United States v. Livingstone
Opinion of the Court
ORDER
Warren Livingstone pleaded guilty to possession of forged checks, 18 U.S.C. § 2315, and received a sentence of 30 months’ imprisonment, three years’ supervised release, and restitution totaling $14,045. He appeals his sentence, arguing that the district court clearly erred in adding three levels to his base offense level because of an alleged managerial role in the offense, which involved more than five participants. See U.S.S.G. § 3Bl.l(b). Because it is quite obvious that Livingstone acted as a mid-level manager in a relatively sophisticated, multistate forgery ring, we affirm.
On April 14, 2002, a deputy sheriff in Pulaski County, Illinois, pulled over a vehicle for speeding. Livingstone and two women-later identified as Lindsey McWilliams and Danielle Stephens-were in the car. McWilliams, who was driving, admitted that she was unlicensed and consented to a search of the car. The search revealed seventeen checks totaling $59,639 and numerous forms of identification: state-issued identification cards, credit cards, and birth certificates. These articles proved to be forgeries. (PSR. at 5.)
Although initially denying involvement in anything illegal, Livingstone eventually
As he did before the district court, Livingstone argues on appeal that the above description of his role in the check-cashing scheme does not support the application of the managerial adjustment contained in § 3Bl.l(b). His argument proceeds in the main by omission, ignoring such relevant facts as his retention of a greater share of illegal proceeds than those beneath him. He also points out that the government did not name or otherwise identify many others involved in the scheme, suggesting that there were actually quite a few people above him and that his alleged control over Stephens and McWilliams was insufficient to support the conclusion that he was a manager.
We review a sentencing court’s application of § 3Bl.l(b) for clear error, reversing only if left with the “definite and firm conviction” that a mistake has been made. See United States v. Gracia, 272 F.3d 866, 876 (7th Cir. 2001). In applying § 3Bl.l(b), sentencing courts are to look at “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. § 3B1.1, comment, (n.4). Not all of these factors must be present. See Gracia, 272 F.3d at 877. At minimum, the defendant must have “exercised some control over others involved in the commission of the offense,” such as by orchestrating or coordinating the actions of accomplices. Id.
There is ample evidence that Livingstone managed or supervised others in the check-cashing scheme. His confession reveals that he orchestrated and coordinated the activities of Stephens and McWilliams by providing them forged identifications and forged checks, planning and funding check-cashing trips, and controlling when and how much they were paid. He also retained a greater share of the illegal proceeds for himself, and during his interrogation by the FBI analogized his position in the scheme to that of a “captain” in an organized crime family. (Gov. Exhibit 1, Livingstone Confession Report, at 1.) We have affirmed the application of § 3B1.1 on the basis of evidence less than or equal to this. See, e.g., Gracia, 272 F.3d at 876 (upholding adjustment where defendant recruited others, provided money to facilitate crime, and provided necessary transportation); United States v. Pippen, 115 F.3d 422, 424-25
AFFIRMED.
Reference
- Full Case Name
- United States v. Warren LIVINGSTONE
- Status
- Published