United States v. Lori Hargis , 747 F.3d 917 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2153
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORI HARGIS,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:11CR00001-001 — Richard L. Young, Chief Judge.
ARGUED SEPTEMBER 7, 2012 — DECIDED APRIL 3, 2014
Before CUDAHY, ROVNER, and TINDER, Circuit Judges.
ROVNER, Circuit Judge. Lori Hargis solicited Leslie Vashaun
White to burn down her house so that she could collect a
settlement from her insurance company. Hargis was charged
with conspiracy to use fire to commit wire fraud, see 18 U.S.C.
§ 844(m), and unlawful structuring of cash withdrawals to
avoid financial reporting requirements, see 31 U.S.C. §§ 5313,
5324(a)(3), 5322(a). She pleaded guilty to the conspiracy charge
in exchange for the government dismissing the structuring
2 No. 12-2153
charge, and the district court imposed an above-guidelines
sentence of 60 months imprisonment. She asserts on appeal
that the district court erred when it applied upward
adjustments for obstruction of justice, see U.S.S.G. § 3C1.1, and
her aggravating role in the offense, see id. § 3B1.1(c). She also
challenges the reasonableness of her above-guidelines
sentence. Because the facts justify the district court’s decision
to apply the upward adjustments, and the district judge
adequately explained his rationale for imposing the 60-month
sentence, we affirm the district court’s judgment.
I.
Hargis put her house in Henderson, Kentucky, on the
market, and when it proved difficult to sell she solicited White
to burn down the house. She agreed to pay him $10,000 from
the money that she anticipated receiving from her
homeowner’s-insurance policy. White burned down the house
in December 2007, and Hargis and White were each charged
with conspiracy to use fire to commit wire fraud, see 18 U.S.C.
§ 844(m), and unlawful structuring of cash withdrawals, see 31
U.S.C. §§ 5313, 5324(a)(3), 5322(a).
Hargis initially intended to plead guilty, but at the change-
of-plea hearing she testified that, after arranging for White to
burn down the house, she changed her mind and called White,
telling him not to go through with the plan. She told the district
court that she never again discussed the idea with White, but
he nevertheless burned down the house three months later.
After hearing this testimony, the court rejected Hargis’s plea,
reasoning that she was unable to admit guilt if she claimed to
have withdrawn from the conspiracy.
No. 12-2153 3
The case was set for a jury trial, but a few days before trial
Hargis notified the court that she wished to plead guilty after
all. At the change-of-plea hearing this time, Hargis testified
that after she solicited White’s help, she spoke to him several
times about the plan, and instructed him to set the house afire
after she ensured that her children were not inside. The court
accepted Hargis’s guilty plea on the conspiracy charge, and the
government dismissed the remaining charge.
At sentencing the district court calculated a total offense
level of 14. This calculation reflected an upward adjustment of
two levels for obstruction of justice, see U.S.S.G. § 3C1.1, two
more levels up for her aggravating role in the offense as an
organizer or leader, see id. § 3B1.1, and a reduction of two
levels for acceptance of responsibility, see id. § 3E1.1(c). With a
criminal history category of I, the court calculated a guidelines
range of 15 to 21 months and sentenced Hargis above that
range, to 60 months in prison. The above-guidelines sentence
was warranted, the court reasoned, because the sentencing
guideline that applies to Hargis’s offense, see id. § 2K1.3, does
not adequately account for the seriousness of her actions in the
arson-for-profit scheme. And when he addressed the 18 U.S.C.
§ 3553(a) factors, the district judge noted that Hargis had
burned down her own children’s home, inflated her insurance
claim, and filed a frivolous lawsuit against her insurance
company, costing the company $100,000 in attorney’s fees. The
court also emphasized that Hargis’s actions involved “a brazen
disregard for the law, for the truth, and for the harm to others.”
4 No. 12-2153
II.
Hargis appeals, first asserting that the district court clearly
erred when it concluded that she was an organizer or leader of
the offense and imposed a two-level upward adjustment under
U.S.S.G. § 3B1.1(c). She insists that the court impermissibly
relied on only one factor—that she recruited White—in
concluding that she was a leader or organizer, and that factor
alone is insufficient to support the adjustment. But we have
told district courts to “make a commonsense judgment about
the defendant’s relative culpability” when deciding whether to
impose an aggravating role adjustment, United States v. Weaver,
716 F.3d 439, 443 (7th Cir. 2013); see United States v. Figueroa,
682 F.3d 694, 697 (7th Cir. 2012), and the facts here show that
Hargis led the conspiracy: She hatched the idea to burn down
her house and collect the insurance proceeds; recruited White
to carry out the plan; told White which day to set the house
afire; planned to keep most of the profits from the offense; and
attempted to maximize the money that she hoped to receive
from the insurance company by inflating the insurance claims,
filing a frivolous lawsuit against the company, and lying under
oath at her deposition in that case. See United States v. Golden,
954 F.2d 1413, 1418–19 (7th Cir. 1992) (concluding that
defendant was organizer in arson offense because he recruited
co-conspirator and distributed proceeds from the offense,
keeping most for himself); United States v. Paccione, 202 F.3d
622, 624 (2d Cir. 2000) (reasoning that defendants organized
arson because they recruited co-conspirators and gave them
access to property to be set on fire). The district court therefore
did not clearly err when it concluded that Hargis led the
conspiracy.
No. 12-2153 5
Hargis next challenges the district court’s conclusion that
she obstructed justice when she testified at the first change-of-
plea hearing that she had changed her mind and told White
not to burn down the house. See U.S.S.G. § 3C1.1. She contends
that her testimony, although false, was nonetheless insufficient
to support a defense that she had abandoned the conspiracy;
therefore, she concludes, she did not willfully attempt to
obstruct justice by attempting to exonerate herself.
We disagree with Hargis and conclude that her testimony
would have allowed her to advance a withdrawal defense.
See United States v. Walker, 721 F.3d 828, 840 (7th Cir. 2013)
(explaining that conspirator withdraws from conspiracy when
he communicates to co-conspirators that he has abandoned the
conspiracy’s goals); United States v. Emerson, 501 F.3d 804, 811
(7th Cir. 2007) (same). Hargis falsely testified that, after she
told White to burn down the house, she called him and told
him not to go through with the plan. If that testimony were
believed, then White burned down the house of his own,
independent volition. Because this testimony could allow a
reasonable factfinder to conclude that Hargis may have
withdrawn from the conspiracy, it is not an admission of the
crime of conspiracy, so the district court could not accept her
guilty plea to that crime. See United States v. Bahena-Navarro,
678 F.3d 492, 495 (7th Cir. 2012) (explaining that district court
must identify factual basis for guilty plea); United States v. Rea-
Beltran, 457 F.3d 695, 700–01 (7th Cir. 2006) (noting that factual
basis requirement is designed to protect defendant who may
not realize “that his conduct does not actually fall within the
charge”) (internal citation and quotation marks omitted). As a
result of her lies to the district court, it scheduled the case for
6 No. 12-2153
trial, forcing the government to prepare for trial and the
possibility of an abandonment defense.
Even if Hargis’s false testimony did not put her guilt as a
co-conspirator into question, it had the effect of minimizing her
role in the offense, and that alone is sufficient to warrant the
adjustment. See United States v. White, 582 F.3d 787, 797 (7th
Cir. 2009). By stating that she told White not to go through
with the arson, she could have led the court to believe that
White took it upon himself to burn down the house. And if
believed, her testimony could have then influenced the court
to apply a minor role reduction, giving her a shorter sentence.
See id.; United States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006).
Because Hargis’s false testimony related to her guilt and role
in the offense, the district court correctly imposed the
adjustment for obstruction of justice.
Hargis also raises two challenges to the reasonableness of
her above-guidelines sentence. She first asserts that the district
court erred when, in sentencing her on the conspiracy
conviction, it considered evidence that she had committed the
underlying offense of arson. But in sentencing for conspiracy,
it is well within the court’s discretion to consider the
defendant’s commission of the underlying offense, see U.S.S.G.
§ 1B1.4.
She also argues that the district court did not explain or
justify its above-guideline sentence. But the court adequately
considered the factors under 18 U.S.C. § 3553(a), see United
States v. Hodge, 729 F.3d 717, 721 (7th Cir. 2013), and offered
compelling justifications for the sentence, see United States v.
Bradley, 675 F.3d 1021, 1025 (7th Cir. 2012); United States v.
Johnson, 612 F.3d 889, 896 (7th Cir. 2010). The district judge
No. 12-2153 7
acknowledged that Hargis has no criminal history and is
unlikely to commit future crimes, see 18 U.S.C. § 3553(a)(2)(C).
He also considered several letters from Hargis’s family and
friends attesting to her good character. But the judge identified
several aggravating circumstances. The applicable guideline,
see U.S.S.G. § 2K1.3(a)(5), the judge observed, deals with
explosive materials and does not appear to be designed to
account for arson-for-profit cases like Hargis’s. The judge also
remarked that Hargis’s crime was “incredible” because she
had schemed and lied to the court, her insurance company,
and her own family. See id. § 3553(a)(1). As further evidence of
the seriousness of Hargis’s offense, see id. § 3553(a)(2)(A), the
judge noted that: She burned down the house that she shared
with her two children and contained many of their personal
belongings; the fire posed a substantial risk of harm to a
neighbor who entered the house in fear that Hargis’s children
were inside, as well as the firefighters who responded; and
finally, Hargis inflated the amount of loss from the fire,
committed perjury, and filed a frivolous lawsuit against her
insurance company. Because the district judge discussed
factors “sufficiently particularized” to Hargis’s individual
circumstances and adequately justified the sentence, we find
no error. See United States v. Stinefast, 724 F.3d 925, 932–33 (7th
Cir. 2013) (quotation marks and citation omitted).
AFFIRMED.