United States v. Jeanette Grigsby

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