United States v. Leslie Anderson

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2925

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

L ESLIE A NDERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:04-cr-30111-WDS-3—William D. Stiehl, Judge.

A RGUED M AY 5, 2009—D ECIDED S EPTEMBER 3, 2009

Before R IPPLE and SYKES, Circuit Judges, and L AWRENCE,

District Judge.Œ

R IPPLE, Circuit Judge. As a result of his involvement with

a fraudulent telemarketing scheme, Leslie Anderson

was charged with wire fraud, mail fraud and conspiring to

commit an offense against the United States. After a five-

Œ

The Honorable William T. Lawrence, District Judge for the

Southern District of Indiana, is sitting by designation.

2 No. 08-2925

day trial, Mr. Anderson moved for a judgment of acquit-

tal. The district court denied the motion, and the

jury convicted Mr. Anderson on each of the twenty-

four counts charged. At his sentencing hearing,

Mr. Anderson raised a number of objections to the sen-

tencing enhancements recommended by the Government,

but the district court, with two exceptions, applied the

recommended enhancements. As a result, the court

determined Mr. Anderson’s adjusted offense level to be

42 and his criminal history category to be I. The court

departed from the recommended sentencing range,

imposing a below-guidelines sentence of 280 months’

imprisonment. Mr. Anderson now appeals. He claims

that the evidence presented at trial was insufficient to

support the jury’s verdict; he also raises a number of

challenges to his sentence. For the reasons set forth in

this opinion, we affirm the judgment of the district court.

I

BACKGROUND

A.

On May 17, 2005, Mr. Anderson was charged with

several offenses arising out of his involvement with

1492828 Ontario, Inc., a Canadian telemarketing company

doing business as First Capital Consumers Group (“First

Capital”). Specifically, Mr. Anderson was charged with

one count of conspiracy, in violation of 18 U.S.C. § 371,

five counts of mail fraud, in violation of 18 U.S.C. § 1341,

and eighteen counts of wire fraud, in violation of 18

No. 08-2925 3

U.S.C. § 1343. At Mr. Anderson’s jury trial, the Govern-

ment presented the following evidence.

1. The Creation of First Capital

Mr. Anderson, a Canadian citizen, became acquainted

with David Dalglish through Mr. Anderson’s Toronto-

based home improvement business. Dalglish helped

Mr. Anderson secure a lucrative contract with the city

of Toronto, and Mr. Anderson, in return, loaned Dalglish

a large sum of money so that Dalglish could open

up a telemarketing business with his friend, Lloyd

Prudenza. That business ultimately became known as

First Capital.

By way of background, Dalglish had worked with

Prudenza in the past. Specifically, Prudenza ran

Consumer Credit Services (“CCS”), a telemarketing

business that sold a “credit repair program” to individuals

with poor credit histories. R.196 at 82-83. After a CCS

telemarketer sold the product to a customer, a “verifier”

from Vertech, an affiliate of CCS, would contact the

customer, confirm the details of the purchase and obtain

the customer’s authorization to debit the customer’s

bank account. Id. at 83-85; R.199 at 145.

Dalglish hired Mark Lennox, a former Vertech em-

ployee, to work for First Capital. Dalglish informed Mr.

Anderson of the hire and explained that Lennox was the

“top verifier” at Vertech. R.199 at 145. He also informed

Mr. Anderson that he needed additional funds for First

Capital. In response, Mr. Anderson contributed an addi-

4 No. 08-2925

tional $20,000 to the company, this time in the form of

an equity investment.

In 2001, Lennox, Dalglish and Mr. Anderson met to

discuss First Capital’s business model. Lennox explained

to Dalglish and Mr. Anderson that First Capital would

hold itself out as a “credit recovery business” that

sold “benefits packages” to consumers. These benefits

packages included coupons, brochures, a credit-repair

guide and a “stored-value card.” The stored-value card

bore a MasterCard logo, but it was not a credit card

because it had no independent purchasing power.

Instead, before making a purchase, a user first was re-

quired to credit funds to the stored-value card. The user’s

purchasing power was limited to the amount of funds

he had credited to the card in advance of the purchase.

Lennox explained that the stored-value cards were the

most important part of First Capital’s benefits packages

because they allowed First Capital’s salespersons to tell

its customers that they would receive a MasterCard with

their benefits packages. The customers would then

assume that they would be receiving credit cards that

permitted them to make purchases that could be paid

for later, either by a single payment or by a payment plan.

According to Lennox, stored-value cards were a rela-

tively new concept in 2001. Therefore, Lennox claimed,

“if you said to somebody that it was a bank card and it

was a MasterCard, 100 percent would assume that you

were talking about a credit vehicle, [and] that this thing

had a credit limit to it. And we knew that, so this was a . . .

huge advantage.” R.196 at 93. Lennox also testified that

No. 08-2925 5

he had informed Mr. Anderson that a stored-value

MasterCard would be included in the benefits packages.

Lennox knew that Mr. Anderson would be responsible

for approving his salary and other compensation, and

he hoped that, by using the MasterCard as a “selling

point,” he could procure a large signing bonus. Id. at 92-95.

After that first meeting, Mr. Anderson wrote a letter to

the Mill Haven Penal Institution, where Prudenza was

serving a sentence for conspiracy to commit fraud, in

order to facilitate Prudenza’s early release on parole.

Prudenza testified that, as part of his application for

parole, he was required to “establish a game plan for

[his] release.” R.198 at 29. Mr. Anderson “provided [him]

with a letter of employment to fit that game plan.” Id.

Shortly after Prudenza’s release, he, Dalglish and Mr.

Anderson met at Mr. Anderson’s office. Prudenza

brought his fiancee, Lesley McCloud, to the meeting,

but she left after Mr. Anderson complained about her

presence. Later, Mr. Anderson explained to Prudenza

that “he didn’t want women around when we’re talking

about things that . . . are illegal. . . . Because they would

turn around and would rat on the situation.” Id. at 32-33.

Prudenza testified that, at the meeting, he and Mr.

Anderson discussed his incarceration and his criminal

offense; he claimed that Mr. Anderson “knew . . . what

[he had] been in jail for,” and explained that his

telemarketing experience and criminal conviction were

an “enticement to bringing [him] aboard.” R.199 at 49, 50.

Prudenza further testified that everyone at the meeting,

including Mr. Anderson, understood that they did not

6 No. 08-2925

have, and could not obtain, authorization to sell any

type of MasterCard. He noted that, at the meeting,

Mr. Anderson reviewed a sample “sales script”1 and

described the script as a “good gaff” 2 and a “good con.”

R.198 at 35, 39. In addition, Prudenza claimed that he

discussed the possibility of police intervention with

Mr. Anderson, telling him that they had to do things

“in a certain way to avoid being caught right away.” Id.

at 37-38.

Later, after First Capital had begun preliminary opera-

tions, Lennox, Dalglish, Prudenza and Mr. Anderson

met to discuss the sales scripts for telemarketers and

verifiers. Lennox testified that he went over the scripts

while Mr. Anderson was present. He testified that the

scripts were intended to deceive First Capital’s

customers by convincing them that they would receive

a credit card from a major bank in exchange for a fee.

2. First Capital’s Business Operations

First Capital hired hundreds of telemarketing sales

representatives who placed telephone calls from Toronto

1

These “sales scripts” were written sales pitches that

telemarketers used when soliciting or verifying a sale. The

scripts reviewed at the meeting were substantially similar

to those later used by First Capital.

2

Prudenza explained that a “gaff” is a scam, con or rip-off.

No. 08-2925 7

to United States residents with poor credit histories.3 The

representatives, using First Capital’s sales scripts, would

suggest that First Capital could help its customers

obtain credit cards in exchange for a fee. When a

customer accepted First Capital’s offer, a verifier would

make a second call to the customer in order to obtain

the customer’s bank account information and the cus-

tomer’s permission to make an electronic funds transfer

from the customer’s bank account. The second call was

recorded.

After receiving the customer’s authorization and

account information, the verifier would cause funds to

be transferred out of the customer’s bank account

through an automated clearing house (“ACH”). First

Capital used three ACHs during the course of its opera-

tion—ACH Direct, United Capturedyne Technologies

(“UCT”) and Check Recovery Systems (“CRS”). Mr.

Anderson helped Dalglish and Prudenza establish a

business relationship with ACH Direct. R.197 at 21-22;

R.200 at 64-65. The relationship between First Capital

and ACH Direct was short-lived, however, because

ACH Direct received a large number of complaints from

dissatisfied First Capital customers. From November 2001

through the summer of 2002, First Capital processed its

electronic transfers through UCT. Like ACH Direct, UCT

received a number of complaints and ceased providing

3

First Capital obtained the contact information for these

individuals by purchasing “leads lists” from list brokers in

the United States.

8 No. 08-2925

services for First Capital. After First Capital’s relationship

with UCT ended, First Capital’s managers and assistant

managers—including Mr. Anderson, Dalglish, Prudenza

and Lennox—met to discuss their problems with ACH

Direct and UCT and to attempt to find a new processor.4

First Capital then turned to CRS for ACH processing;

that company also received numerous complaints from

customers who had received no product, who had not

received the product they were promised or who could

not contact First Capital. R.197 at 40-42. These com-

plaints were summarized in call logs that were later sent

to First Capital.

At the height of its operations, First Capital had 250

employees. Lennox estimated that First Capital placed at

least 10,000 telemarketing calls each week, resulting in

about 500 successful sales per week. Over the course of

its operation, First Capital defrauded approximately

40,000 victims out of more than $8 million.

3. Mr. Anderson’s Role in First Capital

The Government presented evidence that Mr. Anderson

held a position of authority in First Capital. Specifically, it

introduced evidence of a September 2001 meeting at

Toronto Dominion Bank, where Mr. Anderson intro-

duced Dalglish to Gary Shaswell, the bank manager.

Together, they set up a business account for First Capital.

4

At that same meeting, Lennox distributed new sales scripts

and leads lists.

No. 08-2925 9

During that meeting, Dalglish submitted a copy of First

Capital’s articles of incorporation; Mr. Anderson’s name

was listed on the articles as a director of the company.

Dalglish also told Shaswell that Mr. Anderson was the

president of the company. Although Mr. Anderson later

claimed to have been surprised by Dalglish’s statement

and denied agreeing to serve as First Capital’s president,

he did not object to or correct any of Dalglish’s representa-

tions to Shaswell. During the meeting, Mr. Anderson

signed a number of documents which named him as a

principal of the corporation, president of First Capital

and a signatory on First Capital’s account. R.199 at 152-55;

R.200 at 34-41.

The Government also presented evidence that, in addi-

tion to being listed as president and principal, Mr. Ander-

son was considered a partner in First Capital; Mr. Ander-

son, Dalglish and Prudenza agreed that, after Mr. Ander-

son’s initial loan to the company was repaid, they would

divide First Capital’s remaining profits between them-

selves. Prudenza testified that, during one meeting, he,

Dalglish and Mr. Anderson each received a $400,000

share of First Capital’s $1.2 million profit.5

Prudenza testified that Mr. Anderson’s role in First

Capital was primarily financial, as opposed to managerial.

Mr. Anderson provided the startup funds for First Capital

5

Prudenza indicated that, by this point, Mr. Anderson’s initial

loan to First Capital had been repaid. R.198 at 59. An earlier

check, dated January 18, 2002, represented a partial repay-

ment of that loan.

10 No. 08-2925

and handled First Capital’s finances. He signed invoices

and authorized payments for leads lists and benefits

packages. R.197 at 35-39. In addition, several documents

recording wire transfers made on First Capital’s behalf

bore Mr. Anderson’s signature, although Mr. Anderson

did not recall signing the documents. R.199 at 157.

Mr. Anderson’s contributions to First Capital were not

solely financial, however. For example, Mr. Anderson

regularly met with Prudenza to discuss First Capital’s

operations, and he attended at least two managers’ meet-

ings where First Capital’s sales pitch, verification

problems and sales issues were discussed. Mr. Anderson

also admitted that he had performed work on First Capi-

tal’s offices, leased vehicles to First Capital and provided

cell phones to Dalglish, Prudenza and two others.

R.199 at 166; R.200 at 4-5. Furthermore, in August or

September 2002, Mr. Anderson was left in charge of

First Capital and oversaw all of the company’s opera-

tions while Prudenza and Dalglish were vacationing

in Italy. During that time period, Mr. Anderson

signed payroll checks and authorized wire transactions

for leads-list purchases.

The Government also introduced evidence pertaining

to whether Mr. Anderson knew of the illegal nature of

First Capital’s activities. For example, Prudenza testified

that Mr. Anderson took an active interest in First

Capital’s sales and “knew overall of what was going on”

at First Capital. R.198 at 49-51, 54. According to

Prudenza, Mr. Anderson knew that First Capital was

misleading its customers: Prudenza testified that, after

No. 08-2925 11

the sales scripts were discussed during his first meeting

with Mr. Anderson, Mr. Anderson asked, “Are Americans

that stupid?” R.198 at 37. Prudenza also stated that he

had informed Mr. Anderson of the complaints from the

ACH companies and that he specifically had informed

Mr. Anderson that First Capital had received complaints

from customers who either had not received their credit

repair packages or had not received what they had been

promised. In addition, Stephen Simpson, one of Mr.

Anderson’s employees, testified that Mr. Anderson

showed him a $400,000 check dated September 20, 2002.

According to Simpson, Mr. Anderson “kissed [the check],

put it in his pocket and he said, ‘Thank God for stupid

Americans.’ ” R.199 at 87.

B.

At the conclusion of the trial, Mr. Anderson filed a

motion for a judgment of acquittal. The district court

denied the motion. The jury found Mr. Anderson guilty

on each of the counts charged against him.

At Mr. Anderson’s sentencing hearing, the district court

determined that Mr. Anderson’s base offense level was 7

and his criminal history category was I. The court

then applied the following sentencing enhancements: A

twenty-level enhancement because the total loss

resulting from the fraud was $8,273,893.50;6 a six-level

increase because the fraud involved more than 250

6

R.183 at 31; see U.S.S.G. § 2B1.1(b)(1)(K).

12 No. 08-2925

victims; a two-level enhancement because the fraud

targeted vulnerable victims; a two-level enhancement

because a substantial part of the offense was committed

outside the United States; a three-level enhancement

based on Mr. Anderson’s status as a manager or super-

visor of the scheme;7 and a two-level enhancement for

obstruction of justice. 8 As a result, Mr. Anderson’s

adjusted offense level was 42, and the Guidelines recom-

mended a sentencing range of 360 months to life impris-

onment. The court imposed a below-guidelines sentence

of 280 months’ imprisonment.

II

DISCUSSION

Mr. Anderson appeals both his conviction and his

sentence. He first contends that the Government failed to

present sufficient evidence to prove that he possessed

the knowledge or intent necessary to be guilty of the

charged crimes. He also challenges the sentence

imposed by the district court, arguing that the court

improperly applied various sentencing enhancements

and contending that the sentence imposed by the

district court was unreasonable. We address each of

these arguments in turn.

7

U.S.S.G. § 3B1.1(b).

8

U.S.S.G. § 3C1.1.

No. 08-2925 13

A.

Mr. Anderson first challenges the sufficiency of the

evidence presented at trial, claiming that the Govern-

ment failed to prove certain essential elements of the

charged crimes. Mr. Anderson notes that, to support his

conviction for mail and wire fraud, the Government was

required to demonstrate that he knowingly participated

in a fraudulent scheme with the specific intent to deceive

or cheat the scheme’s victims. See United States v.

Radziszewski, 474 F.3d 480, 484-85 (7th Cir. 2007).

Similarly, he points out that, to support his conspiracy

conviction, the Government was required to prove that

he knew of the essential nature and scope of the charged

conspiracy and that he intended to participate in it.

See United States v. Bruun, 809 F.2d 397, 410 (7th Cir. 1987).9

Mr. Anderson contends that the evidence presented at

trial failed to establish that he possessed either the knowl-

edge or the intent necessary to be guilty of the charged

crimes. In support of this contention, he attacks the credi-

bility of Lennox and Prudenza and claims that their

testimony was not sufficiently specific to support a

finding that he knowingly and intentionally participated

in the fraudulent scheme. Mr. Anderson also claims that

9

See also United States v. Campbell, 985 F.2d 341, 344-45 (7th Cir.

1993) (noting that, to prove that a defendant was a member of

the conspiracy, “the Government must offer sufficient evidence

to demonstrate that the defendant knew of the conspiracy

and that he intended to join and associate himself with its

criminal design and purpose” (citation omitted)).

14 No. 08-2925

his own testimony demonstrates that he lacked any

criminal intent. At trial, Mr. Anderson claimed that he

never read or discussed the sales scripts, that he was

unaware that First Capital would offer stored-value cards,

and that, by virtue of his passive role in First Capital, he

was unaware of the fraudulent nature of First Capital’s

activities. He characterizes himself as a mere pawn in

Dalglish and Prudenza’s scheme, and he asserts that,

had he known that First Capital was an illegal scam, he

would have had nothing to do with it.

When reviewing a challenge to the sufficiency of the

evidence, “we will only reverse a defendant’s conviction

if, viewing all evidence in the light most favorable to the

government, no rational trier of fact could have found

the defendant guilty of the charges beyond a reasonable

doubt.” Radziszewski, 474 F.3d at 484 (citation omitted). In

raising such a challenge, Mr. Anderson faces a heavy

burden; we shall not reverse his conviction unless there

is no evidence from which a jury could have found him

guilty of the charged offenses. See United States v. Silva,

781 F.2d 106, 108 (7th Cir. 1986).

In an attempt to satisfy this burden, Mr. Anderson

contends that the jury should have disregarded the testi-

mony of Lennox and Prudenza and instead should have

credited his own version of the facts. This contention

cannot succeed. “We repeatedly have refused to ques-

tion the credibility of witnesses” when reviewing

sufficiency-of-the-evidence challenges. United States v.

Roberts, 534 F.3d 560, 569 (7th Cir. 2008). It is the province

of the jury to assess the credibility of witnesses, and

No. 08-2925 15

we shall reverse such credibility determinations “only

under exceptional circumstances, such as where 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.” Radziszewski, 474 F.3d at 485 (citations and quotation

marks omitted). Mr. Anderson has pointed to no excep-

tional circumstances here, and the jury was therefore

entitled to credit the testimony of Lennox and Prudenza.

We believe that the evidence presented at trial was

sufficient to support the jury’s verdict. The Government

presented evidence that supports the conclusion that

Mr. Anderson knew that First Capital was engaged in

fraudulent activity. For example, Prudenza testified that

he met with Mr. Anderson on a weekly basis to discuss

First Capital’s operations. He further testified that

Mr. Anderson knew that First Capital was misleading its

customers. Also, according to Prudenza, Mr. Anderson

expressly acknowledged the illegal and fraudulent nature

of the scheme.10 The Government also presented circum-

stantial evidence that Mr. Anderson knowingly and

intentionally joined the fraudulent activity. According to

10

See R.198 at 32 (noting that Mr. Anderson “didn’t want

women around when we’re talking about doing things that . . .

are illegal”); Id. at 35 (describing the sales script as a “good

con”); see also id. at 37 (testifying that, after discussing the

sales scripts, Mr. Anderson asked “Are Americans that stu-

pid?”); R.199 at 87 (testimony of Stephen Simpson) (stating

that Mr. Anderson displayed a $400,000 check, kissed it and

said “Thank God for stupid Americans”).

16 No. 08-2925

the testimony elicited at trial, Mr. Anderson was present

at several meetings where leads lists, sales scripts and

customer complaints were discussed. In addition, Mr.

Anderson was the named president of First Capital, held

authority over First Capital’s finances, and authorized

payments for leads lists and benefits packages. Mr. Ander-

son also established First Capital’s business checking

account, worked on First Capital’s offices, leased vehicles

to the company, and provided cell phones to its man-

agers. Furthermore, Mr. Anderson managed First Capital

while Prudenza and Dalglish were absent, and he received

at least $400,000 from the conspiracy’s proceeds.

Contrary to Mr. Anderson’s assertions, this evidence

demonstrates that Mr. Anderson was more than a

mere associate of Dalglish, Prudenza and the other par-

ticipants in the scheme. Rather than simply being present

at a few meetings where illegal activities were discussed,

cf. United States v. Baker, 499 F.2d 845, 847 (7th Cir. 1974),1 1

11

In United States v. Baker, 499 F.2d 845, 849 (7th Cir. 1974), we

concluded that defendant Vela’s act of driving two individuals

to the site of a drug sale and his presence during two con-

versations where the purchase of drugs was discussed could not

support his conspiracy conviction. Significantly, we noted that,

although Vela was present during the two conversations, he

“engaged only in ‘small talk’ and did not participate in the

conversation on drug dealing.” Id. at 847. Thus, the facts of

that case differ from the facts presented here; as we have

already indicated, the testimony presented at trial demon-

strates that Mr. Anderson actively participated in the meetings

(continued...)

No. 08-2925 17

Mr. Anderson took an active role in First Capital, took

steps to advance its activities and received a one-third

share of its profits. A reasonable jury could have con-

cluded, based on this evidence, that Mr. Anderson

acted with knowledge of First Capital’s fraudulent

activity and with the specific intent to defraud First Capi-

tal’s victims. See Radziszewski, 474 F.3d at 485 (noting

that documentary evidence showed that funds from the

fraudulent scheme were deposited into an account con-

trolled by the defendant and concluding that this and

other evidence demonstrated that the defendant was a

knowing participant in the scheme).1 2 We therefore con-

clude that evidence presented at trial adequately sup-

ports Mr. Anderson’s conviction.

11

(...continued)

and conversations where First Capital’s operations were

discussed.

12

See also United States v. Silva, 781 F.2d 106, 109 (7th Cir. 1986)

(holding that the defendant’s false report that his vehicle had

been stolen, his false representation that he had driven the

vehicle on a certain date, and the fact that he insured the

vehicle for $23,000, even though he owed only $6,000, were

sufficient to demonstrate that the defendant intended to

further the conspiracy); United States v. Garcia, 562 F.2d 411, 414

(7th Cir. 1977) (concluding that a jury could infer that the

defendant participated in the conspiracy where the defendant

was found in possession of proceeds from a drug transaction

after he put a drug purchaser in contact with his brother,

who dealt drugs).

18 No. 08-2925

B.

We now turn to Mr. Anderson’s challenges to the

sentence imposed by the district court. Mr. Anderson

challenges the district court’s application of a two-level

sentencing enhancement for obstruction of justice and a

three-level enhancement based on his role in the conspir-

acy. He further contends that the sentence imposed by

the district court was unreasonable.

1. The Obstruction-Of-Justice Enhancement

Mr. Anderson asserts that he should not have received a

sentencing enhancement under U.S.S.G. § 3C1.1, which

provides for a two-level enhancement when a defendant

obstructs or attempts to obstruct the investigation, prose-

cution, or sentencing of the charged crime. Id. He main-

tains that his testimony at trial amounted to no more

than a simple denial of guilt, which, he claims, cannot

support the application of the obstruction-of-justice

enhancement.

We review the factual findings underlying the district

court’s application of the obstruction enhancement for

clear error, and we review de novo whether those

findings adequately support the enhancement. United

States v. House, 551 F.3d 694, 697 (7th Cir. 2008). As we

previously have noted, a district court may impose an

obstruction-of-justice enhancement based on its con-

clusion that a defendant committed perjury at trial.

United States v. Williams, 553 F.3d 1073, 1081 (7th Cir.),

No. 08-2925 19

cert. denied, 129 S. Ct. 2452 (2009).1 3 Thus, if a district court

finds that a defendant “gave 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,” the application of an ob-

struction enhancement is warranted. United States v.

Hach, 162 F.3d 937, 949 (7th Cir. 1998) (citations and

quotation marks omitted).

Before applying the obstruction-of-justice enhance-

ment, the district court gave considerable thought to

Mr. Anderson’s objection to the enhancement and con-

ducted a review of its trial notes. The court then concluded

that although, at first, Mr. Anderson was not apprised

fully of the nature of First Capital’s activities, he never-

theless learned a great deal about First Capital, assisted

the company and agreed to serve as its president. R.183

at 14. The court further concluded that Mr. Anderson

“did know what [the] business was and became a part

of it,” and it specifically “[found] that [Mr. Anderson]

did in fact testify falsely at trial.” Id. at 15.

Given these judicial findings, we cannot accept

Mr. Anderson’s challenge to this enhancement. The

court did not predicate its application of the enhance-

ment on Mr. Anderson’s mere denial of guilt. Instead,

after comparing Mr. Anderson’s testimony with the

evidence presented by the Government, the district court

13

See U.S.S.G. § 3C1.1 cmt. n.4 (“Note 4”) (listing “committing,

suborning, or attempting to suborn perjury” as an “example[]

of the type[] of conduct to which [the obstruction] adjustment

applies”).

20 No. 08-2925

determined that Mr. Anderson testified falsely at trial.

It therefore concluded that Mr. Anderson willfully ob-

structed justice by falsely denying any knowledge of the

criminal nature of the enterprise. See, e.g., United States v.

Godinez, 110 F.3d 448, 457 (7th Cir. 1997) (concluding

that the defendant’s “denial of any knowledge that

there was a cocaine transaction going on” was “not

the same as a general denial of guilt” and rejecting the

defendant’s sentencing challenge). Given the evidence

against Mr. Anderson, we cannot say that this con-

clusion was clearly erroneous. The district court

properly identified the false testimony supporting the

enhancement and made an independent finding of

perjury; having done so, it was permitted to impose the

enhancement. See United States v. Banks-Giombetti, 245

F.3d 949, 954 (7th Cir. 2001) (concluding that the district

court did not err in applying an obstruction-of-justice

enhancement when it “credited the testimony of the

[witnesses] over [the defendant’s] and found by a pre-

ponderance of the evidence that [the defendant’s] testi-

mony was both false and material”); United States v.

Ofcky, 237 F.3d 904, 910 (7th Cir. 2001) (holding that the

district court “met all the standards required for the

[obstruction-of-justice] enhancement” when it weighed

the conflicting testimony and concluded that the

defendant committed perjury).

2. The Manager-Or-Supervisor Enhancement

Mr. Anderson also challenges the district court’s ap-

plication of a sentencing enhancement pursuant to

No. 08-2925 21

U.S.S.G. § 3B1.1(b), which authorizes a three-level en-

hancement when a defendant acted as a manager or

supervisor of a criminal activity. We review the district

court’s finding that Mr. Anderson exercised a managerial

or supervisory role in the offense for clear error. United

States v. Sainz-Preciado, 566 F.3d 708, 714 (7th Cir. 2009).

To qualify for an enhancement under section 3B1.1, a

defendant “must have been the organizer, leader, manager,

or supervisor of one or more other participants” in the

charged criminal activity.1 4 U.S.S.G. § 3B1.1 cmt. n.2. The

Guidelines do not define the terms “manager” and

“supervisor.” The commentary to section 3B1.1, however,

does set forth several factors that this court may use to

ascertain whether an individual had a supervisory role

in an offense. United States v. Howell, 527 F.3d 646, 649

(7th Cir. 2008).15 Those factors include:

(1) the exercise of decision-making authority; (2) the

nature of participation in the commission of the of-

fense; (3) the recruitment of accomplices; (4) the

claimed right to a larger share of the fruits of the crime;

14

For the purposes of that section, a “ ’participant’ is a person

who is criminally responsible for the commission of the offense,”

although the person need not have been convicted. U.S.S.G.

§ 3B1.1 cmt. n.1.

15

Although the factors enumerated in the commentary were

designed to assist courts in distinguishing leaders from man-

agers, we also have “found that they are . . . relevant in ascer-

taining whether an individual had a supervisory role at all.”

United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008) (citation

omitted).

22 No. 08-2925

(5) the degree of participation in planning and organiz-

ing the offense; (6) the nature and scope of the

illegal activity; (7) the degree of control and authority

exercised over others.

Id. (citing U.S.S.G. § 3B1.1 cmt. n.4). “No one of these

factors is considered a prerequisite to the enhancement,

and, at the same time, the factors are not necessarily

entitled to equal weight.” United States v. Wasz, 450 F.3d

720, 729 (7th Cir. 2006). Although not all of these factors

must be present, the enhancement cannot be applied

unless the defendant “ ‘exercised some control over

others involved in the commission of the offense.’ ” United

States v. Gracia, 272 F.3d 866, 877 (7th Cir. 2001) (quoting

United States v. Pagan, 196 F.3d 884, 892 (7th Cir. 1999)).

Mr. Anderson claims that the Government presented no

evidence that he exercised any influence or control over

Prudenza, Dalglish or any other participants in the con-

spiracy. We disagree. There are many facts—several of

which fit into one or more of the categories enumerated

in Note 4—that support the district court’s finding that

Mr. Anderson managed or supervised one or more par-

ticipants in the conspiracy. First, there is evidence that

Mr. Anderson exercised decision-making authority over

participants in the scheme: Lennox testified that

Mr. Anderson approved his salary and signing bonus,

R.196 at 93-95,16 and Prudenza stated that Mr. Anderson

16

This testimony supports the district court’s conclusion in

two ways: First, it demonstrates that Mr. Anderson had the

authority to decide how much compensation Lennox, a non-

(continued...)

No. 08-2925 23

16

(...continued)

partner participant in the conspiracy, would receive for his

role in the scheme. Second, it suggests that Mr. Anderson

was Lennox’s boss, rather than his equal, thus supporting the

court’s conclusion that Mr. Anderson supervised at least one

participant. See United States v. Polichemi, 219 F.3d 698, 712

(7th Cir. 2000) (“Although the court did not find this fact

explicitly, its discussion of Neal’s relationship to Edward

Russey and Larry Oesterman indicates that it found the neces-

sary supervision. Neal was president of Konex Marketing,

and Russey and Oesterman were salesmen for the company. As

such, Neal was their boss, not their equal.”).

Although Lennox was initially listed in the criminal com-

plaint, see R.1 at 1, it appears that he was granted immunity in

exchange for his cooperation. See R.196 at 23; R.197 at 61-67;

R.200 at 119. Nevertheless, the fact that Lennox was not ulti-

mately prosecuted or convicted does not preclude the finding

that he was a “participant” in the offense for the purposes

of U.S.S.G. § 3B1.1. As the commentary to that provision notes,

“[a] ‘participant’ is a person who is criminally responsible

for the commission of the offense, but need not have been con-

victed.” U.S.S.G. § 3B1.1 cmt. n.1 (emphasis added). Moreover,

we have previously accepted the argument that an individual

who testified under a grant of immunity may be considered a

“participant” in an offense. See United States v. Jackson, 95

F.3d 500, 511 (7th Cir. 1996). In Jackson, we affirmed the district

court’s denial of a reduction under U.S.S.G. § 3B1.2 (mitigating

role in the offense), which defines “participant” in accordance

with the commentary to U.S.S.G. § 3B1.1. See U.S.S.G. § 3B1.2

cmt. n.1. In that case, the Government argued that several

telemarketers other than the indicted defendants should be

considered criminally responsible “participants” in the

(continued...)

24 No. 08-2925

oversaw the whole of First Capital’s operations while he

and Dalglish were in Italy.1 7 Second, the nature of

Mr. Anderson’s participation in the offense supports the

district court’s conclusion; because Mr. Anderson con-

trolled the purse strings of First Capital, he likely

had either direct or indirect financial control over

other participants in the enterprise. Third, Mr. Anderson

claimed a one-third share of First Capital’s profits. The

evidence of Mr. Anderson’s decision-making authority

over Lennox, his control of the enterprise during Prudenza

and Dalglish’s absence, his control of First Capital’s

finances and his receipt of a large share of First Capital’s

profits supports the district court’s conclusion that

Mr. Anderson was a manager or supervisor of the crim-

16

(...continued)

scheme. Jackson, 95 F.3d at 511. Specifically, the Government

noted that “two of the . . . employees who testified were

granted immunity,” and that “the apparent nature of the fraud

from the script itself . . . strongly suggest[ed] that other

telemarketers could have been indicted and prosecuted” had

the Government sought to do so. Id. The defendant did not

reply to that argument, which we found “convincing.” Id.

17

We have considered control over an enterprise, even on a

temporary basis, to be a fact supporting the application of an

enhancement under U.S.S.G. § 3B1.1. See United States v. Sheikh,

367 F.3d 683, 688 (7th Cir. 2004) (noting that the defendant

“exclusively ran the store and directed Yousef’s activities for a

period of time during which the fraud continued”).

No. 08-2925 25

inal enterprise.18 We therefore conclude that the district

court did not clearly err in applying the manager-or-

supervisor enhancement.

3. The Reasonableness Of Mr. Anderson’s Sentence

In his third and final challenge to his sentence, Mr.

Anderson claims that the sentence imposed by the

district court is unreasonable. We review the substan-

tive reasonableness of a sentence under the abuse-of-

discretion standard. United States v. Omole, 523 F.3d 691,

698 (7th Cir. 2008). Where, as here, the district court

imposes a below-guidelines sentence, it is presumed that

the sentence is not unreasonably high. United States v.

Wallace, 531 F.3d 504, 507 (7th Cir. 2008) (“A sentence

within the [guidelines] range is presumptively reason-

18

See Sheikh, 367 F.3d at 688 (concluding that the court did not

clearly err by deeming the defendant a supervisor when the

defendant “made countless deposits of illegally obtained food

stamps, obtained a large portion of the proceeds from the

fraud as compared to other participants . . . exclusively ran

the store and directed Yousef’s activities for a period of time

during which the fraud continued, and terminated the

services of the bookkeeping firm when it pointed out

accounting irregularities”); United States v. Gracia, 272 F.3d

866, 877 (7th Cir. 2001) (concluding that the district court did not

err in applying a section 3B1.1 enhancement where the defen-

dant, among other things, “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”).

26 No. 08-2925

able, and it follows that a sentence below the range also

is presumptively not too high.” (citations omitted)).

Mr. Anderson contends that his sentence was unrea-

sonable for two reasons: First, he asserts that the district

court failed to consider his advanced age, his medical

history, his limited culpability and his good character

when determining his sentence. Second, he asserts that

there is an unjustifiable disparity between his sentence

and the sentences of his coconspirators.

The first of these arguments is unsupported by the

record. Before imposing Mr. Anderson’s sentence, the

district court considered a number of factors, including

Mr. Anderson’s age, physical condition and education

level, Congress’ determination that telemarketing fraud

warrants “a stiff penalty due to the nature of the crime

and the numbers of people affected,” the scope of the

conspiracy, the vulnerability of its victims, and the

actions taken by the coconspirators to avoid detection.

R.183 at 53-56. It specifically indicated, moreover, that

it was departing from the recommended sentencing

range based on its assessment of Mr. Anderson’s age,

his physical condition and, most significantly, its con-

clusion that Mr. Anderson “was to a certain extent

duped by the conspiracy.” Id. at 56. Thus, the court ade-

quately explained the sentence it imposed, and it suffi-

ciently addressed Mr. Anderson’s claim that, in light

of his age, medical condition and relative culpability,

a below-guidelines sentence was warranted. Cf. United

States v. Kincannon, 567 F.3d 893, 901 (7th Cir. 2009) (deem-

ing the imposition of a thirty-year sentence “presump-

No. 08-2925 27

tively reasonable” where the district court considered

the defendant’s claim for leniency in light of his ad-

vanced age, but declined to impose a below-guidelines

sentence in light of other countervailing factors).

Mr. Anderson’s second challenge to the reasonableness

of his sentence also must fail. Mr. Anderson claims that

his sentence should be vacated in light of the disparity

between his sentence and the sentences of his

codefendants, which, he submits, is unjustified. We

previously have concluded, however, that an asserted

discrepancy between the sentences of two codefendants

is an insufficient basis for challenging a sentence.

Omole, 523 F.3d at 700 (“This court refuses to view the

discrepancy between sentences of codefendants as a

basis for challenging a sentence.”). We shall not disturb

a sentence based on a claim of an unjustifiable

disparity between the sentences of codefendants unless

the defendant can show that the sentence imposed

“creates a disparity between the length of [his] sentence

and all other similar sentences imposed nationwide.” Id.

(citation and quotation marks omitted).

Mr. Anderson has failed to demonstrate that there is

an unwarranted disparity between his sentence and the

sentences of defendants with similar records who have

been convicted of similar crimes. See United States v.

Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). Mr. Anderson

has not pointed to any cases where a similarly situated

defendant received a sentence that was significantly

lower than his own. In his brief, Mr. Anderson points to

a number of cases that, he claims, involved defendants

28 No. 08-2925

convicted of similar crimes who received sentences dis-

proportionately shorter than his own. See Appellant’s Br.

43-45. However, the disparity in sentencing reflects

legitimate factual differences between Mr. Anderson’s

case and those on which he relies. Of the cases cited by

Mr. Anderson, only three involve telemarketing fraud.

Of those three telemarketing fraud cases, two involve

defendants who were sentenced under a guidelines

provision that is no longer in force.1 9 Furthermore, it is not

clear that any of the telemarketing cases cited by Mr.

Anderson involved more than 250 victims, nor does it

appear that any of those cases involved crimes in which

a substantial part of the offense was committed outside

19

Two of the telemarketing fraud cases cited by Mr. Anderson

involve defendants who were sentenced under an earlier

guidelines provision pertaining to offenses involving fraudu-

lent conduct. See U.S.S.G. § 2F1.1, deleted by consolidation with

U.S.S.G. § 2B1.1 (effective Nov. 1, 2001). Under that section, the

applicable base offense level for individuals convicted of

fraud was set at 6; where the loss from the fraudulent conduct

exceeded $5,000,000 but was less than $10,000,000, the base

offense level was enhanced by only 14. See U.S.S.G. §§ 2F1.1(a),

(b)(1)(O) (2000). Mr. Anderson, however, was sentenced

under U.S.S.G. § 2B1.1; under the terms of that provision, his

base offense level was set at 7, and he received a 20-level

enhancement because the loss caused by the fraud exceeded

$7,000,000. U.S.S.G. §§ 2B1.1(a)(1), (b)(1)(K). Thus, any differ-

ence between Mr. Anderson’s sentence and the sentences of

those individuals sentenced under section 2F1.1 may be ex-

plained by the difference in the base offense levels and en-

hancements set forth in the applicable guidelines provisions.

No. 08-2925 29

of the United States. Those facts were, however, estab-

lished in this case, and they had a significant impact on

Mr. Anderson’s sentencing range; Mr. Anderson

received a six-level increase in his offense level because

of the number of victims of the offense, see U.S.S.G.

§ 2B1.1(b)(2)(C), and a two-level increase because a sub-

stantial part of the scheme was committed outside the

United States, see U.S.S.G. § 2B1.1(b)(9)(B).

The factual distinctions between the cases cited by

Mr. Anderson and his case, together with the difference

in the guidelines provisions and enhancements

applicable in those cases, make the cases cited by Mr.

Anderson a poor basis for comparison. The difference

between Mr. Anderson’s sentence and the sentences of

the defendants in those cases may have been caused by

any one of a number of facts that distinguish Mr. Ander-

son’s case from the others. Thus, we cannot con-

clude that there is any unwarranted disparity between

Mr. Anderson’s sentence and the sentences of similarly

situated defendants nationwide.2 0

20

Furthermore, to the extent that Mr. Anderson’s sentence

differs from his codefendants’ sentences, that difference may

be explained by his codefendants’ willingness to plead guilty,

their cooperation with the Government, and the imposition of

a two-level obstruction-of-justice enhancement in Mr. Ander-

son’s case. United States v. Boscarino, 437 F.3d 634, 638 (7th

Cir. 2006) (concluding that the difference between the codefend-

ants’ sentences did not amount to an unwarranted disparity,

because it was “justified by legitimate considerations, such

as rewards for cooperation”).

30 No. 08-2925

Accordingly, we must conclude that Mr. Anderson has

failed to establish any unjustified disparity between his

sentence and the sentences of similarly-situated defen-

dants. Because Mr. Anderson has not presented any

evidence or arguments sufficient to overcome the pre-

sumption that his below-guidelines sentence is reason-

able, we shall not disturb his sentence on appeal.

Conclusion

For the reasons set forth in this opinion, we affirm the

decision of the district court.

A FFIRMED

9-3-09