United States v. Frederic Haywood , 777 F.3d 430 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3815
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERIC S. HAYWOOD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 1023-2 — Ronald A. Guzmán, Judge.
____________________
ARGUED NOVEMBER 18, 2014 — DECIDED JANUARY 26, 2015
____________________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Fred Haywood, with help from
others, processed bogus applications for mortgage loans and
caused $1.4 million in losses to the lenders. He pleaded
guilty to wire fraud, 18 U.S.C. § 1343, and was sentenced to
151 months’ imprisonment. On appeal Haywood argues that
part of the loss should have been excluded in calculating his
offense level under the sentencing guidelines. Haywood
explains that he disclosed part of his fraud during proffer
2 No. 13-3815
sessions protected by U.S.S.G. § 1B1.8. He also contends that
the district court improperly applied a 4-level,
aggravating-role adjustment under U.S.S.G. § 3B1.1(a). We
affirm the judgment.
Haywood worked for several mortgage brokers between
July 2001 and June 2007, and during that time he and at least
10 others (including his 5 codefendants) defrauded financial
institutions that made loans to the brokerages’ clients. As a
“loan officer” or “loan processor” for his employers,
Haywood was tasked with preparing loan applications and
assembling supporting documents on behalf of home buyers
needing financing. But many applications that Haywood
prepared were chock-full of lies. He corroborated them with
phony or altered documents, including property appraisals,
cashier’s checks (altered to make it appear that the buyers
had made down payments), W-2 forms, pay stubs, and
statements from landlords or property-management compa-
nies verifying that buyers who didn’t already own a home
were paying rent. Sometimes Haywood inflated the pur-
chase price, causing the buyer to borrow more than neces-
sary and allowing him to divert the excess to himself at clos-
ing. Sometimes the “buyers” themselves participated in the
frauds, since they never intended to occupy the homes or
repay the loans. Instead, they were being paid by Haywood
to lend their names (and good credit) to secure fraudulent
loans. Overall, Haywood admitted arranging 65 fraudulent
loans.
Many of the phony rent verifications came from “New
Christian Property Management,” one of several shell com-
panies incorporated by Haywood. (He used that company
also to funnel loan proceeds to himself.) Codefendant Steve
No. 13-3815 3
Young, a fellow loan officer at one of the brokerages, created
a variety of sham documents to meet Haywood’s specifica-
tions. Codefendant Sumira Persuad supplied many of the
inflated appraisals. Codefendant DeAngelo McMahan, an-
other loan officer, helped gather documents for Haywood’s
loan applications. Haywood also paid at least five unindict-
ed “bird dogs” to find “buyers” who would willingly apply
for fraudulent loans.
In July 2007, before federal authorities had filed charges,
an FBI special agent and three other federal agents inter-
viewed Haywood (with his lawyer and a federal prosecutor
present). Haywood admitted that at least 20 times from 2003
through 2005 he had given lenders false information about
loan applicants’ income, employment, and assets. But, as ev-
idenced by the FBI agent’s report of that interview,
Haywood falsely denied much of his illegal activity, and ap-
parently he did not share details about specific fraudulent
loans. It was nearly 18 months later, in December 2008, that
federal authorities charged Haywood. He executed a plea
agreement and pleaded guilty to a single count of wire fraud
in April 2012.
An FBI special agent discussed the case with the proba-
tion officer who prepared Haywood’s presentence investiga-
tion report. That report reflects that the agent told the proba-
tion officer that Haywood had given truthful information
during “two proffer interviews” conducted before he signed
the plea agreement. In their plea agreement the parties stipu-
lated that Haywood was responsible for 65 fraudulent loans
(each one listed in “Attachment A” to the plea agreement)
with a combined loss of $1,447,270. The plea agreement also
states, in a section titled “Offense Level Calculation,” that a
4 No. 13-3815
16-level increase would apply under U.S.S.G. § 2B1.1(b)(1)(I)
“because the loss amount of $1,447,270 exceeds $1,000,000
but is less than $2,500,000.” The plea agreement says nothing
about the proffer interviews, about Haywood cooperating,
or about U.S.S.G. § 1B1.8.
The probation officer relied entirely on the plea agree-
ment in recommending that the loss amount used for guide-
lines purposes include the entire $1,447,270. In the presen-
tence investigation report, the probation officer calculated a
guidelines imprisonment range of 151 to 188 months, based
on a total offense level of 29 and a criminal history category
of VI. That offense level includes the 16-level increase under
§ 2B1.1(b)(1)(I) for a loss between $1 million and $2.5 million.
The Level 29 also includes a 4-level increase under U.S.S.G.
§ 3B1.1(a), which applies to “an organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive.” The probation officer reasoned
that the scheme involved at least five participants, that
Haywood was “culpable in all aspects,” and that he served
as an organizer exerting “a guiding influence over”
the other participants.
Three days before sentencing, new counsel for Haywood
filed—late—a sentencing memorandum. Counsel objected to
the 16-level increase under § 2B1.1(b)(1)(I). According to
counsel, “three deals involving 5121 S. Union, 2130
S. Trumbull, and 5721 S. Hermitage with a total loss value of
$486,000” should be excluded from the guidelines loss be-
cause, counsel asserted, the government had first learned
about those frauds “during various proffer sessions.” Coun-
sel insisted that the guidelines loss would be $917,000 after
subtracting $486,000, which would lead to an upward ad-
No. 13-3815 5
justment of 14 levels, not 16, see U.S.S.G. § 2B1.1(b)(1)(H). In
addition, counsel also objected that Haywood wasn’t an or-
ganizer or leader and, thus, shouldn’t receive a 4-level in-
crease under § 3B1.1(a).
In Haywood’s sentencing memorandum, defense counsel
supplied no details about the objection to the probation
officer’s loss calculation, not even the dates or individual
losses corresponding to the three addresses, all in Chicago.
And, in fact, counsel’s math does not add up. Subtracting
$486,000 from the agreed total loss of $1,447,270 would leave
$961,270, not $917,000. More importantly, Exhibit A to the
plea agreement identifies five, not three, fraudulent loans
involving these addresses: in November 2003 and December
2004 for S. Union, showing no loss for the first of the two
loans and $47,500 for the second; in February 2004 and April
2005 for S. Trumbull, showing no loss for the first loan and
$91,500 for the second; and in June 2007 for S. Hermitage,
showing a loss of $284,750. These losses add up to $423,750,
not $486,000, and subtracting $423,750 from $1,447,270
leaves $1,023,520, still above the $1 million threshold for a
16-level increase.
The government and probation officer didn’t respond to
Haywood’s written objections. At the sentencing hearing,
when defense counsel was asked about remaining objections
to the presentence report, the lawyer raised the issue of the
4-level increase under § 3B1.1 but said nothing about the loss
calculation or the corresponding 16-level increase under
§ 2B1.1(b)(1)(I). Counsel asserted that being a “loan officer”
didn’t “necessarily make” Haywood a supervisor of the oth-
er participants. The better view, counsel argued, was that the
participants were “freelancers.” The district court overruled
6 No. 13-3815
Haywood’s objection to the 4-level increase, finding that he
was an organizer and leader in an “extensive—I mean really
extensive—fraudulent conspiracy.”
Haywood, who is represented by new counsel on appeal,
first argues that the district court miscalculated the guide-
lines loss by including the $486,000 purportedly attributable
to the S. Union, S. Trumbull, and S. Hermitage “deals.”
Those losses, Haywood says, were shielded by U.S.S.G.
§ 1B1.8(a) from being used in calculating overall loss because
he volunteered the fraud during proffer interviews.
Haywood’s new lawyer, though, simply has copied from
previous counsel’s sentencing memorandum without delv-
ing into the details or even checking the math. Like his pre-
decessor, appellate counsel asserts that the losses from the
three addresses add up to $486,000, which, as far as the re-
cord shows, is wrong. The correct figure, $423,750, is too
small to whittle the stipulated loss, $1,447,270, below the
$1 million needed for a 16-level increase. See U.S.S.G.
§ 2B1.1(b)(1)(I). So even if the district court should have ig-
nored all five of the fraudulent loans linked to these proper-
ties, the mistake was harmless.
Haywood also argues that the district court erred in find-
ing him to be an organizer or leader and adding 4 offense
levels under § 3B1.1 (indeed, Haywood insists, no increase
was warranted). Haywood admits being an “active and even
an enthusiastic participant in the mortgage fraud,” but he
continues to insist that his “co-defendants” were freelancers
and not under his control. He did not control Richard
Young, he says, and in fact learned from Young how to
commit mortgage fraud. Moreover, Haywood adds, he par-
ticipated in just one “deal” with DeAngelo McMahan, none
No. 13-3815 7
with Rita McKenzie, and never even met Carl McMahan. His
brief says nothing about Sumira Persaud.
A 4-level increase is warranted under § 3B1.1(a) if the de-
fendant participated in a criminal activity involving at least
five participants (including himself) and organized or led at
least one of the other participants. U.S.S.G. § 3B1.1 cmt. n.2;
United States v. Vasquez, 673 F.3d 680, 685 (7th Cir. 2012);
United States v. Blaylock, 413 F.3d 616, 621 (7th Cir. 2005);
United States v. Gerstein, 104 F.3d 973, 979 (7th Cir. 1997). A
“participant” need not be convicted or even charged. See
U.S.S.G. § 3B1.1 cmt. n.1; United States v. Knox, 624 F.3d 865,
874 (7th Cir. 2010); United States v. Boutte, 13 F.3d 855, 860
(5th Cir. 1994). And contrary to what Haywood implies, a
defendant can be an organizer or leader without knowing
every participant. United States v. Kamoga, 177 F.3d 617, 622
(7th Cir. 1999). Relevant factors include the defendant’s deci-
sion-making authority, whether he recruited accomplices,
his planning and participation, the nature of the offense, and
the amount of control he exerted over others. U.S.S.G.
§ 3B1.1 cmt. n.4; United States v. Cooper, 767 F.3d 721, 733
(7th Cir. 2014).
Haywood’s contention that he wasn’t an organizer or
leader is preposterous. He admitted processing the applica-
tions for the 65 fraudulent mortgage loans listed in Exhibit A
to the plea agreement. He told Young what phony docu-
ments he wanted and what specific information to include in
those documents. He recruited Persaud and told her what
valuations to use in her inflated appraisals. He instructed
DeAngelo McMahan to bring particular documents to a loan
closing and to fax him documents to prepare loans. And he
recruited and paid at least five “bird dogs” to find “buyers”
8 No. 13-3815
for fraudulent loans. This was more than enough for the
court to conclude that Haywood “had direction and control
during the pertinent transactions over what the others did.”
Accordingly, we affirm the judgment.