United States v. Jeanette Grigsby , 692 F.3d 778 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2473
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEANETTE G RIGSBY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07-cr-00342-3—Ronald A. Guzmán, Judge.
A RGUED JANUARY 10, 2012—D ECIDED A UGUST 29, 2012
Before B AUER, R OVNER, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Over the course of seven months,
Jeanette Grigsby and several coconspirators planned
and executed two bank heists, stealing more than a half-
million dollars from the bank where Grigsby worked as
a teller. After federal agents uncovered the inside jobs,
Grigsby was indicted on two counts of entering a
federally insured bank for the purpose of committing
a felony. See 18 U.S.C. § 2113(a). She pleaded guilty
2 No. 11-2473
without a plea agreement to the first count and later
stipulated through counsel that she committed the
second crime as well. With that, the government moved
to dismiss the second count.
In her sworn statement to the court, however, Grigsby
minimized her role in the offense, trying to pin most of
the blame on her coconspirators. So at sentencing the
district court applied a two-level sentencing guidelines
enhancement for obstruction of justice, see U.S.S.G. § 3C1.1,
and a three-level enhancement to account for her super-
visory role in the offense, see id. § 3B1.1(b). The re-
sulting guidelines range was 46 to 57 months, and the
court chose a sentence of 57 months, the top of
the range. Grigsby appeals, arguing that the court er-
roneously applied the two enhancements, and also
that her sentence is procedurally defective and substan-
tively unreasonable under 18 U.S.C. § 3553(a).
We affirm. Both enhancements were based on the
court’s factual finding that Grigsby lied during her plea
colloquy in an intentional effort to mislead the court
by understating her role in the offense. Although this
finding was based largely on documentary evidence—the
grand-jury testimony and plea agreements of two
of Grigsby’s coconspirators—our review remains defer-
ential; we will reverse only for clear error. See 18 U.S.C.
§ 3742(e). The court’s factual finding that Grigsby
lied about her role in the offense because she did in
fact supervise the scheme is well-supported by the evi-
dence and specific enough to withstand clear-error
review. The court also sufficiently considered the § 3553(a)
No. 11-2473 3
sentencing factors and was not required to specifically
address Grigsby’s routine arguments for a below-guide-
lines sentence. Finally, Grigsby’s within-guidelines sen-
tence—57 months for an inside bank-robbery scheme
that caused a significant loss—is not unreasonable.
I. Background
Grigsby was a teller at a branch of Bank One (now
Chase Bank) in Oak Forest, Illinois. In the summer of 2005,
she and several other employees hatched a plan to
steal money from the bank’s vault by staging a robbery.
On Grigsby’s version of events, she reluctantly agreed
to participate after repeated prodding from her super-
visor Jennifer Barthel, who was an assistant branch man-
ager. According to the other coconspirators, however,
it was the other way around; they said it was Grigsby
who originated and directed the scheme. Neither
Grigsby nor Barthel was a novice at this sort of thing;
the women had previously collaborated on a check-
cashing scam not at issue in this appeal.
After the plan was conceived, Grigsby approached
Tommie Gentry, a recent acquaintance, and asked him to
pose as the robber. She gave Gentry the relevant details
of the scheme, including a description of the bank’s
layout and instructions about which teller to approach.
She also gave him the code phrase to alert the teller that
this was the staged robbery: “Snow White.” Grigsby
then arranged a couple of meetings with Gentry and
Barthel and instructed Gentry to find others to help carry
out the robbery. She told Gentry that he and others he
4 No. 11-2473
recruited would be paid as much as $20,000 apiece from
the proceeds. Gentry got his cousin Marcus Gentry to
assist.
On the morning of August 24, 2005, the day of the
planned robbery, Grigsby and Tommie Gentry met at
a nearby McDonald’s restaurant to review the instruc-
tions. As planned, Grigsby did not participate in the
theft itself and called the bank to say that she would
not come to work that day. When Tommie and Marcus
Gentry arrived at the bank later that morning, they ap-
proached the designated teller Miriam Girgis, who was
in on the scheme, and she in turn summoned Barthel.
Pretending that a robbery was underway, Barthel opened
the vault and put a large amount of cash into a black bag
that Marcus had carried into the bank. The Gentry
cousins then fled the bank and met Grigsby at Tommie’s
home. Grigsby took possession of the money—totaling
about $242,000—and divided it among the coconspirators.
Having been so successful on their first try, Grigsby
and her accomplices initiated a second staged robbery
about seven months later. Grigsby contacted Tommie
Gentry to set things in motion. Gentry, in turn, recruited
two new coconspirators. On March 22, 2006, the day of
the second robbery, Grigsby sent Gentry a text message
giving him an “all clear” to proceed with the plan. Gentry
directed the new recruits to enter the bank. As before,
Barthel gave them access to the vault, and they
absconded with about $272,500. Grigsby again dis-
tributed the money. This time, however, federal
agents unraveled the scheme and arrested the culprits.
No. 11-2473 5
A grand jury indicted Grigsby on two counts of
entering a bank with intent to commit a felony in
violation of 18 U.S.C. § 2113(a). The coconspirators
were indicted as well, and all pleaded guilty pursuant
to plea agreements. Grigsby eventually announced her
intention to plead guilty to the count pertaining to the
first staged robbery. She did not have a plea agree-
ment, however, so the district court asked Grigsby and
the government to discuss the factual basis for her plea
so that they might avoid disputes. After meeting with
prosecutors, Grigsby offered the following statement to
the court under oath:
On August 24th, 2005, I assisted Jenna Barthel, which
is my supervisor at the time at Bank One, to stage
a bank robbery in which she came to me and asked
me that if I knew of anyone that will assist her, she
will order the money, she will load the bag up, she
will do all of that. I once told her no. Then she asked
me again; and then I told her, yeah, but I didn’t
want to have any parts to do with that; I don’t want
to be anywhere around. She says, you black; you
know that you can get someone to do that; that’s
what you all do. So I gathered to do such, intro-
duced her to Thomas Gentry. Then he and her pro-
ceeded to carry out the act. And doing so, when
the—the staged armed robbery had taken place,
later on I received monies from that staged bank
robbery.
The prosecutor asked a few follow-up questions about
whether the bank was federally insured and how much
money Grigsby received from the scheme. The district
6 No. 11-2473
court accepted this as a factual basis for Grigsby’s guilty
plea. The government moved to dismiss the second
count after Grigsby stipulated, through her counsel, that
she committed the second offense as well.
Grigsby’s presentence report recommended a two-
level guidelines enhancement for obstruction of justice,
see U.S.S.G. § 3C1.1, based on her sworn statement to
the court at her guilty-plea hearing in which she sub-
stantially understated her role in the offense. The
presentence report also recommended a three-level en-
hancement under U.S.S.G. § 3B1.1(b) for Grigsby’s super-
visory role in the scheme. At sentencing the prosecutor
submitted Barthel’s and Tommie Gentry’s grand-jury
testimony and written plea agreements to prove
that Grigsby in fact supervised the scheme and lied
about her role during her plea colloquy. Notwithstanding
its position on the obstruction-of-justice enhancement,
the government did not object to a three-level reduction
for acceptance of responsibility, see id. § 3E1.1(b), based
on Grigsby’s timely guilty plea and her stipulation to
the second robbery.
The district court adopted these recommendations.
Regarding the two-level enhancement for obstruction
of justice, the judge found as follows:
I agree with the government. There was an obstruction
of justice here. There was a clear material—let me
make it clear—a clear material misrepresentation as
to what her role in the offense was. She turned it
upside down. Everything she said was contradicted
by the others with respect to what her role was,
and that was for the purpose of escaping culpability.
No. 11-2473 7
Regarding Grigsby’s role in the offense, the judge elabo-
rated as follows:
I think there are several witnesses or multiple wit-
nesses who make this defendant clearly a recruiter
and a decision-maker and an organizer. First, her
coworkers say she recruited them, not the other way
around. Tomm[ie] Gentry says clearly she recruited
him. No one else recruited him. No one else reached
out to him. She did. And recruiting co-conspirators
is one of the things one looks at in determining
whether an adjustment for role in the offense is ap-
propriate.
Second, she met at every important stage with the
participants to plan this robbery or theft. She met
with Barthel and Tomm[ie] Gentry. She met with
Tomm[ie] Gentry and Marcus Gentry. She arranged
for who was going to be present and who was not
going to be present at the time of the offense. Very
important. Very important. She controlled the pro-
ceeds of the theft. She went to the house and got
from Tomm[ie] Gentry the proceeds of this offense
and then she parce[led] out the proceeds to Barthel
and [codefendant Miriam] Girgis. That’s organiza-
tion, decision-making and recruiting. She merits a
three point increase in adjustment for role in the
offense.
The resulting guidelines range was 46 to 57 months.
Grigsby’s attorney argued for a below-guidelines sen-
tence, relying mostly on Grigsby’s history of overcoming
childhood abuse, her status as a first-time offender, and
8 No. 11-2473
her relationship with her children. The judge did not
specifically address these arguments, focusing instead
on “the magnitude of this offense [and] the defendant’s
participation in it.” The judge noted that Grigsby’s
conduct involved “repeated decisions over substantial
periods of time,” and reflected a deliberate and sustained
choice “to do wrong for no other reason than personal
gain.” The judge also found it “difficult to comprehend
the determination on this defendant’s part to gut her
employer in a false, deceptive and malicious manner
on several fronts.” Finally, the judge noted “the need for
rehabilitation and the necessity to impose some
modicum of restraint on future conduct.” The court
imposed a sentence of 57 months, at the top of the range.
II. Discussion
Grigsby challenges her sentence on several grounds.
She argues that the district court erroneously applied
the two-level enhancement for obstruction of justice
and the three-level enhancement for supervising others
in the scheme. See U.S.S.G. §§ 3C1.1, 3B1.1(b). She also
contends that her 57-month sentence is procedurally
defective and substantively unreasonable because the
district court failed to meaningfully consider the § 3553(a)
factors.
A. Obstruction-of-Justice Enhancement
The sentencing guidelines provide for a two-level
increase in offense level if the defendant “willfully ob-
No. 11-2473 9
structed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant
offense of conviction.” Id. § 3C1.1. Among other things,
this enhancement applies if the defendant commits
perjury during judicial proceedings. See United States v.
Dunnigan, 507 U.S. 87, 93-94 (1993); United States v. Ander-
son, 580 F.3d 639, 648 (7th Cir. 2009).
Grigsby wages a broad-spectrum attack on the district
court’s application of the obstruction enhancement.
First, she argues that the government waived its oppor-
tunity to ask for the enhancement by failing to
immediately object to her perjured testimony during the
plea hearing. Second, she maintains that the state-
ments she made about her role in the offense were not
material to the purpose of the plea colloquy—namely, to
establish a factual basis for her guilty plea—and
therefore cannot be the basis of an obstruction-of-justice
enhancement. Third, she asserts that the judge was re-
quired to specifically identify which part of her
statement was false, and his failure to do so is reversible
error. Finally, she argues that the evidence is insufficient
to support the court’s finding that her statement was
false and intentionally misleading.
Grigsby’s waiver argument is obviously flawed. It is
true that the government waives sentencing arguments
not made in a timely fashion, see United States v. Sutton,
582 F.3d 781, 786 (7th Cir. 2009), but here, the govern-
ment raised the obstruction-of-justice issue at sen-
tencing, which is the proper time to pursue guidelines
10 No. 11-2473
enhancements. The government was not required to
object to Grigsby’s perjured testimony during the plea
hearing in order to preserve the issue for sentencing.
Grigsby’s argument about materiality is likewise obvi-
ously mistaken. A defendant commits perjury “if she
gives 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.”
Dunnigan, 507 U.S. at 94. A false statement is material if
it has “a natural tendency to influence, or [is] capable
of influencing, the decision of the decisionmaking body
to which it was addressed.” United States v. Lupton, 620
F.3d 790, 806 (7th Cir. 2010) (quotation marks omitted).
The statement need not actually affect the decision. Id.
Grigsby argues that the purpose of a plea colloquy is
to establish a factual basis for a defendant’s guilty
plea—not to determine whether a particular sen-
tencing enhancement should apply—and therefore any
false statement about her role in the offense was not
material to the purpose of her plea hearing.
This conception of materiality is far too narrow. A guilty-
plea proceeding is not limited to establishing the factual
basis for the plea; it also lays some of the groundwork
for the sentence. The defendant’s testimony during
a plea colloquy—like the defendant’s testimony
during a pretrial suppression hearing or at trial—is
highly relevant at sentencing. The obstruction-of-justice en-
hancement seeks to maintain the integrity of the entire ad-
judicative process. See U.S.S.G. § 3C1.1 (enhancement
applies to obstruction “with respect to the investigation,
No. 11-2473 11
prosecution, or sentencing of the instant offense of con-
viction” (emphasis added)); id. § 3C1.1 cmt. n.1
(“This adjustment applies if the defendant’s obstructive
conduct (A) occurred with respect to the investigation,
prosecution, or sentencing of the defendant’s instant
offense of conviction, and (B) related to . . . the de-
fendant’s offense of conviction and any relevant
conduct . . . .” (emphases added)). A defendant’s
deliberate attempt to mislead the court implicates the
basic purpose of the obstruction enhancement, whether
it occurs during a plea hearing, at trial, or at some
other point in the criminal process. This understanding
of the enhancement is implicit in our prior decisions.
See United States v. Johnson, 612 F.3d 889, 895 (7th Cir.
2010); United States v. Parker, 25 F.3d 442, 449 n.4 (7th
Cir. 1994). We now make the point explicit: A de-
fendant’s statements during a plea colloquy are material
if they have a natural tendency to influence the court’s
sentencing decision.
Here, the materiality of Grigsby’s false statements is
quite obvious. The issue of her role in the offense was
sure to come up during sentencing and would
determine whether she qualified for an “organizer or
leader” enhancement under § 3B1.1(a), or a “manager
or supervisor” enhancement under § 3B1.1(b). Her lie
didn’t fool anyone, but that doesn’t make it immaterial.
See United States v. DeLeon, 603 F.3d 397, 404 (7th Cir.
2010) (“[A]ll that is required for obstruction of justice
is that the act could affect, to some reasonable proba-
bility, the outcome of the judicial process; the [act] does
not have to succeed in affecting the outcome.” (quotation
marks omitted)).
12 No. 11-2473
Grigsby also maintains that the district court failed to
identify which part of her statement was false. The
court instead made a general finding that “[e]verything
she said was contradicted by the others with re-
spect to what her role was.” Grigsby insists that this
finding was not particularized enough to support the
obstruction-of-justice enhancement.
This argument misunderstands the governing legal
principle, which does not require the judge “to conduct a
mini-trial with respect to each of the defendant’s
false statements” or “set forth his or her findings specifi-
cally in terms of the elements of perjury.” United States
v. White, 240 F.3d 656, 662 (7th Cir. 2001). Nor must
the judge identify with particularity the specific state-
ments that were false. As the Supreme Court has ex-
plained,
if a defendant objects to a sentence enhancement
resulting from her trial testimony, a district court
must review the evidence and make independent
findings necessary to establish a willful impediment
to or obstruction of justice, or an attempt to do the
same, under the perjury definition we have set out. . . .
When doing so, it is preferable for a district court
to address each element of the alleged perjury in a
separate and clear finding. The district court’s deter-
mination that enhancement is required is sufficient,
however, if . . . the court makes a finding of an obstruc-
tion of, or impediment to, justice that encompasses
all of the factual predicates for a finding of perjury.
No. 11-2473 13
Dunnigan, 507 U.S. at 95. Thus, we have held that “separate
findings are not strictly necessary so long as the court
determined that the defendant lied to the judge” about
material matters. White, 240 F.3d at 662.
Here, the judge explained that Grigsby’s sworn testi-
mony during her plea hearing constituted “a clear
material misrepresentation as to what her role in this
offense was.” The judge said that “[s]he turned it
upside down,” that her testimony “was contradicted by
the others with respect to what her role was,” and that
her misrepresentation was made “for the purpose of
escaping culpability.” These findings easily surpass the
level of specificity required by Dunnigan. More than
once, the district court made it clear that Grigsby mis-
represented her role in the offense.
Indeed, this was the part of her plea colloquy that
the presentence report and the prosecutor had identified
as false. In her change-of-plea hearing, Grigsby testified
that Barthel “came to me” asking for assistance and that
“I once told her no.” Grigsby then claimed that Barthel
“asked me again; and then I told her, yeah, but I didn’t
want to have any parts to do with that; I don’t want to
be anywhere around.” Grigsby also claimed that Barthel
asked her to find someone to carry out the staged
robbery and that Grigsby then “introduced her to
Thomas Gentry.” These statements were plainly aimed at
minimizing Grigsby’s role and deflecting most of the
blame for the scheme onto Barthel. When the judge
found that Grigsby had lied about her role, he was obvi-
ously referring to these statements.
14 No. 11-2473
Grigsby specifically criticizes the judge for lumping
together “[e]verything she said.” This argument takes
the judge’s reference to “everything” out of context. The
actual finding was that “[e]verything she said was con-
tradicted by others with respect to what her role was.” (Em-
phasis added.) In context, the statement is easily under-
stood; the judge believed Barthel’s and Gentry’s version
of events and thought that Grigsby had deliberately
understated her own role in planning and executing
the scheme. The court’s findings were sufficiently par-
ticularized to satisfy Dunnigan.
Finally, Grigsby argues that the evidence was insuf-
ficient to support the court’s finding that her testimony
was both false and intentionally misleading. Sentencing
findings are reviewed for clear error. United States v.
Pellmann, 668 F.3d 918, 926 (7th Cir. 2012). In this case,
the district court based its findings largely on docu-
mentary evidence—specifically the grand-jury testimony
and plea agreements of coconspirators Barthel and
Gentry—rather than their live testimony. Grigsby seems
to suggest that clear-error review applies with less force
when the court’s decision is based on documentary evi-
dence. Not so.
In the sentencing context, clear-error review is re-
quired by statute:
The court of appeals shall give due regard to
the opportunity of the district court to judge
the credibility of the witnesses, and shall accept the
findings of fact of the district court unless they are
clearly erroneous and . . . shall give due deference
No. 11-2473 15
to the district court’s application of the guidelines to
the facts.
18 U.S.C. § 3742(e). There is no exception for factual
findings based on documentary evidence. By way of
analogy, prior to 1985, Rule 52(a) of the Federal Rules
of Civil Procedure stated generally that clear-error
review applied to factual findings, but some circuits
nonetheless reviewed factual findings based on docu-
mentary evidence under a lesser standard. The Supreme
Court rejected that approach in Anderson v. City of
Bessemer City, North Carolina, 470 U.S. 564, 574 (1985),
holding that clear-error review applies “even when the
district court’s findings do not rest on credibility deter-
minations, but are based instead on physical or docu-
mentary evidence or inferences from other facts.”
The Court began by pointing out that Rule 52(a)
“ ‘does not make exceptions or purport to exclude
certain categories of factual findings from the obligation
of a court of appeals to accept a district court’s
findings unless clearly erroneous.’ ” Id. (quoting Pull-
man-Standard v. Swint, 456 U.S. 273, 287 (1982)). The
Court explained:
The rationale for deference to the original finder of
fact is not limited to the superiority of the trial
judge’s position to make determinations of credibility.
The trial judge’s major role is the determination of
fact, and with experience in fulfilling that role
comes expertise. Duplication of the trial judge’s
efforts in the court of appeals would very likely con-
tribute only negligibly to the accuracy of fact deter-
16 No. 11-2473
mination at a huge cost in diversion of judicial re-
sources. In addition, the parties to a case on appeal
have already been forced to concentrate their
energies and resources on persuading the trial
judge that their account of the facts is the correct
one; requiring them to persuade three more judges
at the appellate level is requiring too much. As the
Court has stated in a different context, the trial on
the merits should be “the ‘main event’ . . . rather
than a ‘tryout on the road.’ ” Wainwright v. Sykes, 433
U.S. 72, 90 (1977). For these reasons, review of
factual findings under the clearly-erroneous stan-
dard—with its deference to the trier of fact—is the
rule, not the exception.
Id. at 574-75. That same year, the Rules Committee
amended Rule 52(a) to clarify that clear-error review
applies to all findings of fact, “whether based on oral
or documentary evidence.” 1 F ED. R. C IV. P. 52(a) (1985)
(emphasis added).
The Court’s reasoning in Anderson straightforwardly
applies to § 3742(e). Like Rule 52(a), § 3742(e) “ ‘does not
make exceptions or purport to exclude certain categories
of factual findings from the obligation of a court of
appeals to accept a district court’s findings unless clearly
1
Rule 52(a) now provides that “[f]indings of fact, whether
based on oral or other evidence, must not be set aside unless
clearly erroneous.” The language change was stylistic and not
meant to affect the meaning of the rule. See F ED . R. C IV . P. 52
advisory committee’s note on 2007 amends.
No. 11-2473 17
erroneous.’ ” Anderson, 470 U.S. at 574 (quoting Pull-
man-Standard, 456 U.S. at 287). Also, “the considerations
underlying [clear-error review]—the demands of judicial
efficiency, the expertise developed by trial judges, and
the importance of first hand observation, see [id.] at
574-75—all apply with full force in the criminal con-
text.” Maine v. Taylor, 477 U.S. 131, 145 (1986); see also
Hernandez v. New York, 500 U.S. 352, 365-66 (1991)
(plurality opinion) (“While no comparable rule [to
Rule 52(a)] exists for federal criminal cases, we have
held that the same standard should apply to review
of findings in criminal cases on issues other than guilt.”).
This is especially true at sentencing. In applying
the sentencing guidelines, the court “may consider
relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided
that the information has sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. § 6A1.3(a).
Thus, we have applied clear-error review under § 3742(e)
to factual findings based on documentary evidence, see,
e.g., United States v. Beal, 960 F.2d 629, 632-34 (7th Cir.
1992) (credibility finding based on presentence report),
and other circuits have done the same outside the sen-
tencing context, see, e.g., United States v. Stevenson, 396
F.3d 538, 543 (4th Cir. 2005) (holding that clear-error
review applies in criminal cases “even when findings of
fact are not based on observations of credibility, but
rather on undisputed evidence or on entirely docu-
mentary evidence”); Guerrero v. United States, 383 F.3d
409, 414-16 (6th Cir. 2004) (reaffirming an earlier holding
18 No. 11-2473
that clear-error review applies to factual findings even
when based on documentary evidence).2
More generally, then, when reviewing factual findings
for clear error, we will affirm “[i]f the district court’s
account of the evidence is plausible in light of the
record viewed in its entirety,” Anderson, 470 U.S. at 573-74,
and reverse only if we are “left with the definite and
2
Section 3742(e) specifically requires that the reviewing court
give “due regard” to the district court’s credibility determina-
tions, a deferential standard based on the district court’s
superior position to make these kinds of judgments. When the
district court has the benefit of hearing live testimony, we
generally accept the court’s credibility assessment unless “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.’ ” United
States v. Speed, 656 F.3d 714, 718 (7th Cir. 2011) (quoting
United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006)). This
is because “only the trial judge can be aware of the variations
in demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is said.” Anderson
v. City of Bessemer, N.C., 470 U.S. 564, 575 (1985).
However, this highly deferential approach to credibility
assessments based on live testimony does not imply that a
weakened form of clear-error review applies to other credibility
determinations. Rather, it means only that if a district court’s
credibility determination turns in part on documentary evi-
dence, then a finding of clear error might be based on
something short of physical impossibility. See United States v.
Ataya, 864 F.2d 1324, 1337 (7th Cir. 1988) (recognizing that clear-
error review of documentary evidence “is somewhat less
rigid” than review of live testimony).
No. 11-2473 19
firm conviction that a mistake has been committed,”
U.S. Gypsum Co., 333 U.S. at 395. No such error occurred
here. Grigsby told the court that she was first ap-
proached by Barthel about assisting her in stealing from
the bank’s vault, that she initially declined to participate,
and that she later reluctantly agreed to help recruit
Gentry. She also specifically said she “didn’t want to
have any parts to do” with the crime itself and didn’t
“want to be anywhere around.”
In contrast, Barthel directly contradicted Grigsby’s
version of events; she consistently maintained that
Grigsby occupied a leading role in the scheme. Ac-
cording to Barthel, it was Grigsby who first approached
her—not the other way around. Grigsby told her that
“the people that she had recruited were serious and
dangerous” and that she needed Barthel “to cooperate
to ensure that the robbery went smoothly and no one
got hurt.” Barthel also confirmed that after the staged
robberies, Grigsby took possession of the cash and dis-
tributed the proceeds.
Gentry, too, contradicted substantial parts of Grigsby’s
testimony. He said that Grigsby approached him sev-
eral times about participating in the scheme and asked
him to recruit others to help stage the robbery. He also
detailed how Grigsby took a supervisory role in planning
and directing the crime. Gentry testified that he, Grigsby,
and Barthel met at least twice before the robbery to
discuss the details, and that he and Grigsby met on the
morning of the first robbery to review the plans one last
time. He also testified that Grigsby met with him after
20 No. 11-2473
the robbery so that she could take control of the money
and distribute it to the coconspirators. Finally, Gentry
explained that Grigsby contacted him again about
staging a second robbery and asked for his help. On the
morning of the robbery, Grigsby sent Gentry a text mes-
sage giving him the “all clear” to proceed with the heist.
Although Barthel and Gentry acknowledged that they
had previously lied to the FBI, the district court did not
clearly err in crediting their version of events over
Grigsby’s. Their description of Grigsby’s role flatly con-
tradicted Grigsby’s sworn statement to the court. The
two versions were irreconcilable, so the court credited
Barthel’s and Gentry’s, and found that Grigsby’s state-
ment was actually false, not merely misleading. Cf.
Bronston v. United States, 409 U.S. 352, 360 (1973) (mis-
leading but literally truthful statements do not con-
stitute perjury). Other statements, while perhaps not
perjurious, were plainly misleading and provided the
court with ample reason to think that Grigsby was de-
liberately trying to minimize her role in the offense.
For instance, Grigsby said that after she reluctantly
agreed to help recruit Gentry, she clarified that she
“didn’t want to have any parts to do” with the scheme
and didn’t “want to be anywhere around.” This was
highly misleading; both Barthel and Gentry said that
Grigsby supervised the execution of the scheme. Her
absence from the bank was part of an effort to conceal
her role—not, as she suggested in her plea colloquy,
an effort to distance herself from participating in the crime.
In weighing this contradictory testimony, the district
court was well positioned to choose which version to
No. 11-2473 21
believe. Most significantly, the judge heard Grigsby’s
live testimony during her plea colloquy; by that time, he
had also conducted plea colloquies with almost all of
Grigsby’s codefendants.3 To be sure, none of these wit-
nesses testified at Grigsby’s sentencing hearing; the
court seems to have relied heavily on the grand-jury
transcripts.4 As we have explained, however, the court’s
reliance on documentary evidence does not affect the
standard of review. The record is easily sufficient to
support the district court’s finding that Grigsby inten-
tionally lied to the court in an effort to down-
play her culpability. The court properly applied the
obstruction-of-justice enhancement.
B. Supervisory-Role Enhancement
A defendant who is “an organizer or leader” of a
criminal scheme involving five or more participants gets
3
The change-of-plea hearings took place on December 2, 2009
(Marcus Gentry); December 16, 2009 (Tommie Gentry, Jr.);
February 19, 2010 (Jennifer Barthel); July 8, 2010 (Dirk Green);
and December 23, 2010 (Miriam Girgis). Grigsby’s change-of-
plea hearing took place on July 13, 2010. Also, by the time
of Grigsby’s sentencing hearing on June 1, 2011, the court
had sentenced three of the codefendants (Green, Girgis, and
Marcus Gentry).
4
Grigsby did not request an evidentiary hearing, nor did she
contend that such a hearing was necessary before the court
decided whose account to credit regarding her role in the
offense.
22 No. 11-2473
a four-level enhancement under U.S.S.G. § 3B1.1(a); “a
manager or supervisor” of a scheme involving five or
more participants gets a three-level enhancement under
§ 3B1.1(b); and “an organizer, leader, manager, or super-
visor” of a smaller scheme gets a two-level enhance-
ment under § 3B1.1(c). The district court classified Grigsby
as a supervisor and applied the three-level enhance-
ment under § 3B1.1(b).
The application notes to § 3B1.1 explain that
[i]n distinguishing a leadership and organizational
role from one of mere management or supervision,
titles such as “kingpin” or “boss” are not controlling.
Factors the court should consider include the
exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over oth-
ers. There can, of course, be more than one person who
qualifies as a leader or organizer of a criminal associa-
tion or conspiracy. This adjustment does not apply to
a defendant who merely suggests committing the
offense.
U.S.S.G. § 3B1.1 cmt. n.4. These factors are sometimes
applied to determine whether a defendant was a
manager or supervisor for purposes of § 3B1.1(b), but
we have recently clarified that these factors are meant
to distinguish a leader or organizer from a supervisor or
No. 11-2473 23
manager. See United States v. Figueroa, 682 F.3d 694, 694-95
(7th Cir. 2012). In other words, these factors may be of
little use in “determining whether a participant who is
neither a boss nor a grunt is a manager or (the same
thing, just a different word) a supervisor.” Id. at 696. Thus,
we held in Figueroa that a manager or supervisor should
be straightforwardly understood as simply someone
who helps manage or supervise a criminal scheme. Id.
at 697-98.
We have already explained that clear-error review
applies and that the district court did not clearly err
when it credited the coconspirators’ testimony over
Grigsby’s. It follows, then, that the district court
properly applied the supervisory-role enhancement.
According to Barthel and Gentry, Grigsby initiated
the scheme, played a leading role in recruiting the
coconspirators, and supervised the execution of the
staged robberies from outside the bank. She then took
custody of the proceeds and divided the money among
the coconspirators. On these facts Grigsby may well
have qualified for the “organizer or leader” enhance-
ment, but the district court surely had a sufficient
factual basis to apply the lesser “manager or supervisor”
enhancement.
Grigsby continues to insist that Barthel organized the
conspiracy, but this argument gets nowhere in light of
the district court’s decision to credit her coconspirators’
version of events. Even if we were to accept that
Grigsby and Barthel were equally culpable, Grigsby would
deserve at least the supervisory-role enhancement. The
24 No. 11-2473
committee notes to § 3B1.1 make it clear that “[t]here can,
of course, be more than one person who qualifies as
a leader or organizer of a criminal association or con-
spiracy.” U.S.S.G. § 3B1.1 cmt. n.4. The same is ob-
viously true of the “manager or supervisor” designation.
Grigsby’s participation in planning the scheme,
recruiting the participants, and directing its execution
all confirm her role as a supervisor.
C. Section 3553(a)
Grigsby argues that the district court failed to properly
consider the § 3553(a) sentencing factors and imposed
an unreasonable sentence. The district court’s procedural
compliance with § 3553(a) is subject to de novo review.
United States v. Cantrell, 617 F.3d 919, 922 (7th Cir.
2010). We review the reasonableness of the sentence for
an abuse of discretion. Gall v. United States, 552 U.S. 38,
51 (2007).
The sentencing court must adequately “explain why
the sentence imposed is appropriate in light of the statu-
tory factors specified in § 3553(a).” United States v. Robin-
son, 435 F.3d 699, 701 (7th Cir. 2006). However, we have
said many times that this obligation does not require
“comprehensively discuss[ing] each of the factors.”
United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th
Cir. 2009). Because defendants often raise “stock argu-
ments that sentencing courts see routinely,” we have
held that “a sentencing court is certainly free to reject
[those arguments] without discussion.” United States v.
Tahzib, 513 F.3d 692, 695 (7th Cir. 2008). Accordingly,
No. 11-2473 25
“we regularly affirm sentences where the district judge
does not explicitly mention each mitigation argument
raised by the defendant.” United States v. Paige, 611 F.3d
397, 398 (7th Cir. 2010). Procedural compliance with
§ 3553(a) thus requires that the judge give “meaningful
consideration” to the relevant factors in light of the in-
dividual circumstances of the case, id., but not that he
“step through each § 3553(a) factor in checklist fashion,”
United States v. Reyes-Medina, 683 F.3d 837, 840 (7th
Cir. 2012).
Grigsby first argues that the district court failed to
meaningfully consider her “history and characteristics,”
§ 3553(a)(1), because the court did not specifically
address certain aspects of her personal history—in particu-
lar, that she overcame childhood abuse, was a first-
time offender, and had a strong relationship with her
children. These are among the stock arguments that
sentencing judges routinely hear and may choose to
acknowledge only generally. This is particularly so
where, as here, the arguments have little to do with the
defendant’s culpability. Before pronouncing sentence,
the judge stated in general terms that he had “reviewed
the presentence investigation report, the supplemental
reports, . . . the submissions on behalf of the defendant, . . .
and of course I take into account the arguments and
representations made by the attorneys, as well as the
statement made by the defendant.” Under the circum-
stances here, this is all that § 3553(a) requires.
Grigsby next argues that the court failed to consider
“the need to avoid unwarranted sentence disparities
26 No. 11-2473
among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
In particular, she complains that she was treated more
harshly than her codefendants. She notes that Barthel
was sentenced to serve 18 months, and Miriam Girgis,
the other teller who was in on the scheme, got only
15 months. As we have repeatedly explained, however,
§ 3553(a)(6) addresses unwarranted disparities “not
among codefendants or coconspirators but among
judges or districts.” United States v. Scott, 631 F.3d 401, 405
(7th Cir. 2011); see also United States v. Sandoval, 668
F.3d 865, 873 (7th Cir. 2011) (describing “our refusal to
entertain sentencing challenges based on disparities
between codefendants’ sentences”). And because the
sentencing guidelines are based on national sentencing
patterns, see Rita v. United States, 551 U.S. 338, 349 (2007),
we have also held that a district court necessarily
considers the interest in consistency between similarly
situated defendants when it considers a properly calcu-
lated guidelines recommendation, see United States v.
Bartlett, 567 F.3d 901, 908 (7th Cir. 2009) (“A sentence
within a Guideline range ‘necessarily’ complies with
§ 3553(a)(6).”). The district court’s discretion in
evaluating the § 3553(a) factors allows but does not
require the court to consider disparities within a
particular case. Id.; United States v. Statham, 581 F.3d 548,
556 (7th Cir. 2009).5
5
This view is consistent with precedent in other circuits. See,
e.g., United States v. Martinez, 610 F.3d 1216, 1228 (10th Cir.
(continued...)
No. 11-2473 27
In any event, the difference between Grigsby’s sen-
tence and those of her codefendants can hardly be charac-
terized as “unwarranted.” “[A] sentencing difference is
not a forbidden ‘disparity’ if it is justified by legitimate
considerations, such as rewards for cooperation,” United
States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006), and
obvious reasons account for the divergent sentences
in this case. It should be clear by now that Grigsby’s super-
visory role in the offense and her perjury during
her plea colloquy put her in a very different position
than her coconspirators, who cooperated with the gov-
ernment and did not commit perjury. See id. (“[A] sen-
tencing difference based on one culprit’s assistance
to the prosecution is legally appropriate.”).
Finally, Grigsby contends that her sentence is substan-
tively unreasonable. Because Grigsby’s sentence falls
within a properly calculated guidelines range, it is
entitled to a presumption of reasonableness, and she has
the burden of overcoming this presumption. United
States v. Vizcarra, 668 F.3d 516, 527 (7th Cir. 2012). She
has not done so. The judge explained that the 57-month
sentence—at the upper end of the guidelines range—was
warranted based on the seriousness of the crime and
Grigsby’s role in it, and in particular, her repeated viola-
5
(...continued)
2010) (“[A]lthough § 3553(a) does not require a consideration
of co-defendant disparity, it is not improper for a district court
to undertake such a comparison.” (internal citation omitted));
see also United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir.
2007) (collecting cases).
28 No. 11-2473
tion of the trust placed in her by the bank. Grigsby
simply reiterates her argument that the district court
unjustifiably treated her more harshly than her co-
defendants. This is insufficient to rebut the presumption.
A FFIRMED.
8-29-12