United States v. Jason Dade , 787 F.3d 1165 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2072
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON DADE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 497-1 — Sharon Johnson Coleman, Judge.
____________________
ARGUED APRIL 28, 2015 — DECIDED JUNE 3, 2015
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Jason Dade, a former licensed real
estate agent, pleaded guilty to one count of bank fraud, 18
U.S.C. § 1344, for his role in helping prospective real estate
buyers assemble fraudulent mortgage loan applications. On
appeal Dade challenges one aspect of his sentence: He
contests the district court’s decision to apply a 2-level
upward adjustment for his aggravating role in the offense.
2 No. 14-2072
See U.S.S.G. § 3B1.1(c). Because the court did not clearly err
in applying the adjustment, we affirm.
I. Background
Over a four-year period, Dade, along with codefendants
Cheryl Ware, Tiffini Chism, and Tamika Peters, carried out a
mortgage-fraud scheme in which they facilitated bank loans
to purchase residential real estate by knowingly providing
lenders with false statements and documents. Dade referred
potential buyers, including Peters, to Ware and Chism, who
were loan officers. Dade provided Ware and Chism with
false documents—including payroll stubs and W-2 forms
from fake companies—so that unqualified buyers would be
approved for loans. On one occasion Dade (with Chism’s
help) refinanced a mortgage on a property he owned in
Chicago, Illinois. On his loan application Dade stated that he
was paying monthly rent of $1,450 (he did not live in the
house he was refinancing), and he backed up this claim with
a rental verification from “Jireh Development Corp.” Such
entity did not exist, and Dade was actually renting from his
mother-in-law for under $600 monthly. As a consequence of
this representation on the loan application, Dade was able to
receive a $156,000 loan from Fremont Investment & Loan.
Dade was charged with two counts of bank fraud, 18
U.S.C. § 1344, one count of wire fraud, id. § 1343, and two
counts of mail fraud, id. § 1341. He pleaded guilty to one
count of bank fraud based on the fraudulent refinancing of
his property. In exchange the government dismissed the
remaining four charges.
No. 14-2072 3
The government initially alerted Dade that it would seek
a 2-level upward adjustment for his role as an organizer,
leader, manager, or supervisor in the offense, see U.S.S.G.
§ 3B1.1(c). When preparing the presentence report, however,
the probation officer concluded that a 4-level upward
adjustment would be appropriate. According to the
probation officer, the scheme had involved five or more
participants (Dade, Chism, Ware, Peters, numerous buyers,
and James Wilson, who provided the fake documents). In
the probation officer’s view, Dade had organized the scheme
by obtaining false documents and referring buyers to Chism
and Ware.
The government then adopted the probation officer’s
position. In support the government recounted its version of
the facts underlying the charges dismissed as part of Dade’s
plea agreement. In Count Two (bank fraud) Chism had
referred “Buyer A” to Dade for help in finding two
investment properties. Dade encouraged Buyer A to acquire
a third property, and Chism told Dade how much income
Buyer A would need to qualify for another loan. Dade then
provided Chism with fake pay stubs and an employment
verification reflecting the necessary salary. In Count Three
(wire fraud) Dade had referred Peters to Ware, who
prepared a loan application using fake pay stubs provided
by Dade. In Count Four (mail fraud) Dade had directed
Peters to prepare a fake rent verification for “Buyer B.” And
in Count Five (mail fraud) Dade had refinanced another
residence he owned by providing a loan officer with fake
income tax returns and bank statements.
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Dade objected to the application of § 3B1.1. Citing United
States v. Weaver, 716 F.3d 439 (7th Cir. 2013), Dade argued
that the upward adjustment is appropriate only if the
defendant exercised authority, control, and ongoing
supervision over others and, according to Dade, he did not.
Dade argued that the government needed to show that he
had the ability to coerce, reward, or punish members of the
criminal enterprise; this requirement, he continued, was not
met by the probation officer’s assertion that he organized the
offense by obtaining false documents and referring buyers to
loan officers who prepared false applications.
The district court ultimately concluded that a 2-level
upward adjustment would adequately account for Dade’s
role in the offense. Dade was “clearly a leader,” the court
concluded, but “as to the amount of coercion considering the
roles of some of the other people involved,” only a 2-level
adjustment was warranted. With that adjustment, the court
calculated a total offense level of 24 and criminal history
category of I, yielding a guidelines imprisonment range of 51
to 63 months. The court then imposed a sentence of 20
months’ imprisonment.
II. Discussion
Despite Dade’s below-guidelines sentence, which is less
than half the low end of his guidelines range, he seeks
review and thus risks receiving a less favorable sentence if
successful on appeal. He principally contends that the
district court’s application of § 3B1.1(c) runs afoul of the
standard that this court purportedly outlined in Weaver. In
Weaver the government argued that the defendant, a
No. 14-2072 5
methamphetamine dealer, had exercised decision-making
authority and control over customers who were fronted
drugs and thus was a manager or supervisor under
§ 3B1.1(b). 716 F.3d at 440, 443. “For purposes of § 3B1.1,” we
clarified, “a defendant exercises control and authority over
another when he ‘tells people what to do and determines
whether they’ve done it.’” Id. at 443 (quoting United States v.
Figueroa, 682 F.3d 694, 697 (7th Cir. 2012)). Dade asserts that
the information in his presentence report—that he organized
the offense by obtaining false documents and referring
buyers to the codefendant loan officers—does not establish
“the type of coercion or control required by Weaver.”
We disagree with Dade’s reading of Weaver. First, Dade
interprets that decision to mean that an ability to coerce is
essential to apply § 3B1.1, but Weaver notes that coercion is
just one factor for the sentencing judge to consider in
making an otherwise “commonsense judgment about the
defendant’s relative culpability given his status in the
criminal hierarchy.” 716 F.3d at 443–44. Second, Dade
accepts that Weaver stands for the proposition that exercising
control means being able to dole out a reward or
punishment to inferiors, see id. at 444, and yet Dade ignores
that he rewarded Ware and Chism with continued business
that easily could have been withheld. In any event, Weaver
does not limit the adjustment to situations where there had
been a finding of control and coercion; that is just one
measure. In addition to exercising control, a defendant also
fits into one of § 3B1.1’s aggravating roles if he was
“responsible for organizing others for the purpose of
carrying out the crime.” United States v. Rosen, 726 F.3d 1017,
1025 (7th Cir. 2013) (internal quotation marks and citation
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omitted); see United States v. Vasquez, 673 F.3d 680, 685 (7th
Cir. 2012); United States v. Knox, 624 F.3d 865, 874 (7th Cir.
2010); see also U.S.S.G. § 3B1.1 app. n.4 (listing degree of
control and authority as one of seven factors).
Dade has not argued that his conduct fell short of this
alternative standard. The government advances that it was
not clear error for the district court to apply the adjustment
because Dade referred buyers to codefendants Chism and
Ware, sometimes paid Ware, and provided these loan
officers with the fake documents used in the loan
applications. We agree with the government that the
evidence shows that Dade “influence[d] the criminal activity
by coordinating its members.” See United States v. Skoczen,
405 F.3d 537, 550 (7th Cir. 2005) (internal quotation marks
and citation omitted); see also United States v. Robertson, 662
F.3d 871, 877–78 (7th Cir. 2011) (concluding that § 3B1.1(c)
was appropriately applied to defendants in mortgage-fraud
scheme who provided buyers with money and fake
documents and instructed them to lie about source of funds);
United States v. Watts, 535 F.3d 650, 660 (7th Cir. 2008)
(upholding district court’s decision to apply § 3B1.1(c) based
on defendant recruiting his wife into bank-fraud scheme).
Thus, we conclude that the district court appropriately
applied the 2-level upward adjustment.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.