United States of America v. Dorothy Quigley

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2004 Decided July 6, 2004
No. 03-3059
UNITED STATES OF AMERICA,
APPELLEE
v.
DOROTHY QUIGLEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00082–01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese
III, and Virginia Cheatham, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Before: G INSBURG, Chief Judge, and SENTELLE and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Dorothy Quigley appeals from a
judgment sentencing her to twenty-seven months’ imprison-
ment. Her sole argument on appeal is that the district judge
improperly enhanced her offense level by four levels pursuant
to the ‘‘organizer or leader’’ role enhancement under
§ 3B1.1(a) of the United States Sentencing Guidelines. For
the reasons more fully set forth below, we agree with appel-
lant that the district court erred in imposing this enhance-
ment, and therefore vacate the judgment and remand for
resentencing.
I.
In January 2000, Federal Bureau of Investigation agents
confronted Quigley concerning her involvement in a scheme
to defraud the federal government. The scheme involved
land ‘‘flips’’ in the District of Columbia. Quigley operated as
the real estate agent for co-conspirators, helping them buy
and then sell (that is, ‘‘flip’’) D.C. properties that were in
general disrepair. She aided her conspirators in obtaining a
higher price for the land by hiring appraisers who would
value the land at an inflated cost. Most of the purchasers
could not qualify for the federally insured mortgages critical
to the success of the scheme. To solve this problem, Quigley
would help the buyers qualify for federally insured mortgages
through the Federal Housing Administration (‘‘FHA’’), part
of the Department of Housing and Urban Development
(‘‘HUD’’). She helped buyers to get false income records,
misrepresenting their ability to pay the mortgage, and at
times gave them down-payment money. At the time of the
plea agreement, thirteen of the forty-two such loans she had
helped to procure from the FHA were in default, resulting in
an estimated loss of around $700,000 to the federal govern-
ment.
After she was approached by the FBI, Quigley and the
United States entered a plea agreement. The agreement
provided that Quigley would plead guilty to one count of

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conspiracy to defraud the United States and to make false
statements within HUD’s jurisdiction and would cooperate
with the government in investigating the fraud in which she
was involved. In return, the government agreed to drop all
other potential charges and not to use any information that
Quigley provided against her. The government also agreed
to consider moving for a downward departure pursuant to
§ 5K1.1 of the United States Sentencing Guidelines if Quig-
ley’s assistance was substantial.
The parties estimated the final offense level at 18, based on
a reading of the 1999 edition of the Guidelines, the version
that applied to Quigley. The plea agreement computed that
level as follows: (1) a base-offense level of 6, see U.S.
Sentencing Guidelines Manual § 2F1.1 (1999) (repealed and
consolidated with § 2B1.1 effective Nov. 1, 2001) (‘‘USSG’’);
(2) a loss amount of between $500,000 and $800,000, which
added ten levels to the sentence; and (3) a two-level upward
adjustment for more-than-minimal planning under
§ 2F1(b)(2). The government also agreed not to oppose an
additional three-level downward adjustment for acceptance of
responsibility. The agreement said nothing about role en-
hancements. Finally, the agreement noted that the court
alone would determine the applicable guideline range, and
said that the government ‘‘cannot and does not make any
promises, representations or predictions regarding what sen-
tence the Court will impose.’’
In April 2001, Quigley pleaded guilty to one count of
conspiracy to defraud the United States and to make false
statements within HUD’s jurisdiction. At her guilty plea
hearing, the government submitted a two-page factual proffer
that appellant had acknowledged was accurate. That proffer
is not in the record; neither party apparently can locate it
and it was not formally filed with the district court. The
government, however, summarized the proffer’s contents at
the hearing:
Ms. Quigley is a real estate agent in D.C. who used her
skills to further a conspiracy to illegally obtain FHA

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insured mortgages based on fraudulently inflated ap-
praisals and falsely qualified buyers.
Ms. Quigley participated in approximately 42 home
sales that were based on these fraudulent appraisals and
falsely qualified buyers. At the time of her plea agree-
ment, thirteen of the 42 properties were already in
default or foreclosure, with estimated losses to the FHA
and HUD of over $700,000.
The government will primarily be relying on a written
factual proffer that was provided in advance to defense
counsel and to the court, and which has been signed
today by Ms. Quigley and her counsel.
The district court also examined Quigley in open court
concerning the contents of the proffer:
THE COURT: Is it correct that on a substantial number
of occasions, the government says there were 42–at least
42 of these, but at least on a substantial number, that you
in agreement and in cooperation with a number of other
individuals who the government has simply identified as
co-conspirators, that you identified properties which
could be used for the FHA insured loan program, that
you identified potential buyers, and that you helped those
buyers appear to get qualified for the loans, and by that
I mean that you helped get false pay stubs for them, that
in some instances you had them indicate that they were
getting their down payment as a gift from a relative,
which is legal, when, in fact, one of the co-conspirators
was providing the money for the down payment.
Are those facts correct?
MS. QUIGLEY: Yes.
THE COURT: Is it also true that you arranged for
appraisals on the property, and that you provided the
appraiser with the contract price which resulted in get-
ting an inflated price for insurance purposes from FHA?
MS. QUIGLEY: Yes.

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THE COURT: And, of course, you were working with
other people to do that, is that correct?
MS.QUIGLEY: That is correct.
After her plea, Quigley’s sentencing was continued to allow
her time to cooperate with the government. The government
filed a sealed § 5K1.1 motion, requesting that the sentencing
court depart downward three levels. According to that mo-
tion, Quigley’s information was very useful and resulted in
multiple leads, recorded conversations, search warrants, and
other guilty pleas. (Quigley’s brief states that the trial
prosecutor has confirmed that this summary of sealed materi-
al does not reveal any nonpublic information.)
The presentence report contained additional facts relevant
to Quigley’s role in the conspiracy. The report, which the
parties have not included in the appendix but is quoted
extensively in Quigley’s brief, confirms the facts Quigley
admitted at the plea hearing. Quigley acknowledged that
there were no ‘‘material/factual inaccuracies’’ in the PSR.
The report’s sentencing calculation agreed with the sentenc-
ing calculations contained in Quigley’s plea agreement, thus
starting from a total offense level of 18. The report reduced
the sentence three levels for acceptance of responsibility,
leading to an offense level of 15, not counting any reduction
that might result from the government’s § 5K1.1 motion.
The report did not recommend that a role adjustment be
added to Quigley’s sentence.
In April 2003, the district court held a sentencing hearing
for Quigley. At the hearing, the district court questioned the
probation officer, the prosecutor, and defense counsel con-
cerning whether the court should add a role enhancement to
Quigley’s offense level, in view of the court’s ‘‘recollection of
the facts in this case from pleas and from two trials that the
defendant was probably—I am not making a finding at this
point, an organizer or leader of this entire scheme.’’ The
probation officer said that he did not believe that a role
enhancement for Quigley was appropriate, and that instead
he had enhanced her sentence two levels for more-than-
minimal planning. When asked to address the role enhance-

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ment possibility, the prosecutor said that, at the time the plea
agreement was struck between the government and Quigley,
it was not clear that she was involved in the sales contracts
for all forty-two properties they knew of at the time. The
prosecutor requested that the court reduce Quigley’s sentence
three levels, to a total offense level of 12, in view of her
extensive cooperation. Defense counsel, when asked to re-
spond, requested a two-week continuance, which the district
court granted. Counsel filed a brief memorandum objecting
to applying a § 3B1.1(a) role enhancement to Quigley.
On May 8, the district court held a second sentencing
hearing for Quigley. The court questioned the government
about Quigley’s role in the conspiracy:
THE COURT: Based on the government’s knowledge
and investigation and intensive prosecution of the entire
conspiracy, what is the government’s understanding of
the role that Miss Quigley played?
The government responded by noting that the original plea
agreement had not included a role enhancement, and by
saying that there was testimony from the trial of one of
Quigley’s co-conspirators, the Golden trial, from one Timothy
Blackburn that Quigley had recruited him to buy real estate.
This factual assertion was erroneous, according to the govern-
ment’s brief. The court then asked the government:
THE COURT: And is it not correct that in the Golden
trial there was extensive testimony about Ms. Quigley
calling Mr. Golden to make arrangements for the false
appraisals and to pay him money for those appraisals?
MS. CHEATHAM: Yes.
THE COURT: My memory may not be right about this
but over the many proceedings we’ve had in these cases,
ranging from statuses to guilty pleas to sentencing, et
cetera, I certainly came away with the impression–maybe
it was wrong–that Miss Quigley was indeed the brains
and the organizer behind this very complex conspiracy.
Is that the Government’s view or not?

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MS. CHEATHAM: Answering just regarding the facts
and not the legal consequences of the facts, I think the
answer is yes, partly because the real estate agent often
does that in either a legal or illegal real estate transac-
tion. Often, the real estate agent is the one who has the
charisma, has personality, who can draw people from
various sources to make a deal happen. Typically that’s
what we see in real estate agents in general and I think
that it would be accurate to say that that’s what hap-
pened here. And, of course, it’s our contention that this
was an illegal real estate transaction.
The court also asked the probation officer about whether
an ‘‘organizer’’ role enhancement should apply to Quigley:
THE COURT: Had you considered the issue of whether
3(b)1.1 applied?
MS. LUBINSKY: We did, your Honor. I had myself
Mr. John Quigley and Daniel Page and when we first got
this case we kind of looked at all of those people as
independent contractors who kind of did their own thing.
Like George Daniel Page fixed up the buildings and that
was his thing and it wasn’t something that–I mean Miss
Quigley may have depended on that but she didn’t neces-
sarily supervise or manage him. At the time, we didn’t
see it that way and I don’t know if I necessarily see it
that way now, but I do see where the Court can gather
that from the facts.
We were just kind of looking at everybody in their own
independent—
THE COURT: Well, of course, it isn’t just being a
manager or supervisor. Subsection (a) uses the term
organizer or leader. I would certainly agree with you
that based on all the evidence that I’ve heard and the
pleas that I’ve taken, I don’t think the term manager or
supervisor applies, no.
The court eventually decided to add the four-level organiz-
er role enhancement to Quigley’s sentence, increasing her
offense level from 15 to 19:

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I do conclude based on all of my exposure to the facts of
this conspiracy–the trials, the pleas, all of which had
statements of fact appended to them, the representations
by the Government–that Miss Quigley was certainly an
organizer or leader of the criminal activity. I think
perhaps a more accurate word, which is not a word used
in the guideline, is an orchestrator of the activity. I see
her as the hub of this conspiracy. There were many
spokes to it, from Mr. Golden, who made phony apprais-
als, to Miss Clark, who I do know and I recognize that
Miss Quigley didn’t directly deal with, to Mr. Page, who
worked on the properties and in some instances found
them, but there is no question that Miss Quigley was at
the center and the heart of the conspiracy.
TTT
Miss Quigley essentially, with her smarts and her
business acumen and her organizational skills, put it all
together and made it all work, and that’s why I think the
four levels under 3(b)1.1 are appropriate in this case.
The court decided to depart downward an additional two
levels based on Quigley’s assistance to the government, leav-
ing her with a final offense level of 17. That put Quigley in
the twenty-four-to-thirty-month guideline range. The district
court sentenced her to twenty-seven months’ imprisonment.
This appeal followed.
II.
The issue in this appeal is whether, giving all ‘‘due defer-
ence’’ to the district court’s application of the sentencing
guidelines to the facts of this case, see United States v.
Wilson, 240 F.3d 39, 47 (D.C. Cir. 2001), the court nonethe-
less erred in imposing the sentencing enhancement pursuant
to USSG § 3B1.1(a). With all respect to the difficult role of
the sentencing court, we hold that it did.
Section 3B1.1, entitled ‘‘Aggravating Role,’’ provides:

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Based on the defendant’s role in the offense, increase the
offense level as follows:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more participants
or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise ex-
tensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager,
or supervisor in any criminal activity other than that
described in (a) or (b), increase by 2 levels.
In addition, Application Note 4 to § 3B1.1 further expli-
cates the meaning of ‘‘organizer or leader’’:
In distinguishing a leadership or organizational rule from
one of mere management or supervision, titles such as
‘‘kingpin’’ or ‘‘boss’’ are not controlling. Factors the
court should consider include [1] the exercise of decision
making authority, [2] the nature of the participation in
the commission of the offense, [3] the recruitment of
accomplices, [4] the claimed right to a larger share of the
fruits of the crime, [5] the degree of participation in
planning or organizing the offense, [6] the nature and
scope of the illegal activity, and [7] the degree of control
and authority exercised over others.
As her counsel made clear at oral argument, Quigley does not
challenge that the conspiracy at issue here involved ‘‘five or
more participants or was otherwise extensive.’’ Quigley’s sole
claim is instead that the evidence does not support that she
was an ‘‘organizer or leader’’ of that conspiracy.
Quigley argues that the evidence adduced below does not
show that she controlled any participant in the scheme.
Quigley notes, quite correctly, that the district court found
that she did not ‘‘manage or supervise’’ anyone in the con-
spiracy, thus making her ineligible for a three-level role en-
hancement under § 3B1.1(b), yet nevertheless concluded that
Quigley was an organizer or leader under § 3B1.1(a), and

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therefore eligible for an even-higher four-level enhancement.
In light of that finding, Quigley says, at most, she ‘‘managed’’
or ‘‘controlled’’ property transactions, rather than people, a
less-culpable role that Application Note 2 of the commentary
to § 3B1.1 says renders a § 3B1.1(a) role enhancement inap-
propriate.
The government answers that there is evidence that Quig-
ley did in fact control other members of the conspiracy. The
government says that Quigley controlled the property buyers
because she recruited them and told them how to trick the
FHA into insuring their loans. The government also claims
that Quigley controlled the appraisers, as she told them the
false appraisal value to employ and solicited them. More-
over, the government continues, Quigley’s other conduct satis-
fied some of the other seven factors identified in Application
Note 4. Specifically, the government points to the breadth of
the scheme, Quigley’s recruitment of buyers and selection of
potential properties, and the fact that it is ‘‘fair to infer’’ that
Quigley profited more from the scheme than the other partici-
pants.
Quigley has the better of this debate. There is simply no
evidence that Quigley exercised control over any of the other
participants in this scheme. As we have recognized, ‘‘[a]ll
persons receiving an enhancement [under § 3B1.1] must ex-
ercise some control over others.’’ United States v. Graham,
162 F.3d 1180, 1185 (D.C. Cir. 1998).
Guideline § 3B1.1 orders conspirators based on their ‘‘rela-
tive responsibility’’ for the conspiracy. USSG § 3B1.1 cmt.
background. It represents a policy judgment that the more
control (that is, responsibility) the offender exercises over the
conspirators, the more culpable that offender is, and the
greater sentence she deserves. See Graham, 162 F.3d at
1185 n.5. As we noted in Graham, § 3B1.1 ‘‘creates three
relevant tiers for conspiracies that are ‘extensive’: a tier for
leaders and organizers, a tier for managers and supervisors,
and a tier for everyone else,’’ and that these levels ‘‘differ
only in degree rather than in kind.’’ Id. at 1185. Given that
tiered structure, an offender is eligible for a four-level role

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enhancement as an organizer or leader under § 3B1.1(a) only
if she would also be eligible for a three-level role enhance-
ment as a ‘‘manager or supervisor’’ under § 3B1.1(b).
We read subsection (b) to sweep in lower level managerial
and supervisory conduct, and subsection (a) to encompass
higher level managerial and supervisory conduct. It stands
to reason that one more responsible, that is, higher up in the
organization’s hierarchy, than a manager or supervisor for a
conspiracy would herself have managerial or supervisory
authority of some sort. True, not everything organizers or
leaders do is manage or supervise; the formulation of grand
strategy, for example, is not management or supervision, yet
is surely something many organizers or leaders do. That
fact, however, only highlights why the guidelines punish
organizers and leaders more severely than they do managers
and supervisors. We are confident that all organizers or
leaders of a conspiracy qualify as managers or supervisors
under § 3B1.1(b).
The government’s reliance on Application Note 4 actually
supports this proposition. That note ‘‘governs in cases in
which the court must distinguish an organizer or leader from
a manager or supervisor.’’ Graham, 162 F.3d at 1185 n.5.
The wording and structure of Application Note 4 raises a
strong implication of a hierarchical relationship between the
two roles. The first clause of that application note ‘‘distin-
guish[es] a leadership and organizational role from one of
mere management or supervisionTTTT’’ (Emphasis added).
An application note guiding the distinctions between two
levels of enhancement which refers to one as ‘‘mere’’ and
recites a list of factors inclusive of degrees of such factors as
participation and planning, organizing, controlling, and exer-
cising authority over others, is at the very least strongly
suggestive of a hierarchical relationship between the two.
This relationship between subsections (a) and (b) is crucial
to this case because, as Quigley’s brief stresses, the district
court found, and the record supports, Quigley was not even a
manager or supervisor within the meaning of § 3B1.1(b).
Entirely lacking on the record before us is any evidence that

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Quigley had any sort of hierarchically superior relationship
with the persons who were purportedly her subordinates.
We understand the concept of ‘‘control’’ or ‘‘authority,’’ im-
plicit in the notion of ‘‘management’’ or ‘‘supervision,’’ to
connote some sort of hierarchical relationship, in the sense
that an employer is hierarchically superior to his employee.
The district court failed, however, to require any proof that
Quigley was hierarchically superior to her co-conspirators.
Instead, the district court focused its inquiry upon whether
Quigley was the ‘‘hub’’ or ‘‘orchestrator’’ of the conspiracy.
Because the district court applied the four-level enhancement
for organizers and leaders, even though it found the three-
level enhancement for managers and supervisors was inappli-
cable, and because it applied an incorrect legal standard to
determine whether the four-level role enhancement applied,
the district court erred in adding a four-level role enhance-
ment for organizers and leaders to Quigley’s offense level.
III.
For the reasons expressed above, we reverse the district
court’s imposition of a four-level organizer role enhancement
under § 3B1.1(a), vacate Quigley’s sentence, and remand the
case to the district court for resentencing.

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