United States v. Jefferson, Cleveland , 182 F. App'x 548 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2006*
Decided May 26, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4106
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Central District of Illinois.
v.
No. 04-20057
CLEVELAND JEFFERSON,
Defendant-Appellant. Michael P. McCuskey, Chief Judge.
ORDER
Cleveland Jefferson appeals the 51-month sentence imposed on his conviction
for mail fraud. See 18 U.S.C. § 1341. Jefferson was president of both the statewide
and Champaign County chapters of the NAACP, and executive director of the
Champaign-Urbana Area Project (“CUAP”), a non-profit organization created to serve
at-risk youth and their families. Between November 1998 and May 2003, he used
*
We granted the parties’ joint motion to waive oral argument. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P. 34(f).
No. 05-4106 Page 2
these positions to steal more than $118,000 from the three organizations. He pleaded
guilty pursuant to a written plea agreement in which he waived “the right to appeal
all issues . . . except the court’s decision regarding whether the defendant
misrepresented himself as acting on behalf of a charitable organization.” In calculating
the advisory range under the sentencing guidelines, the district court began with a
base offense level of 7, see U.S.S.G. § 2B1.1(a)(1), and added eight levels because the
loss was between $70,000 and $120,000, see id. § 2B1.1(b)(1)(E). The court also applied
the two-level upward adjustment under subsection (b)(8)(A) for offenses that involved
a “misrepresentation that the defendant was acting on behalf of” a charitable
organization, since part of the funds that Jefferson stole came from a grant he obtained
from the NAACP’s national chapter by falsely stating that the money was needed for
a “get-out-the-vote” drive. In addition the court applied two-level upward adjustments
for using sophisticated means, see id. § 2B1.1(b)(9)(C), and for abusing a position of
trust, see id. § 3B1.3. And based upon Jefferson’s violation of the conditions of his
pretrial release, the district court also applied a two-level upward adjustment for
obstruction of justice under U.S.S.G. § 3C1.1, and denied a credit for acceptance of
responsibility under U.S.S.G. § 3E.1.1. The court concluded that Jefferson’s total
offense level was 23, which, coupled with his criminal history category of I, resulted in
a guidelines imprisonment range of 46 to 57 months. The district judge adopted the
government’s recommendation of 51 months, but noted that without the
recommendation he probably would have given a more severe sentence because of the
impact of Jefferson’s actions on the NAACP and CUAP.
On appeal Jefferson raises three challenges to his sentence. He argues that the
district court erred in: 1) applying the upward adjustment for misrepresenting himself
as acting on behalf of a charitable organization, 2) applying that adjustment while also
applying the adjustment for abuse of a position of trust, and 3) applying the
adjustment for obstruction of justice and denying acceptance points. We will consider
only the first argument, because the appeal waiver in Jefferson’s plea agreement
precludes appellate review of any other issue. See, e.g., United States v. Roche, 415
F.3d 614, 617 (7th Cir. 2005); United States v. Whitlow, 287 F.3d 638, 640-41 (7th Cir.
2002).
With respect to the first question, Jefferson argues that he made no false
appeals to the charitable impulses of donors because the grant money he obtained from
the NAACP National Voter Fund was not solicited from the public in response to his
request. It was, he says, simply “diverted” from existing funds. But we have held that
subsection 2B1.1(b)(8)(A) should be interpreted broadly as applying to a wide variety
of fraud cases, and we have declined to hold that the defendant’s action must “exploit
the ‘generosity’ and ‘charitable motives’ of his victim.” United States v. Ferrera, 107
F.3d 537, 541-42 (7th Cir. 1997) (quoting and distinguishing United States v. Frazier,
53 F.3d 1105, 1114 (10th Cir. 1995)). We have also emphasized that the guideline is
No. 05-4106 Page 3
concerned with the social harm that stems from this conduct. Id. at 542. Here
Jefferson solicited funds by playing on his ties to a charitable organization. Neither
he nor the Champaign County chapter had any preexisting entitlement to the grant
from the Voter Fund. We see no reason why it should matter that Jefferson
misrepresented his intentions to an incorporated entity rather than a natural person.
Accordingly, the sentence of the district court is AFFIRMED.