United States v. Jason Dade

In the

United States Court of Appeals

For the Seventh Circuit

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No. 14-2072

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON DADE,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 CR 497-1 — Sharon Johnson Coleman, Judge.

____________________

ARGUED APRIL 28, 2015 — DECIDED JUNE 3, 2015

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Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge. Jason Dade, a former licensed real

estate agent, pleaded guilty to one count of bank fraud, 18

U.S.C. § 1344, for his role in helping prospective real estate

buyers assemble fraudulent mortgage loan applications. On

appeal Dade challenges one aspect of his sentence: He

contests the district court’s decision to apply a 2-level

upward adjustment for his aggravating role in the offense.

2 No. 14-2072

See U.S.S.G. § 3B1.1(c). Because the court did not clearly err

in applying the adjustment, we affirm.

I. Background

Over a four-year period, Dade, along with codefendants

Cheryl Ware, Tiffini Chism, and Tamika Peters, carried out a

mortgage-fraud scheme in which they facilitated bank loans

to purchase residential real estate by knowingly providing

lenders with false statements and documents. Dade referred

potential buyers, including Peters, to Ware and Chism, who

were loan officers. Dade provided Ware and Chism with

false documents—including payroll stubs and W-2 forms

from fake companies—so that unqualified buyers would be

approved for loans. On one occasion Dade (with Chism’s

help) refinanced a mortgage on a property he owned in

Chicago, Illinois. On his loan application Dade stated that he

was paying monthly rent of $1,450 (he did not live in the

house he was refinancing), and he backed up this claim with

a rental verification from “Jireh Development Corp.” Such

entity did not exist, and Dade was actually renting from his

mother-in-law for under $600 monthly. As a consequence of

this representation on the loan application, Dade was able to

receive a $156,000 loan from Fremont Investment & Loan.

Dade was charged with two counts of bank fraud, 18

U.S.C. § 1344, one count of wire fraud, id. § 1343, and two

counts of mail fraud, id. § 1341. He pleaded guilty to one

count of bank fraud based on the fraudulent refinancing of

his property. In exchange the government dismissed the

remaining four charges.

No. 14-2072 3

The government initially alerted Dade that it would seek

a 2-level upward adjustment for his role as an organizer,

leader, manager, or supervisor in the offense, see U.S.S.G.

§ 3B1.1(c). When preparing the presentence report, however,

the probation officer concluded that a 4-level upward

adjustment would be appropriate. According to the

probation officer, the scheme had involved five or more

participants (Dade, Chism, Ware, Peters, numerous buyers,

and James Wilson, who provided the fake documents). In

the probation officer’s view, Dade had organized the scheme

by obtaining false documents and referring buyers to Chism

and Ware.

The government then adopted the probation officer’s

position. In support the government recounted its version of

the facts underlying the charges dismissed as part of Dade’s

plea agreement. In Count Two (bank fraud) Chism had

referred “Buyer A” to Dade for help in finding two

investment properties. Dade encouraged Buyer A to acquire

a third property, and Chism told Dade how much income

Buyer A would need to qualify for another loan. Dade then

provided Chism with fake pay stubs and an employment

verification reflecting the necessary salary. In Count Three

(wire fraud) Dade had referred Peters to Ware, who

prepared a loan application using fake pay stubs provided

by Dade. In Count Four (mail fraud) Dade had directed

Peters to prepare a fake rent verification for “Buyer B.” And

in Count Five (mail fraud) Dade had refinanced another

residence he owned by providing a loan officer with fake

income tax returns and bank statements.

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Dade objected to the application of § 3B1.1. Citing United

States v. Weaver, 716 F.3d 439 (7th Cir. 2013), Dade argued

that the upward adjustment is appropriate only if the

defendant exercised authority, control, and ongoing

supervision over others and, according to Dade, he did not.

Dade argued that the government needed to show that he

had the ability to coerce, reward, or punish members of the

criminal enterprise; this requirement, he continued, was not

met by the probation officer’s assertion that he organized the

offense by obtaining false documents and referring buyers to

loan officers who prepared false applications.

The district court ultimately concluded that a 2-level

upward adjustment would adequately account for Dade’s

role in the offense. Dade was “clearly a leader,” the court

concluded, but “as to the amount of coercion considering the

roles of some of the other people involved,” only a 2-level

adjustment was warranted. With that adjustment, the court

calculated a total offense level of 24 and criminal history

category of I, yielding a guidelines imprisonment range of 51

to 63 months. The court then imposed a sentence of 20

months’ imprisonment.

II. Discussion

Despite Dade’s below-guidelines sentence, which is less

than half the low end of his guidelines range, he seeks

review and thus risks receiving a less favorable sentence if

successful on appeal. He principally contends that the

district court’s application of § 3B1.1(c) runs afoul of the

standard that this court purportedly outlined in Weaver. In

Weaver the government argued that the defendant, a

No. 14-2072 5

methamphetamine dealer, had exercised decision-making

authority and control over customers who were fronted

drugs and thus was a manager or supervisor under

§ 3B1.1(b). 716 F.3d at 440, 443. “For purposes of § 3B1.1,” we

clarified, “a defendant exercises control and authority over

another when he ‘tells people what to do and determines

whether they’ve done it.’” Id. at 443 (quoting United States v.

Figueroa, 682 F.3d 694, 697 (7th Cir. 2012)). Dade asserts that

the information in his presentence report—that he organized

the offense by obtaining false documents and referring

buyers to the codefendant loan officers—does not establish

“the type of coercion or control required by Weaver.”

We disagree with Dade’s reading of Weaver. First, Dade

interprets that decision to mean that an ability to coerce is

essential to apply § 3B1.1, but Weaver notes that coercion is

just one factor for the sentencing judge to consider in

making an otherwise “commonsense judgment about the

defendant’s relative culpability given his status in the

criminal hierarchy.” 716 F.3d at 443–44. Second, Dade

accepts that Weaver stands for the proposition that exercising

control means being able to dole out a reward or

punishment to inferiors, see id. at 444, and yet Dade ignores

that he rewarded Ware and Chism with continued business

that easily could have been withheld. In any event, Weaver

does not limit the adjustment to situations where there had

been a finding of control and coercion; that is just one

measure. In addition to exercising control, a defendant also

fits into one of § 3B1.1’s aggravating roles if he was

“responsible for organizing others for the purpose of

carrying out the crime.” United States v. Rosen, 726 F.3d 1017,

1025 (7th Cir. 2013) (internal quotation marks and citation

6 No. 14-2072

omitted); see United States v. Vasquez, 673 F.3d 680, 685 (7th

Cir. 2012); United States v. Knox, 624 F.3d 865, 874 (7th Cir.

2010); see also U.S.S.G. § 3B1.1 app. n.4 (listing degree of

control and authority as one of seven factors).

Dade has not argued that his conduct fell short of this

alternative standard. The government advances that it was

not clear error for the district court to apply the adjustment

because Dade referred buyers to codefendants Chism and

Ware, sometimes paid Ware, and provided these loan

officers with the fake documents used in the loan

applications. We agree with the government that the

evidence shows that Dade “influence[d] the criminal activity

by coordinating its members.” See United States v. Skoczen,

405 F.3d 537, 550 (7th Cir. 2005) (internal quotation marks

and citation omitted); see also United States v. Robertson, 662

F.3d 871, 877–78 (7th Cir. 2011) (concluding that § 3B1.1(c)

was appropriately applied to defendants in mortgage-fraud

scheme who provided buyers with money and fake

documents and instructed them to lie about source of funds);

United States v. Watts, 535 F.3d 650, 660 (7th Cir. 2008)

(upholding district court’s decision to apply § 3B1.1(c) based

on defendant recruiting his wife into bank-fraud scheme).

Thus, we conclude that the district court appropriately

applied the 2-level upward adjustment.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.