The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2946
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO GRACIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 98 CR 40125--G. Patrick Murphy, Chief Judge.
ARGUED May 17, 2001--DECIDED November 19, 2001
Before HARLINGTON WOOD, JR., KANNE, and
ROVNER, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.
Mario Gracia ("Gracia") appeals his jury
conviction and sentencing on counts of
conspiracy to commit bank fraud under 18
U.S.C. secs. 371 & 1344, bank fraud
under 18 U.S.C. sec. 1344, wire fraud
under 18 U.S.C. sec. 1343, and conspiracy
to commit money laundering under 18
U.S.C. sec. 1956(h). We have jurisdiction
under 28 U.S.C. sec. 1291, and we affirm
both the conviction and sentence.
I. BACKGROUND
Because most of Gracia’s arguments are
challenges to the factual findings and
sufficiency of the evidence, the facts,
as set forth in the trial transcript, are
presented in detail. In 1995, a group of
approximately fifteen inmates
incarcerated at the federal penitentiary
in Greenville, Illinois devised and
implemented an extensive check kiting
scheme. The scheme was masterminded by
prisoner Ernie Hill and included Jesus
Bonillas. Unable to conduct the bank
transactions themselves, Hill and the
inmates recruited numerous friends and
relatives outside of the prison. Hill
sent blank business checks to his half-
brother Michael Ochoa, who then filled
out the checks which were usually drawn
on the account of a closed or fictitious
mortgage company. The checks, most
written for tens of thousands of dollars,
were then sent directly to various banks
for deposit into the personal bank
accounts of individuals designated by
Hill or other co-conspirators.
Most of the personal bank accounts were
ones that had not been recently opened
and were in good standing. The account
holders were carefully instructed when to
withdraw funds. Hill or a co-conspirator
would wait until the worthless check was
deposited, then allow a certain amount of
time for the check to be posted. A posted
check makes the funds available in the
account but has not yet been honored (or,
in this case, always declined) by the
bank on which it was drawn. The account
holder was instructed to withdraw money
during this crucial period before the
check bounced. The money was then split
between Hill, Ochoa, and other
participants. The success of the scheme
greatly depended on precision timing,
which necessitated three-way calls to co
ordinate the withdrawals. Gracia’s brief
states that losses to the banks totaled
approximately $430,000.
Bonillas, who was married to Gracia’s
sister (who was also involved in the
scheme), recruited Gracia. Gracia
contacted his brother Frank ("Frank")/1
about participating. Both Gracia and
Frank resided in Tucson, Arizona. Frank
was instructed by Gracia to come to
Gracia’s home in order to take a
telephone call from Bonillas, who offered
to place a certain amount of money in
Frank’s bank account to be disbursed to
other parties as directed by Bonillas,
with Frank keeping a certain percentage.
Although Bonillas told Frank the money to
be deposited was money owed to himself
and other inmates, Frank testified that
he believed almost from the start that
this was a fraudulent scheme and was
convinced it was fraud by the time he
participated in the first transaction.
Two checks were eventually deposited in
Frank’s account, one for $20,300 and one
for $15,000. Frank was told by Bonillas
to withdraw $18,000 and to purchase two
cashier’s checks for $5,000 made payable
to Luisa Cardenas. At that same time,
Bonillas agreed that Frank could take
$3,000 of the money to purchase a
cashier’s check made payable to Frank’s
mortgage company. Bonillas also
instructed Frank to give $3,000 to
Gracia.
Frank sent the check to his mortgage
company but two days later the mortgage
company called to tell him the bank would
not honor the check. When this occurred,
Frank went to complain to his brother.
Gracia placed a call to Bonillas from his
home. Frank spoke with Bonillas and
threatened to go to the authorities about
the scheme if Bonillas did not give him
$3,000. Bonillas then asked to speak to
Gracia, who had remained in the room
during the call. After speaking to
Bonillas, Gracia left the room, returned,
and handed Frank $3,000 in cash. Several
days after a second fraudulent deposit
had been made in Frank’s account, the
bank closed his account.
The two cashier’s checks for $5,000 were
sent to Luisa Cardenas./2 Cardenas met
Hill sometime in 1989-90, when Hill and
her brother were incarcerated in the
federal prison in San Pedro, California.
Shortly after, she began "doing favors"
for Hill by setting up three-way phone
calls and receiving money from Western
Union wire transfers. Sometime in 1993-
94, she also began writing fraudulent
checks for Hill.
Cardenas received the two $5,000 checks
sent by Frank, but testified that she
refused to cash them because her name
would then become part of the paper trail
and that it would be too dangerous and
she might get caught. Gracia flew to Los
Angeles to meet Cardenas. At the airport,
Cardenas had a telephone conversation
with Hill, confirming that Gracia had
arrived to pick up the two checks.
Cardenas testified that Gracia questioned
her about how the operation worked. She
told him that Hill arranged for money to
be deposited into an account, then Hill
would tell him to withdraw a certain
amount and Gracia would get to keep half
of the total withdrawal. Gracia asked if
"anybody [had] gotten caught, anybody
gotten in trouble." She told him that as
far as she knew, "no one had gotten in
trouble or caught."
Upon his return to Tucson, Gracia
attempted unsuccessfully to cash the two
cashier’s checks. He went to a branch
bank where a relative-by-marriage worked
as a service manager. This relative
testified that she refused to cash the
two checks because they were not made out
to Gracia nor were they endorsed over to
him. The original uncashed checks were
submitted as evidence at trial.
In August of 1995, Gracia also went to
his nephew Phillip Mota and asked Mota to
send money to someone not known to Mota.
Gracia drove Mota to Western Union and
gave Mota approximately $5,000, with $200
to pay for the wiring fees. While Gracia
waited in the car, Mota was instructed to
send a $5,000 wire transfer to a Maria
Rolon./3 Gracia gave Mota $75 for his
help. Rolon, who had been recruited by
Hill, testified that she received several
checks like the one from Mota, totaling
approximately $60,000. She stated that
she kept about $10,000 out of that total
and forwarded the rest to various names
as instructed by Hill.
Also in August, Miguel Jimenez, an
inmate at the Fairview Heights, Illinois
state prison, contacted his niece, Angie
Jimenez Badilla ("Angie"), in Tucson and
told her he was sending someone to take
her to open a bank account in her name.
Angie was fifteen at the time and did not
drive. Although she was married, she and
her husband Daniel lived with Angie’s
mother. On August 17, 1995, Gracia, a
complete stranger to Angie, picked her up
along with her mother, drove them to a
branch bank in Green Valley, Arizona, and
gave Angie $150 in cash, telling her to
open an account while he waited in the
car. On August 21, two fraudulent
mortgage checks, one for $40,000 and one
for $29,000, were deposited in Angie’s
account. Although both checks were
endorsed with the name Angie Jimenez,
Angie testified that she had never
endorsed the checks.
Several days later, Gracia called Angie
and told her to take out as much money as
she could from her bank account. Gracia
met Angie outside the bank and questioned
her when she came out. Angie said that
the teller told her she could withdraw
$11,000, but as she was filling out the
paperwork, she was informed that the
account had been frozen. After telling
Gracia what happened, she returned home.
She was contacted by Gracia a day or two
later. He called her, then arrived at her
house, giving her a cashier’s check made
out to Enedino Egurrola,/4 Bonillas’
aunt, for $7,324.67. Gracia drove her to
a bank in Tucson and told her to cash the
check while he waited in the car. She re
turned with $7,324.67 in cash, which
Gracia took. He gave her $50 for her
cooperation. Another day or so later,
Gracia called Angie again and came to her
house. He drove both her and her husband
to Western Union. He gave Angie $3,000
plus the fee for the wire transfer, and
told her to send it to Delores Rolon
(Maria Rolon’s sister), someone unknown
to Angie.
Gracia also used Angie’s husband Daniel
for several transactions. On the first
occasion, Gracia came to the home of
Angie’s mother, where Angie and Daniel
were living. Daniel had never met Gracia.
Gracia asked Daniel to cash a $5,000
cashier’s check for him, which he then
filled out with Daniel’s name. Gracia
drove Daniel to the bank and waited
outside for Daniel to cash the check.
Gracia then took Daniel to Western Union,
giving Daniel the $5,000 plus $200 for
the wiring fee, and instructed him to
send a wire transfer to Cardenas. The
next day Gracia returned to Daniel’s
home, gave Daniel $4,000 plus
approximately $200 for the transfer fee,
took him to Western Union and instructed
him to wire the money to a Norma
Santos./5 Gracia paid Daniel $50 each
time for his assistance. Gracia contacted
Daniel one last time to tell Daniel that
he was going to put some money in
Daniel’s credit union account, explaining
to Daniel that it was money from some of
Gracia’s friends in jail who were owed
money. Gracia drove Daniel to the bank
after the checks had been deposited, but
when Daniel tried to make a withdrawal,
credit union officials informed him that
his account had been frozen.
Bonillas sent a fraudulent check for
$22,000 to be deposited in the account of
his elderly aunt, Egurrola, who also did
not speak English. Gracia supervised the
disbursement of the money. Egurrola
testified (through an interpreter) that
although Gracia did not accompany her to
the bank, he called her one morning to
inform her that the money had been
deposited in her account, instructed her
that she had to go and make the
withdrawal immediately, told her how much
to take out, who to send it to, and in
what form. She stated that Garcia
emphasized she was not to use his name in
any way. He then sent someone to her home
that same afternoon to pick up the
checks. Four days later the bank called
Egurrola and asked her to return the
money because the deposited check had
been identified as stolen. She contacted
Gracia and told him they had to return
the money. He told her that was not
possible. Two or three days after
learning of this transaction and the bank
recall, Egurrola’s daughter went to
confront Gracia. She accused him of
involving her mother in "some type of
fraud." He told her to keep away from
him, not to come to his house, and never
to call him because someone could be
tapping his telephone line. Gracia did
tell her he was trying to see if he could
get any money back but that it was money
Bonillas owed to others. He also told her
not to worry because the bank had
insurance. Gracia also had other
relatives and acquaintances cash checks
and wire money for him on several
occasions.
Gracia did not testify at trial and
called only one witness, criminal
attorney Robert Hirsh. Hirsh testified
that in early September of 1995, Gracia
retained Hirsch because Gracia was
concerned that law enforcement officers
had been investigating some of his
relatives. He told Hirsch that his
brother-in-law Bonillas had come into
some money while in prison and wanted
Gracia to assist him with some
transactions. Gracia told Hirsh that
Bonillas had assured him that the
activity "was on the up and up." At that
time, Gracia gave Hirsh the two cashier’s
checks made out to Cardenas. Hirsh
testified that he had lost Gracia’s file
except for the two checks and a letter.
Hirsch stated that the letter had been
sent from the state prosecutor’s office
in Tucson, requesting Gracia to come in
and be "debriefed" on the matter of the
bank transactions. The chief deputy of
the state prosecutor’s criminal division
testified at trial that there was no
record of Gracia having come to their
office. However, an FBI agent testified
that he had spoken to Hirsh, and Hirsh
had told him that Gracia would cooperate
with the authorities only if Gracia was
granted transactional immunity.
On July 20, 1999, a grand jury sitting
in the Southern District of Illinois
returned a twenty-one count superseding
indictment against fifteen defendants.
Gracia, who was named in four of the
twenty-one counts, pled not guilty. The
remaining fourteen defendants pled
guilty. Gracia’s jury trial began on
April 18, 2000, and he was convicted on
all four counts.
On July 24, 2000, the district court
entered judgment and adopted the
probation officer’s recommended finding
of facts in the Presentence Investigation
Report ("PSR"). Gracia filed several
objections to the PSR. At the sentencing
hearing, he presented no additional
evidence and he restated his objections
to the PSR. He maintained that while the
facts in the PSR were "basically
correct," he did not have the culpable
mental state required to be convicted of
conspiracy to commit money laundering
because the evidence showed that he was
merely an innocent dupe and was never
aware of the underlying illegality of his
actions. He objected to the recommended
enhancement as a manager or supervisor,
again because he was an innocent dupe,
and also objected to an enhancement for
using a minor to commit a crime, again
because he had no idea he was committing
an illegal act.
Gracia was sentenced pursuant to the
1998 United States Sentencing Guidelines
("U.S.S.G." or "the guidelines"). Under
U.S.S.G. sec. 3D1.3, when multiple crimes
are "closely related," the most serious
count is used to determine the base
offense level. In this case that count
was conspiracy to commit money
laundering, which had a base offense
level of 23. The court added a two-point
enhancement under sec. 3B1.4, on the
ground that Gracia’s offense involved the
use of a minor, and then added another
three points pursuant to sec. 3B1.1(b),
finding that Gracia was a "manager or
supervisor." Adding the two enhancements,
Gracia’s total offense level was 28. With
no previous criminal history, Gracia’s
criminal history category allowed for a
sentence ranging from 78-97 months.
Gracia was sentenced to 60 months
imprisonment for conspiracy to commit
bank fraud and 78 months on the other
three counts, with all sentences running
concurrently. Gracia was also ordered to
pay $142,500 in restitution.
Gracia argues four issues in his notice
of appeal: (1) that the district court
erred in denying his motion for a
directed verdict of acquittal on the
conspiracy to commit money laundering
because the government failed to present
sufficient evidence that Gracia entered
into any agreement with others to launder
money, or that he knew of the specific
objective of the conspiracy--that is,
money laundering; (2) that the district
court erred in applying U.S.S.G. sec.
2S1.1, applicable to money laundering
offenses, because Gracia’s charged
conduct did not fall within the
"heartland of conduct" covered by sec.
2S1.1; (3) that the district court erred
in enhancing Gracia’s sentence pursuant
to U.S.S.G. sec. 3B1.1(b) on the ground
that Gracia was a "manager or supervisor"
of a criminal activity involving five or
more participants; and (4) that the
district court erred in applying sec.
3B1.1(b) without making sufficient
findings of fact in support of its
decision.
II. ANALYSIS
A. Money Laundering Conspiracy
Gracia maintains that the government did
not produce sufficient evidence to
convict him of conspiracy to commit money
laundering, primarily because there was
no evidence of criminal intent. In
reviewing a sufficiency of the evidence
challenge after a conviction, the
evidence is viewed in the light most
favorable to the government in order to
determine whether "any rational trier of
fact could have found the essential
elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original).
Our review is highly deferential, see
United States v. Barnes, 230 F.3d 311,
314 (7th Cir. 2000), and a conviction is
reversed "only when the record is devoid
of any evidence, regardless of how it is
weighed, from which a jury could find
guilt beyond a reasonable doubt." United
States v. Garcia, 35 F.3d 1125, 1128 (7th
Cir. 1994).
Gracia was convicted of conspiracy to
commit money laundering in violation of
18 U.S.C. sec. 1956(h), which states,
"Any person who conspires to commit any
offense defined in this section or
section 1957 shall be subject to the same
penalties as those prescribed for the
offense the commis-sion of which was the
object of the conspiracy."/6 The object
of the conspiracy was money laundering in
violation of sec. 1956(a)(1), which
provides in pertinent part:
Whoever, knowing that the property
involved in a financial transaction
represents the proceeds of some form of
unlawful activity, conducts or attempts
to conduct such a financial transaction
which in fact involves the proceeds of
specified unlawful activity--
(A)(i) with the intent to promote the
carrying on of specified unlawful
activity; or . . .
(B) knowing that the transaction is
designed in whole or in part--
(i) to conceal or disguise the
nature, the location, the source, the
ownership, or the control of the proceeds
of specified unlawful activity; . . . .
Gracia argues that the government
"offered no evidence that [he] knowingly
agreed with others to participate in a
scheme to launder money, that [there was
no evidence] he used ’proceeds’ to
’promote’ the scheme, or that he knew
others were doing so," and that the case
against him was built solely on
inferences which were not grounded
inevidence. The question to be determined
is whether the government presented
sufficient evidence to demonstrate that
Gracia was knowingly involved with two or
more people for the purpose of money
laundering and that he knew the proceeds
used to further the scheme were derived
from an illegal activity.
The record states that Gracia supervised
multiple transactions with Angie and her
husband Daniel and with his nephew Philip
Mota. He also facilitated a transaction
with his brother Frank and one with
Bonillas’ aunt. In addition, there was
testimony that Gracia was involved in
obtaining the bank account numbers of two
other participants. There were
transcripts of telephone calls between
Gracia and both Hill and Bonillas. The
cumulative evidence reasonably indicates
that Gracia knew, or should have known,
he was involved in some kind of unlawful
activity: the fact that prison inmates
had sums in the amounts of $20,300,
$15,000, $40,000, $29,000, and $22,000 to
be deposited; the fact that the
withdrawals had to be made before the
deposited checks had time to be sent back
to the bank on which they were drawn; the
fact that he asked Cardenas if anybody
had gotten caught or in trouble; and the
fact that he told others not to come to
his house or contact him. Beyond all of
that, Gracia was there when his brother
Frank threatened to go to the authorities
and expose the scheme if Bonillas did not
give him $3,000. Yet Gracia continued to
participate. From these facts, a jury
could, and did, infer that Gracia knew
that he was involved in an illegal scheme
and that he and others were using
illegally obtained funds to continue the
scheme. Circumstantial evidence is
sufficient support, and may be the sole
support, for a conviction. See United
States v. Jackson, 983 F.2d 757, 766 (7th
Cir. 1993). The record provided
sufficient evidence for the jury to find
guilt beyond a reasonable doubt. This
finding renders Gracia’s resentencing
argument moot.
B. U.S.S.G. sec. 2S1.1
Gracia argues that even if our review
finds there was sufficient evidence to
convict him of conspiracy to commit money
laundering, because his conduct was "at
the most incidental to the wire and bank
fraud scheme run by the inmates," it
falls outside the "heartland" of cases
under sec. 2S1.1, and therefore, the
money laundering count should not have
been used to calculate his sentence.
Although the Supreme Court held that
appellate courts should review the
decision of a district court to depart
from the guidelines under an abuse of
discretion standard, see Koon v. United
States, 518 U.S. 81, 100 (1996)
(addressing "heartland" analysis),
because Gracia did not object to the
application of sec. 2S1.1 used by the PSR
and the district court to calculate his
sentence, we review only for plain error.
See United States v. Olano, 507 U.S. 725,
731 (1993); United States v. Nance, 236
F.3d 820, 824 (7th Cir. 2000), cert.
denied, ___ U.S. ___, 70 U.S.L.W. 3235
(U.S. Oct. 1, 2001) (No. 00-9633)
(applying plain error standard to any
argument raised for the first time on
appeal). To find a plain error, the error
must affect a defendant’s "substantial
rights" and have "seriously affected the
fairness, integrity, or public reputation
of the judicial proceedings." Nance, 236
F.3d at 824.
Under the guidelines, sec. 3D1.2
requires that "[a]ll counts involving
substantially the same harm shall be
grouped together into a single group."
The counts of conspiracy to commit bank
fraud, bank fraud, and wire fraud all
fall under sec. 2F1.1 of the guidelines
for crimes of fraud, with the fourth
count of conspiracy to commit money
laundering falling under sec. 2S1.1.
Section 3D1.2(d) specifies that offenses
covered by secs. 2F1.1 and 2S1.1 are
to be grouped together. Section 3D1.3(b)
further specifies that with a group of
closelyrelated counts under sec.
3D1.2(d), "[w]hen the counts involve
offenses of the same general type to
which different guidelines apply (e.g.,
theft and fraud), apply the offense
guideline that produces the highest
offense level." The base offense level
under sec. 2F1.1 was 6. Section 2S1.1
provides for a base offense level of 23
if a defendant is convicted of money
laundering under 18 U.S.C. sec.
1956(a)(1)(A). The guidelines mandated
using the base offense level of 23.
A sentencing court "may ask whether
there are features of the case that take
it out of the ’heartland’ of
casesanticipated in the Guidelines."
United States v. Crucean, 241 F.3d 895,
898 (7th Cir. 2001). The "heartland" of
cases is the "set of typical cases
embodying the conduct that each guideline
describes." Koon, 518 U.S. at 93 (quoting
U.S.S.G. ch. 1, pt. A(4)(b), intro. cmt.
4(b) (1995)). The guidelines "authorize
district courts to depart in cases that
feature aggravating or mitigating
circumstances of a kind not adequately
taken into consideration by the
[Sentencing] Commission," id. at 92; that
is, departure is allowed if "some unusual
feature of the case takes it out of the
heartland: the conduct at issue differs
significantly from the norm even though
the guideline linguistically applies."
United States v. Jaderany, 221 F.3d 989,
994-95 (7th Cir. 2000), cert. denied, 531
U.S. 1151 (2001) (citing Koon, 518 U.S.
at 93-95).
A departure from the specific relevant
guideline
is appropriate only in limited situations
where an unmentioned factor places a case
outside the heartland of cases
contemplated by both the specific,
relevant guideline(s) and the Guidelines
as a whole. The Sentencing Commission
views this departure power as quite
limited and expects "that departures
based on grounds not mentioned in the
Guidelines will be ’highly infrequent.’"
Koon, 518 U.S. at 94-96 (quoting U.S.S.G.
ch. 1, pt. A(4)(b), intro. cmt.)).
United States v. Schulte, 144 F.3d 1107,
1109-10 (7th Cir. 1998). However, Gracia
is not asking for a mere downward
departure but wants us to simply
disregard the money laundering count.
This same argument was addressed in
United States v. Buckowich, 243 F.3d 1081
(7th Cir. 2001). In Buckowich, the
defendant was convicted of wire fraud
under 18 U.S.C. sec. 1343 and unlawful
financial transactions under 18 U.S.C.
sec. 1957. Id. at 1082. Because the
guidelines treat sec. 1957 as a form of
money laundering, the district court used
the base offense level for money
laundering in U.S.S.G. sec. 2S1.2(a)
rather than the fraud count under sec.
2F1.1(a). Id. at 1083. Buckowich argued
that her circumstances were not within
the "heartland" of the applicable
guideline. Id. at 1084. Buckowich, as did
Gracia, relied on United States v. Woods,
159 F.3d 1132 (8th Cir. 1998). In Woods,
the money laundering consisted of
financial transactions which concealed
funds from the bankruptcy court. The
district court held that Woods’ offense
was a bankruptcy crime, therefore the
money laundering guideline did not apply
because "the underlying offense was . . .
fraud, and not drug trafficking or some
other offense typical of organized crime
[as intended under sec. 2S1.2]." Id. at
1134-35. The Eighth Circuit agreed.
However, the Seventh Circuit in Buckowich
rejected this line of reasoning, stating
that "Woods is incompatible with the law
of this circuit. Buckowich was convicted
of both wire fraud and money laundering;
the judge in sentencing must consider
both offenses and may not act as if the
defendant had been convicted of just
one." Buckowich, 243 F.3d at 1084
(emphasis in original).
Although not applicable to the 1998
guidelines used in Gracia’s case, we note
that as of November 1, 2000, the
Sentencing Commission amended the
Statutory Index (Appendix A), specifying
which guideline section applies to the
statutory conviction. The Commission
wrote:
The amendment modifies secs. 1B1.1(a),
1B1.2(a), and the Statutory Index’s
introductory commentary to clarify the
inter-relationship among these
provisions. The clarification is intended
to emphasize that the sentencing court
must apply the offense guideline
referenced in the Statutory Index for the
statute of conviction unless the case
falls within the limited "stipulation"
exception set forth in sec. 1B1.2(a).
Therefore, in order for the enhanced
penalties in sec. 2D1.2 to apply, the
defendant must be convicted of an offense
referenced to sec. 2D1.2, rather than
simply have engaged in conduct described
by that guideline. Furthermore, the
amendment deletes Application Note 3 of
sec. 1B1.2 (Applicable Guidelines) . . .
[which] note has been used by some courts
to permit a court to decline to use the
offense guideline referenced in the
Statutory Index in cases that were
allegedly "atypical" or "outside the
heartland."
U.S.S.G. App. C Supp., amend. 591, at 32
(2000) (emphasis added). This amendment
expressly rejects exceptions under the
"heartland" analysis.
The district court correctly determined
there were no unusual circumstances and
the facts of Gracia’s case fell within
the "heartland" of sec. 2S1.1. Gracia was
convicted of both fraud and money
laundering and, under the guidelines, his
base offense level must be the greater of
the two levels pursuant to the two
separate guidelines. The district court
did not err in setting Gracia’s base
offense level at 23.
C. U.S.S.G. sec. 3B1.1(b)
Gracia argues two issues under sec.
3B1.1(b): that the district court erred
in enhancing his sentence pursuant to
sec. 3B1.1(b) on the ground that he was a
"manager or supervisor" of a criminal
activity involving five or more
participants; and that the court did not
make sufficient findings of fact in
support of its decision. Gracia maintains
that "there is no way to conclude from
the trial record that Mr. Gracia was a
’manager or supervisor.’"
Section 3B1.1(b) states, "If the
defendant was a manager or supervisor
(but not an organizer or leader) and the
criminal activity involved five or more
participants or was otherwise extensive,
increase by 3 levels." A participant is
"a person who is criminally responsible
for the commission of the offense, but
need not have been convicted." U.S.S.G.
sec. 3B1.1, cmt. n.1. Whether a defendant
is a manager or supervisor is a question
of fact subject to the clearly errone-ous
standard of review. United States v.
Hall, 101 F.3d 1174, 1176 (7th Cir.
1996). A finding is "’clearly erroneous’
when although there is evidence to
support it, the review-ing court on the
entire evidence is left with the definite
and firm conviction that a mistake has
been committed." United States v. United
States Gypsum Co., 333 U.S. 364, 395
(1948).
"The central purpose of sec. 3B1.1(b) is
to punish a defendant for his relative
responsibility within a criminal
organization." United States v. Fones, 51
F.3d 663, 665 (7th Cir. 1995). If it is
determined that a defendant had no
greater role than any other participant,
he cannot receive a sec. 3B1.1 increase.
United States v. Mustread, 42 F.3d 1097,
1103 (7th Cir. 1994). In determining
whether a defendant played a greater role
as a manager or supervisor,
[f]actors 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 others.
U.S.S.G. sec. 3B1.1, cmt. n.4; Fones, 51
F.3d at 665 (list-ing cases). All factors
need not be present, but the defendant
must have "exercised some control over
others involved in the commission of the
offense." United States v. Pagan, 196
F.3d 884, 892 (7th Cir. 2000), cert.
denied, 530 U.S. 1283 (2000) (citing
United States v. House, 110 F.3d 1281,
1287 (7th Cir. 1997) (emphasis in
original)). It is sufficient that the
defendant orchestrated or coordinated the
activities of others. Fones, 51 F.3d at
666 (citations omitted). While the
criminal activity must involve five or
more participants, to qualify for the
increase as manager or supervisor, the
district court had to find that Gracia
had control over only one participant.
U.S.S.G. sec. 3B1.1, cmt. n.2; Fones, 51
F.3d at 668.
The PSR noted that Gracia directed and
supervised the actions of Angie, Daniel,
and Mota: driving Angie to the bank,
giving her money to open a bank account,
driving her to withdraw money, driving
her to cash a check and purchase money
orders; driving Daniel to the credit
union and instructing him to withdraw
money, taking Daniel to Western Union and
giving him money to send wire transfers
to individuals unknown to Daniel; and
giving money to Mota and driving him to
Western Union to place wire transfers on
two occasions. Although Angie, Daniel,
and Mota were not charged as co-
conspirators, all three testified at
Gracia’s trial as to the criminal scheme
in which they were involved. Gracia also
directed the actions of Bonillas’ aunt
and involved his own brother in the
conspiracy. Bonillas’ aunt also testified
concerning her involvement in the
conspiracy at Gracia’s trial. In
addition, as a mid-level manager, Gracia
provided or directed large sums of money
far greater than the $50 or $75 paid to
the minor participants and received a
correspondingly far larger share. Gracia
not only recruited participants and
claimed a larger share, but both the PSR
and the record provide more than
sufficient evidence that he coordinated
and orchestrated the activities of Angie,
Daniel, Mota, and Bonillas’ aunt. He had
a "real and direct influence" on those
participants in the conspiracy. Mustread,
42 F.3d at 1103. The district court made
no mistake in enhancing Gracia’s sentence
under sec. 3B1.1(b).
As to the findings of fact issue, it is
true that district courts are required to
make specific findings which present the
evidentiary basis for a sentencing
determination. See United States v.
Johnson, 999 F.2d 1192, 1197 (7th Cir.
1993). Although Gracia is correct that
the district court gave an abbreviated
explanation in finding Gracia was a
manager,/7 in addition to specifically
adopting the findings of the PSR at the
sentencing hearing, the district
courtrelied on the evidence presented at
trial and noted that the government "has
certainly carried its burden of proof by
a preponderance of the evidence regarding
[the sec. 3B1.1(b)] matters." This
circuit has held that the district court
"must adopt the PSR’s recommended
findings or make independent findings
sufficient to support its conclusion" in
applying an enhancement under sec.
3B1.1(b). United States v. Patel, 131
F.3d 1195, 1203 (7th Cir. 1997). The
district court not only adopted the
findings of the PSR, which in turn are
supported by the record, but referenced
the evidence from the trial record
concerning this enhancement when it noted
that the government had satisfied its
burden of proof. These statements make
the findings sufficiently clear to
support the sec. 3B1.1(b) enhancement.
III. CONCLUSION
For the above stated reasons, we AFFIRM
Gracia’s conviction and sentence.
FOOTNOTES
/1 The government indicted fifteen co-conspirators,
including Gracia. Gracia was the only defendant
who went to trial. The other fourteen, including
Frank, all pleaded guilty.
/2 Cardenas was also one of the fifteen indicted co-
conspirators who pled guilty.
/3 Rolon was also one of the fifteen indicted co-
conspirators.
/4 Although there are several spellings of her name
in the record, this is the way she spelled it out
at trial.
/5 Santos was also an indicted co-conspirator.
/6 Although the judgment indicates the conspiracy to
commit money laundering was charged under "18
U.S.C. secs. 1343, 2," Count 21 of the indict-
ment correctly reads "18 U.S.C. sec. 1956(h)--
Conspiracy to Commit Money Laundering."
/7 The district court’s only statements regarding
the sec. 3B1.1 enhancement were:
Now, similarly, [Gracia] was a mid-level manager.
In his own mind, he wasn’t, but that’s not the
mental statement [sic] required here. He was over
two or three people; maybe not in a formal sense
that we think of as a floor manager in a factory,
but in a legal sense, for purposes of the guide-
lines, he was a manager, so those objections have
to be overruled. The Government has certainly
carried its burden of proof by a preponderance of
the evidence regarding these matters.