a position of authority in First Capital. Specifically, it
introduced evidence of a September 2001 meeting at
Toronto Dominion Bank, where Mr. Anderson intro-
duced Dalglish to Gary Shaswell, the bank manager.
Together, they set up a business account for First Capital.
4
At that same meeting, Lennox distributed new sales scripts
and leads lists.
No. 08-2925 9
During that meeting, Dalglish submitted a copy of First
Capital’s articles of incorporation; Mr. Anderson’s name
was listed on the articles as a director of the company.
Dalglish also told Shaswell that Mr. Anderson was the
president of the company. Although Mr. Anderson later
claimed to have been surprised by Dalglish’s statement
and denied agreeing to serve as First Capital’s president,
he did not object to or correct any of Dalglish’s representa-
tions to Shaswell. During the meeting, Mr. Anderson
signed a number of documents which named him as a
principal of the corporation, president of First Capital
and a signatory on First Capital’s account. R.199 at 152-55;
R.200 at 34-41.
The Government also presented evidence that, in addi-
tion to being listed as president and principal, Mr. Ander-
son was considered a partner in First Capital; Mr. Ander-
son, Dalglish and Prudenza agreed that, after Mr. Ander-
son’s initial loan to the company was repaid, they would
divide First Capital’s remaining profits between them-
selves. Prudenza testified that, during one meeting, he,
Dalglish and Mr. Anderson each received a $400,000
share of First Capital’s $1.2 million profit.5
Prudenza testified that Mr. Anderson’s role in First
Capital was primarily financial, as opposed to managerial.
Mr. Anderson provided the startup funds for First Capital
5
Prudenza indicated that, by this point, Mr. Anderson’s initial
loan to First Capital had been repaid. R.198 at 59. An earlier
check, dated January 18, 2002, represented a partial repay-
ment of that loan.
10 No. 08-2925
and handled First Capital’s finances. He signed invoices
and authorized payments for leads lists and benefits
packages. R.197 at 35-39. In addition, several documents
recording wire transfers made on First Capital’s behalf
bore Mr. Anderson’s signature, although Mr. Anderson
did not recall signing the documents. R.199 at 157.
Mr. Anderson’s contributions to First Capital were not
solely financial, however. For example, Mr. Anderson
regularly met with Prudenza to discuss First Capital’s
operations, and he attended at least two managers’ meet-
ings where First Capital’s sales pitch, verification
problems and sales issues were discussed. Mr. Anderson
also admitted that he had performed work on First Capi-
tal’s offices, leased vehicles to First Capital and provided
cell phones to Dalglish, Prudenza and two others.
R.199 at 166; R.200 at 4-5. Furthermore, in August or
September 2002, Mr. Anderson was left in charge of
First Capital and oversaw all of the company’s opera-
tions while Prudenza and Dalglish were vacationing
in Italy. During that time period, Mr. Anderson
signed payroll checks and authorized wire transactions
for leads-list purchases.
The Government also introduced evidence pertaining
to whether Mr. Anderson knew of the illegal nature of
First Capital’s activities. For example, Prudenza testified
that Mr. Anderson took an active interest in First
Capital’s sales and “knew overall of what was going on”
at First Capital. R.198 at 49-51, 54. According to
Prudenza, Mr. Anderson knew that First Capital was
misleading its customers: Prudenza testified that, after
No. 08-2925 11
the sales scripts were discussed during his first meeting
with Mr. Anderson, Mr. Anderson asked, “Are Americans
that stupid?” R.198 at 37. Prudenza also stated that he
had informed Mr. Anderson of the complaints from the
ACH companies and that he specifically had informed
Mr. Anderson that First Capital had received complaints
from customers who either had not received their credit
repair packages or had not received what they had been
promised. In addition, Stephen Simpson, one of Mr.
Anderson’s employees, testified that Mr. Anderson
showed him a $400,000 check dated September 20, 2002.
According to Simpson, Mr. Anderson “kissed [the check],
put it in his pocket and he said, ‘Thank God for stupid
Americans.’ ” R.199 at 87.
B.
At the conclusion of the trial, Mr. Anderson filed a
motion for a judgment of acquittal. The district court
denied the motion. The jury found Mr. Anderson guilty
on each of the counts charged against him.
At Mr. Anderson’s sentencing hearing, the district court
determined that Mr. Anderson’s base offense level was 7
and his criminal history category was I. The court
then applied the following sentencing enhancements: A
twenty-level enhancement because the total loss
resulting from the fraud was $8,273,893.50;6 a six-level
increase because the fraud involved more than 250
6
R.183 at 31; see U.S.S.G. § 2B1.1(b)(1)(K).
12 No. 08-2925
victims; a two-level enhancement because the fraud
targeted vulnerable victims; a two-level enhancement
because a substantial part of the offense was committed
outside the United States; a three-level enhancement
based on Mr. Anderson’s status as a manager or super-
visor of the scheme;7 and a two-level enhancement for
obstruction of justice. 8 As a result, Mr. Anderson’s
adjusted offense level was 42, and the Guidelines recom-
mended a sentencing range of 360 months to life impris-
onment. The court imposed a below-guidelines sentence
of 280 months’ imprisonment.
II
DISCUSSION
Mr. Anderson appeals both his conviction and his
sentence. He first contends that the Government failed to
present sufficient evidence to prove that he possessed
the knowledge or intent necessary to be guilty of the
charged crimes. He also challenges the sentence
imposed by the district court, arguing that the court
improperly applied various sentencing enhancements
and contending that the sentence imposed by the
district court was unreasonable. We address each of
these arguments in turn.
7
U.S.S.G. § 3B1.1(b).
8
U.S.S.G. § 3C1.1.
No. 08-2925 13
A.
Mr. Anderson first challenges the sufficiency of the
evidence presented at trial, claiming that the Govern-
ment failed to prove certain essential elements of the
charged crimes. Mr. Anderson notes that, to support his
conviction for mail and wire fraud, the Government was
required to demonstrate that he knowingly participated
in a fraudulent scheme with the specific intent to deceive
or cheat the scheme’s victims. See United States v.
Radziszewski, 474 F.3d 480, 484-85 (7th Cir. 2007).
Similarly, he points out that, to support his conspiracy
conviction, the Government was required to prove that
he knew of the essential nature and scope of the charged
conspiracy and that he intended to participate in it.
See United States v. Bruun, 809 F.2d 397, 410 (7th Cir. 1987).9
Mr. Anderson contends that the evidence presented at
trial failed to establish that he possessed either the knowl-
edge or the intent necessary to be guilty of the charged
crimes. In support of this contention, he attacks the credi-
bility of Lennox and Prudenza and claims that their
testimony was not sufficiently specific to support a
finding that he knowingly and intentionally participated
in the fraudulent scheme. Mr. Anderson also claims that
9
See also United States v. Campbell, 985 F.2d 341, 344-45 (7th Cir.
1993) (noting that, to prove that a defendant was a member of
the conspiracy, “the Government must offer sufficient evidence
to demonstrate that the defendant knew of the conspiracy
and that he intended to join and associate himself with its
criminal design and purpose” (citation omitted)).
14 No. 08-2925
his own testimony demonstrates that he lacked any
criminal intent. At trial, Mr. Anderson claimed that he
never read or discussed the sales scripts, that he was
unaware that First Capital would offer stored-value cards,
and that, by virtue of his passive role in First Capital, he
was unaware of the fraudulent nature of First Capital’s
activities. He characterizes himself as a mere pawn in
Dalglish and Prudenza’s scheme, and he asserts that,
had he known that First Capital was an illegal scam, he
would have had nothing to do with it.
When reviewing a challenge to the sufficiency of the
evidence, “we will only reverse a defendant’s conviction
if, viewing all evidence in the light most favorable to the
government, no rational trier of fact could have found
the defendant guilty of the charges beyond a reasonable
doubt.” Radziszewski, 474 F.3d at 484 (citation omitted). In
raising such a challenge, Mr. Anderson faces a heavy
burden; we shall not reverse his conviction unless there
is no evidence from which a jury could have found him
guilty of the charged offenses. See United States v. Silva,
781 F.2d 106, 108 (7th Cir. 1986).
In an attempt to satisfy this burden, Mr. Anderson
contends that the jury should have disregarded the testi-
mony of Lennox and Prudenza and instead should have
credited his own version of the facts. This contention
cannot succeed. “We repeatedly have refused to ques-
tion the credibility of witnesses” when reviewing
sufficiency-of-the-evidence challenges. United States v.
Roberts, 534 F.3d 560, 569 (7th Cir. 2008). It is the province
of the jury to assess the credibility of witnesses, and
No. 08-2925 15
we shall reverse such credibility determinations “only
under exceptional circumstances, such as where it
was physically impossible for the witness to observe
that which he claims occurred, or impossible under the
laws of nature for the occurrence to have taken place at
all.” Radziszewski, 474 F.3d at 485 (citations and quotation
marks omitted). Mr. Anderson has pointed to no excep-
tional circumstances here, and the jury was therefore
entitled to credit the testimony of Lennox and Prudenza.
We believe that the evidence presented at trial was
sufficient to support the jury’s verdict. The Government
presented evidence that supports the conclusion that
Mr. Anderson knew that First Capital was engaged in
fraudulent activity. For example, Prudenza testified that
he met with Mr. Anderson on a weekly basis to discuss
First Capital’s operations. He further testified that
Mr. Anderson knew that First Capital was misleading its
customers. Also, according to Prudenza, Mr. Anderson
expressly acknowledged the illegal and fraudulent nature
of the scheme.10 The Government also presented circum-
stantial evidence that Mr. Anderson knowingly and
intentionally joined the fraudulent activity. According to
10
See R.198 at 32 (noting that Mr. Anderson “didn’t want
women around when we’re talking about doing things that . . .
are illegal”); Id. at 35 (describing the sales script as a “good
con”); see also id. at 37 (testifying that, after discussing the
sales scripts, Mr. Anderson asked “Are Americans that stu-
pid?”); R.199 at 87 (testimony of Stephen Simpson) (stating
that Mr. Anderson displayed a $400,000 check, kissed it and
said “Thank God for stupid Americans”).
16 No. 08-2925
the testimony elicited at trial, Mr. Anderson was present
at several meetings where leads lists, sales scripts and
customer complaints were discussed. In addition, Mr.
Anderson was the named president of First Capital, held
authority over First Capital’s finances, and authorized
payments for leads lists and benefits packages. Mr. Ander-
son also established First Capital’s business checking
account, worked on First Capital’s offices, leased vehicles
to the company, and provided cell phones to its man-
agers. Furthermore, Mr. Anderson managed First Capital
while Prudenza and Dalglish were absent, and he received
at least $400,000 from the conspiracy’s proceeds.
Contrary to Mr. Anderson’s assertions, this evidence
demonstrates that Mr. Anderson was more than a
mere associate of Dalglish, Prudenza and the other par-
ticipants in the scheme. Rather than simply being present
at a few meetings where illegal activities were discussed,
cf. United States v. Baker, 499 F.2d 845, 847 (7th Cir. 1974),1 1
11
In United States v. Baker, 499 F.2d 845, 849 (7th Cir. 1974), we
concluded that defendant Vela’s act of driving two individuals
to the site of a drug sale and his presence during two con-
versations where the purchase of drugs was discussed could not
support his conspiracy conviction. Significantly, we noted that,
although Vela was present during the two conversations, he
“engaged only in ‘small talk’ and did not participate in the
conversation on drug dealing.” Id. at 847. Thus, the facts of
that case differ from the facts presented here; as we have
already indicated, the testimony presented at trial demon-
strates that Mr. Anderson actively participated in the meetings
(continued...)
No. 08-2925 17
Mr. Anderson took an active role in First Capital, took
steps to advance its activities and received a one-third
share of its profits. A reasonable jury could have con-
cluded, based on this evidence, that Mr. Anderson
acted with knowledge of First Capital’s fraudulent
activity and with the specific intent to defraud First Capi-
tal’s victims. See Radziszewski, 474 F.3d at 485 (noting
that documentary evidence showed that funds from the
fraudulent scheme were deposited into an account con-
trolled by the defendant and concluding that this and
other evidence demonstrated that the defendant was a
knowing participant in the scheme).1 2 We therefore con-
clude that evidence presented at trial adequately sup-
ports Mr. Anderson’s conviction.
11
(...continued)
and conversations where First Capital’s operations were
discussed.
12
See also United States v. Silva, 781 F.2d 106, 109 (7th Cir. 1986)
(holding that the defendant’s false report that his vehicle had
been stolen, his false representation that he had driven the
vehicle on a certain date, and the fact that he insured the
vehicle for $23,000, even though he owed only $6,000, were
sufficient to demonstrate that the defendant intended to
further the conspiracy); United States v. Garcia, 562 F.2d 411, 414
(7th Cir. 1977) (concluding that a jury could infer that the
defendant participated in the conspiracy where the defendant
was found in possession of proceeds from a drug transaction
after he put a drug purchaser in contact with his brother,
who dealt drugs).
18 No. 08-2925
B.
We now turn to Mr. Anderson’s challenges to the
sentence imposed by the district court. Mr. Anderson
challenges the district court’s application of a two-level
sentencing enhancement for obstruction of justice and a
three-level enhancement based on his role in the conspir-
acy. He further contends that the sentence imposed by
the district court was unreasonable.
1. The Obstruction-Of-Justice Enhancement
Mr. Anderson asserts that he should not have received a
sentencing enhancement under U.S.S.G. § 3C1.1, which
provides for a two-level enhancement when a defendant
obstructs or attempts to obstruct the investigation, prose-
cution, or sentencing of the charged crime. Id. He main-
tains that his testimony at trial amounted to no more
than a simple denial of guilt, which, he claims, cannot
support the application of the obstruction-of-justice
enhancement.
We review the factual findings underlying the district
court’s application of the obstruction enhancement for
clear error, and we review de novo whether those
findings adequately support the enhancement. United
States v. House, 551 F.3d 694, 697 (7th Cir. 2008). As we
previously have noted, a district court may impose an
obstruction-of-justice enhancement based on its con-
clusion that a defendant committed perjury at trial.
United States v. Williams, 553 F.3d 1073, 1081 (7th Cir.),
No. 08-2925 19
cert. denied, 129 S. Ct. 2452 (2009).1 3 Thus, if a district court
finds that a defendant “gave false testimony concerning
a material matter with the willful intent to provide
false testimony, rather than as a result of confusion,
mistake, or faulty memory,” the application of an ob-
struction enhancement is warranted. United States v.
Hach, 162 F.3d 937, 949 (7th Cir. 1998) (citations and
quotation marks omitted).
Before applying the obstruction-of-justice enhance-
ment, the district court gave considerable thought to
Mr. Anderson’s objection to the enhancement and con-
ducted a review of its trial notes. The court then concluded
that although, at first, Mr. Anderson was not apprised
fully of the nature of First Capital’s activities, he never-
theless learned a great deal about First Capital, assisted
the company and agreed to serve as its president. R.183
at 14. The court further concluded that Mr. Anderson
“did know what [the] business was and became a part
of it,” and it specifically “[found] that [Mr. Anderson]
did in fact testify falsely at trial.” Id. at 15.
Given these judicial findings, we cannot accept
Mr. Anderson’s challenge to this enhancement. The
court did not predicate its application of the enhance-
ment on Mr. Anderson’s mere denial of guilt. Instead,
after comparing Mr. Anderson’s testimony with the
evidence presented by the Government, the district court
13
See U.S.S.G. § 3C1.1 cmt. n.4 (“Note 4”) (listing “committing,
suborning, or attempting to suborn perjury” as an “example[]
of the type[] of conduct to which [the obstruction] adjustment
applies”).
20 No. 08-2925
determined that Mr. Anderson testified falsely at trial.
It therefore concluded that Mr. Anderson willfully ob-
structed justice by falsely denying any knowledge of the
criminal nature of the enterprise. See, e.g., United States v.
Godinez, 110 F.3d 448, 457 (7th Cir. 1997) (concluding
that the defendant’s “denial of any knowledge that
there was a cocaine transaction going on” was “not
the same as a general denial of guilt” and rejecting the
defendant’s sentencing challenge). Given the evidence
against Mr. Anderson, we cannot say that this con-
clusion was clearly erroneous. The district court
properly identified the false testimony supporting the
enhancement and made an independent finding of
perjury; having done so, it was permitted to impose the
enhancement. See United States v. Banks-Giombetti, 245
F.3d 949, 954 (7th Cir. 2001) (concluding that the district
court did not err in applying an obstruction-of-justice
enhancement when it “credited the testimony of the
[witnesses] over [the defendant’s] and found by a pre-
ponderance of the evidence that [the defendant’s] testi-
mony was both false and material”); United States v.
Ofcky, 237 F.3d 904, 910 (7th Cir. 2001) (holding that the
district court “met all the standards required for the
[obstruction-of-justice] enhancement” when it weighed
the conflicting testimony and concluded that the
defendant committed perjury).
2. The Manager-Or-Supervisor Enhancement
Mr. Anderson also challenges the district court’s ap-
plication of a sentencing enhancement pursuant to
No. 08-2925 21
U.S.S.G. § 3B1.1(b), which authorizes a three-level en-
hancement when a defendant acted as a manager or
supervisor of a criminal activity. We review the district
court’s finding that Mr. Anderson exercised a managerial
or supervisory role in the offense for clear error. United
States v. Sainz-Preciado, 566 F.3d 708, 714 (7th Cir. 2009).
To qualify for an enhancement under section 3B1.1, a
defendant “must have been the organizer, leader, manager,
or supervisor of one or more other participants” in the
charged criminal activity.1 4 U.S.S.G. § 3B1.1 cmt. n.2. The
Guidelines do not define the terms “manager” and
“supervisor.” The commentary to section 3B1.1, however,
does set forth several factors that this court may use to
ascertain whether an individual had a supervisory role
in an offense. United States v. Howell, 527 F.3d 646, 649
(7th Cir. 2008).15 Those factors include:
(1) the exercise of decision-making authority; (2) the
nature of participation in the commission of the of-
fense; (3) the recruitment of accomplices; (4) the
claimed right to a larger share of the fruits of the crime;
14
For the purposes of that section, a “ ’participant’ is a person
who is criminally responsible for the commission of the offense,”
although the person need not have been convicted. U.S.S.G.
§ 3B1.1 cmt. n.1.
15
Although the factors enumerated in the commentary were
designed to assist courts in distinguishing leaders from man-
agers, we also have “found that they are . . . relevant in ascer-
taining whether an individual had a supervisory role at all.”
United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008) (citation
omitted).
22 No. 08-2925
(5) the degree of participation in planning and organiz-
ing the offense; (6) the nature and scope of the
illegal activity; (7) the degree of control and authority
exercised over others.
Id. (citing U.S.S.G. § 3B1.1 cmt. n.4). “No one of these
factors is considered a prerequisite to the enhancement,
and, at the same time, the factors are not necessarily
entitled to equal weight.” United States v. Wasz, 450 F.3d
720, 729 (7th Cir. 2006). Although not all of these factors
must be present, the enhancement cannot be applied
unless the defendant “ ‘exercised some control over
others involved in the commission of the offense.’ ” United
States v. Gracia, 272 F.3d 866, 877 (7th Cir. 2001) (quoting
United States v. Pagan, 196 F.3d 884, 892 (7th Cir. 1999)).
Mr. Anderson claims that the Government presented no
evidence that he exercised any influence or control over
Prudenza, Dalglish or any other participants in the con-
spiracy. We disagree. There are many facts—several of
which fit into one or more of the categories enumerated
in Note 4—that support the district court’s finding that
Mr. Anderson managed or supervised one or more par-
ticipants in the conspiracy. First, there is evidence that
Mr. Anderson exercised decision-making authority over
participants in the scheme: Lennox testified that
Mr. Anderson approved his salary and signing bonus,
R.196 at 93-95,16 and Prudenza stated that Mr. Anderson
16
This testimony supports the district court’s conclusion in
two ways: First, it demonstrates that Mr. Anderson had the
authority to decide how much compensation Lennox, a non-
(continued...)
No. 08-2925 23
16
(...continued)
partner participant in the conspiracy, would receive for his
role in the scheme. Second, it suggests that Mr. Anderson
was Lennox’s boss, rather than his equal, thus supporting the
court’s conclusion that Mr. Anderson supervised at least one
participant. See United States v. Polichemi, 219 F.3d 698, 712
(7th Cir. 2000) (“Although the court did not find this fact
explicitly, its discussion of Neal’s relationship to Edward
Russey and Larry Oesterman indicates that it found the neces-
sary supervision. Neal was president of Konex Marketing,
and Russey and Oesterman were salesmen for the company. As
such, Neal was their boss, not their equal.”).
Although Lennox was initially listed in the criminal com-
plaint, see R.1 at 1, it appears that he was granted immunity in
exchange for his cooperation. See R.196 at 23; R.197 at 61-67;
R.200 at 119. Nevertheless, the fact that Lennox was not ulti-
mately prosecuted or convicted does not preclude the finding
that he was a “participant” in the offense for the purposes
of U.S.S.G. § 3B1.1. As the commentary to that provision notes,
“[a] ‘participant’ is a person who is criminally responsible
for the commission of the offense, but need not have been con-
victed.” U.S.S.G. § 3B1.1 cmt. n.1 (emphasis added). Moreover,
we have previously accepted the argument that an individual
who testified under a grant of immunity may be considered a
“participant” in an offense. See United States v. Jackson, 95
F.3d 500, 511 (7th Cir. 1996). In Jackson, we affirmed the district
court’s denial of a reduction under U.S.S.G. § 3B1.2 (mitigating
role in the offense), which defines “participant” in accordance
with the commentary to U.S.S.G. § 3B1.1. See U.S.S.G. § 3B1.2
cmt. n.1. In that case, the Government argued that several
telemarketers other than the indicted defendants should be
considered criminally responsible “participants” in the
(continued...)
24 No. 08-2925
oversaw the whole of First Capital’s operations while he
and Dalglish were in Italy.1 7 Second, the nature of
Mr. Anderson’s participation in the offense supports the
district court’s conclusion; because Mr. Anderson con-
trolled the purse strings of First Capital, he likely
had either direct or indirect financial control over
other participants in the enterprise. Third, Mr. Anderson
claimed a one-third share of First Capital’s profits. The
evidence of Mr. Anderson’s decision-making authority
over Lennox, his control of the enterprise during Prudenza
and Dalglish’s absence, his control of First Capital’s
finances and his receipt of a large share of First Capital’s
profits supports the district court’s conclusion that
Mr. Anderson was a manager or supervisor of the crim-
16
(...continued)
scheme. Jackson, 95 F.3d at 511. Specifically, the Government
noted that “two of the . . . employees who testified were
granted immunity,” and that “the apparent nature of the fraud
from the script itself . . . strongly suggest[ed] that other
telemarketers could have been indicted and prosecuted” had
the Government sought to do so. Id. The defendant did not
reply to that argument, which we found “convincing.” Id.
17
We have considered control over an enterprise, even on a
temporary basis, to be a fact supporting the application of an
enhancement under U.S.S.G. § 3B1.1. See United States v. Sheikh,
367 F.3d 683, 688 (7th Cir. 2004) (noting that the defendant
“exclusively ran the store and directed Yousef’s activities for a
period of time during which the fraud continued”).
No. 08-2925 25
inal enterprise.18 We therefore conclude that the district
court did not clearly err in applying the manager-or-
supervisor enhancement.
3. The Reasonableness Of Mr. Anderson’s Sentence
In his third and final challenge to his sentence, Mr.
Anderson claims that the sentence imposed by the
district court is unreasonable. We review the substan-
tive reasonableness of a sentence under the abuse-of-
discretion standard. United States v. Omole, 523 F.3d 691,
698 (7th Cir. 2008). Where, as here, the district court
imposes a below-guidelines sentence, it is presumed that
the sentence is not unreasonably high. United States v.
Wallace, 531 F.3d 504, 507 (7th Cir. 2008) (“A sentence
within the [guidelines] range is presumptively reason-
18
See Sheikh, 367 F.3d at 688 (concluding that the court did not
clearly err by deeming the defendant a supervisor when the
defendant “made countless deposits of illegally obtained food
stamps, obtained a large portion of the proceeds from the
fraud as compared to other participants . . . exclusively ran
the store and directed Yousef’s activities for a period of time
during which the fraud continued, and terminated the
services of the bookkeeping firm when it pointed out
accounting irregularities”); United States v. Gracia, 272 F.3d
866, 877 (7th Cir. 2001) (concluding that the district court did not
err in applying a section 3B1.1 enhancement where the defen-
dant, among other things, “provided or directed large sums
of money far greater than the $50 or $75 paid to the minor
participants and received a correspondingly far larger share”).
26 No. 08-2925
able, and it follows that a sentence below the range also
is presumptively not too high.” (citations omitted)).
Mr. Anderson contends that his sentence was unrea-
sonable for two reasons: First, he asserts that the district
court failed to consider his advanced age, his medical
history, his limited culpability and his good character
when determining his sentence. Second, he asserts that
there is an unjustifiable disparity between his sentence
and the sentences of his coconspirators.
The first of these arguments is unsupported by the
record. Before imposing Mr. Anderson’s sentence, the
district court considered a number of factors, including
Mr. Anderson’s age, physical condition and education
level, Congress’ determination that telemarketing fraud
warrants “a stiff penalty due to the nature of the crime
and the numbers of people affected,” the scope of the
conspiracy, the vulnerability of its victims, and the
actions taken by the coconspirators to avoid detection.
R.183 at 53-56. It specifically indicated, moreover, that
it was departing from the recommended sentencing
range based on its assessment of Mr. Anderson’s age,
his physical condition and, most significantly, its con-
clusion that Mr. Anderson “was to a certain extent
duped by the conspiracy.” Id. at 56. Thus, the court ade-
quately explained the sentence it imposed, and it suffi-
ciently addressed Mr. Anderson’s claim that, in light
of his age, medical condition and relative culpability,
a below-guidelines sentence was warranted. Cf. United
States v. Kincannon, 567 F.3d 893, 901 (7th Cir. 2009) (deem-
ing the imposition of a thirty-year sentence “presump-
No. 08-2925 27
tively reasonable” where the district court considered
the defendant’s claim for leniency in light of his ad-
vanced age, but declined to impose a below-guidelines
sentence in light of other countervailing factors).
Mr. Anderson’s second challenge to the reasonableness
of his sentence also must fail. Mr. Anderson claims that
his sentence should be vacated in light of the disparity
between his sentence and the sentences of his
codefendants, which, he submits, is unjustified. We
previously have concluded, however, that an asserted
discrepancy between the sentences of two codefendants
is an insufficient basis for challenging a sentence.
Omole, 523 F.3d at 700 (“This court refuses to view the
discrepancy between sentences of codefendants as a
basis for challenging a sentence.”). We shall not disturb
a sentence based on a claim of an unjustifiable
disparity between the sentences of codefendants unless
the defendant can show that the sentence imposed
“creates a disparity between the length of [his] sentence
and all other similar sentences imposed nationwide.” Id.
(citation and quotation marks omitted).
Mr. Anderson has failed to demonstrate that there is
an unwarranted disparity between his sentence and the
sentences of defendants with similar records who have
been convicted of similar crimes. See United States v.
Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). Mr. Anderson
has not pointed to any cases where a similarly situated
defendant received a sentence that was significantly
lower than his own. In his brief, Mr. Anderson points to
a number of cases that, he claims, involved defendants
28 No. 08-2925
convicted of similar crimes who received sentences dis-
proportionately shorter than his own. See Appellant’s Br.
43-45. However, the disparity in sentencing reflects
legitimate factual differences between Mr. Anderson’s
case and those on which he relies. Of the cases cited by
Mr. Anderson, only three involve telemarketing fraud.
Of those three telemarketing fraud cases, two involve
defendants who were sentenced under a guidelines
provision that is no longer in force.1 9 Furthermore, it is not
clear that any of the telemarketing cases cited by Mr.
Anderson involved more than 250 victims, nor does it
appear that any of those cases involved crimes in which
a substantial part of the offense was committed outside
19
Two of the telemarketing fraud cases cited by Mr. Anderson
involve defendants who were sentenced under an earlier
guidelines provision pertaining to offenses involving fraudu-
lent conduct. See U.S.S.G. § 2F1.1, deleted by consolidation with
U.S.S.G. § 2B1.1 (effective Nov. 1, 2001). Under that section, the
applicable base offense level for individuals convicted of
fraud was set at 6; where the loss from the fraudulent conduct
exceeded $5,000,000 but was less than $10,000,000, the base
offense level was enhanced by only 14. See U.S.S.G. §§ 2F1.1(a),
(b)(1)(O) (2000). Mr. Anderson, however, was sentenced
under U.S.S.G. § 2B1.1; under the terms of that provision, his
base offense level was set at 7, and he received a 20-level
enhancement because the loss caused by the fraud exceeded
$7,000,000. U.S.S.G. §§ 2B1.1(a)(1), (b)(1)(K). Thus, any differ-
ence between Mr. Anderson’s sentence and the sentences of
those individuals sentenced under section 2F1.1 may be ex-
plained by the difference in the base offense levels and en-
hancements set forth in the applicable guidelines provisions.
No. 08-2925 29
of the United States. Those facts were, however, estab-
lished in this case, and they had a significant impact on
Mr. Anderson’s sentencing range; Mr. Anderson
received a six-level increase in his offense level because
of the number of victims of the offense, see U.S.S.G.
§ 2B1.1(b)(2)(C), and a two-level increase because a sub-
stantial part of the scheme was committed outside the
United States, see U.S.S.G. § 2B1.1(b)(9)(B).
The factual distinctions between the cases cited by
Mr. Anderson and his case, together with the difference
in the guidelines provisions and enhancements
applicable in those cases, make the cases cited by Mr.
Anderson a poor basis for comparison. The difference
between Mr. Anderson’s sentence and the sentences of
the defendants in those cases may have been caused by
any one of a number of facts that distinguish Mr. Ander-
son’s case from the others. Thus, we cannot con-
clude that there is any unwarranted disparity between
Mr. Anderson’s sentence and the sentences of similarly
situated defendants nationwide.2 0
20
Furthermore, to the extent that Mr. Anderson’s sentence
differs from his codefendants’ sentences, that difference may
be explained by his codefendants’ willingness to plead guilty,
their cooperation with the Government, and the imposition of
a two-level obstruction-of-justice enhancement in Mr. Ander-
son’s case. United States v. Boscarino, 437 F.3d 634, 638 (7th
Cir. 2006) (concluding that the difference between the codefend-
ants’ sentences did not amount to an unwarranted disparity,
because it was “justified by legitimate considerations, such
as rewards for cooperation”).
30 No. 08-2925
Accordingly, we must conclude that Mr. Anderson has
failed to establish any unjustified disparity between his
sentence and the sentences of similarly-situated defen-
dants. Because Mr. Anderson has not presented any
evidence or arguments sufficient to overcome the pre-
sumption that his below-guidelines sentence is reason-
able, we shall not disturb his sentence on appeal.
Conclusion
For the reasons set forth in this opinion, we affirm the
decision of the district court.
A FFIRMED
9-3-09