United States of America v. Willie Jones

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3103
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE JONES,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 469 — Milton I. Shadur, Judge.
ARGUED APRIL 23, 2015 — DECIDED JULY 9, 2015
Before BAUER and SYKES, Circuit Judges, and REAGAN, Chief
District Judge.*
BAUER, Circuit Judge. On April 26, 2012, defendant-
appellant, Willie Jones, was charged with ten counts of bank
fraud in violation of 18 U.S.C. § 1344 and one count of aggra-
vated identity theft in violation of 18 U.S.C. § 1028A(a)(1).
The Honorable Michael J. Reagan, Chief Judge of the United States
*
District Court for the Southern District of Illinois, sitting by designation.

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On March 7, 2014, Jones pleaded guilty to one count of bank
fraud and the aggravated identity theft count, without a plea
agreement. On September 19, 2014, the district court sentenced
Jones to a term of 184 months’ imprisonment. Jones now
challenges his sentence on appeal.
I. BACKGROUND
Beginning in April 2008, Jones and co-defendant, Darrell
Jackson, devised and executed a scheme to steal personal
information from victims to create counterfeit driver’s licenses
and checks in order to defraud banks. Jones and Jackson
stole the personal information by pickpocketing wallets and
by purchasing stolen wallets. They used the stolen personal
information to make fraudulent identification documents,
using a computer to take photographs and then place each
photograph on a digital template for a state identification card.
This method produced at least sixty counterfeit identification
documents of at least sixty individuals. Jones and Jackson also
pickpocketed checkbooks or purchased stolen checkbooks
belonging to at least twenty-six individuals.
Next, Jones and Jackson (and others directed by them),
forged signatures on the stolen checks, making them payable
to individuals matching the fraudulent identification docu-
ments. Intermediaries known as “writers” would then present
the forged checks and fraudulent documents to banks to
withdraw cash. Jones himself never presented any checks to
banks; instead, he would drop off the writer and wait outside
in his vehicle for their return. On a typical day, Jones and his
writers would visit multiple banks, cashing multiple checks
against the same account using the same counterfeit identifi-

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No. 14-3103 3
cation documents. At the final bank stop, a writer would
withdraw cash directly from the victim’s account. The scheme
continued until March 2011 and resulted in a loss amount of
approximately $770,000.
Jones’s role in the scheme was a significant one; he re-
cruited all but two of the eight writers and trained all of them.
He furnished them with fraudulent IDs and secondary infor-
mation about their victim account holders. He decided which
banks to target and provided transportation to and from the
banks. Jones also decided how to divide the proceeds of the
fraud amongst the participants. On occasion, he would keep a
larger share of the proceeds for himself.
On April 26, 2012, an indictment issued charging Jones with
ten counts of bank fraud in violation of 18 U.S.C. § 1344 and
one count of aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). Jones pleaded not guilty and was released on
bond. While on bond, Jones was arrested again for stealing
wallets and making fraudulent purchases using the credit
cards from the stolen wallets. On February 14, 2013, the district
court revoked Jones’s bond based on the arrest.
On March 7, 2014, Jones pleaded guilty, without a plea
agreement, to Count One of the indictment (one of the bank
fraud counts) and to Count Ten (the aggravated identity theft
count). The district court also accepted the guilty pleas of co-
defendants Jackson, Ilene Foster, and Jazmon Norsworthy,
pursuant to plea agreements.
At Jones’s sentencing hearing on September 19, 2014, the
district court heard testimony from Foster, Jackson, and
Sergeant Christopher Burne, who each testified to Jones’s

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involvement in the scheme. Based on their testimony, and
testimony from Jones, the district court found that Jones had
twelve criminal history points and applied several enhance-
ments to his offense level. The enhancements included a four-
level enhancement for possession or use of device-making
equipment and the production of counterfeit devices, a two-
level enhancement for an offense involving more than fifty
victims, and a four-level enhancement based on a finding that
Jones was a leader or organizer of criminal activity involving
five or more participants.
In light of the enhancements, criminal history points, and
mitigating factors, the district court calculated Jones’s Guide-
lines range as 151–188 months as to Count One and imposed
a within-range sentence of 160 months’ imprisonment. The
court also imposed the statutorily-mandated consecutive 24-
month term of imprisonment for the aggravated identity theft
conviction on Count Ten of the indictment. On September 23,
2014, Jones appealed.
II. DISCUSSION
Jones challenges his sentence only. He makes five argu-
ments: (1) the district court abused its discretion in sentencing
him to a longer sentence than Jackson in violation of
§ 3553(a)(6); (2) the district court improperly enhanced his
sentence under United States Sentencing Commission Guide-
lines Manual (“U.S.S.G.”) § 2B1.1(b)(11) based on his posses-
sion or use of device-making equipment; (3) the district court
erred in applying the U.S.S.G. § 2B1.1(b)(2)(B) enhancement for
offense conduct involving more than fifty victims; (4) the
district court incorrectly enhanced his sentence under U.S.S.G.

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No. 14-3103 5
§ 3B1.1 after concluding he acted as an organizer or leader of
the scheme; and (5) Jones challenges his sentence as a general
matter, arguing that the district court abused its discretion by
imposing an unreasonable sentence.
We review the district court’s factual determinations at
sentencing for clear error, United States v. Walsh, 723 F.3d 802,
807 (7th Cir. 2013); whether those facts support an enhance-
ment is reviewed de novo, United States v. Pabey, 664 F.3d 1084,
1094 (7th Cir. 2011). We review the district court’s procedural
compliance with § 3553(a) de novo and the reasonableness of the
sentence for an abuse of discretion. United States v. Grigsby, 692
F.3d 779, 791 (7th Cir. 2012).
A. Sentencing Disparities Pursuant to § 3553(a)(6)
Jones argues that the district court’s failure to consider co-
defendant Jackson’s sentence while sentencing Jones was
error in light of § 3553(a)(6).
Section 3553(a)(6) provides that the sentencing court shall
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct” in determining a defendant’s
sentence. 18 U.S.C. § 3553(a)(6). But nothing in § 3553(a)(6)
precludes sentencing disparities based on differences in
offense conduct amongst co-defendants. Indeed, “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), “or
is the result of statutory authorization.” United States v. Dun-
can, 479 F.3d 924, 929 (7th Cir. 2007).

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During Jones’s sentencing hearing, the district court
explicitly addressed the need to avoid unwarranted sentencing
disparities under § 3553(a)(6) and also determined that Jones
and Jackson deserved different sentences based on their
differing conduct. At sentencing, Foster’s testimony described
Jones’s role directing all but two of the eight writers, as well as
his role in recruiting them. Jackson recruited and directed only
two writers. Additionally, Jones managed Foster, who in her
capacity as a writer was responsible for the greatest percentage
of loss; she fraudulently obtained approximately $600,000 of
the $770,000 total. Finally, Jackson chose to cooperate with the
government, while Jones did not. These differences in conduct
support disparate sentences. Therefore, the district court
followed § 3553(a) and acted within its discretion in imposing
Jones’s sentence.
B. Possession or Use of Device-Making Equipment and
Production of Counterfeit Access Devices Enhance-
ment
U.S.S.G. § 2B1.1(b)(11) requires a two-level enhancement for
a finding that an offense involved “(A) the possession or use of
any (i) device-making equipment, or (ii) authentication feature;
(B) the production or trafficking of any (i) unauthorized access
device or counterfeit access device, or (ii) authentication
feature; or (C)(i) the unauthorized transfer or use of any means
of identification unlawfully to produce or obtain any other
means of identification … .” The district court imposed the
two-level enhancement after finding that Jones produced fake
IDs using his computer and a computer-based template.

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No. 14-3103 7
On appeal, Jones challenges the application of U.S.S.G.
§ 2B1.1(b)(11), arguing that our decision in United States v. Doss,
741 F.3d 763 (7th Cir. 2013), precludes imposition of the
U.S.S.G. § 2B1.1(b)(11) enhancement. Doss holds that Applica-
tion Note 2 to U.S.S.G. § 2B1.6 precludes the imposition of the
possession or use of device-making equipment and production
of counterfeit access devices enhancement on the basis of
trafficking where the trafficking also constituted a transfer of
a means of identification. Doss, 741 F.3d at 767–68. But this
restriction is irrelevant where, as here, possession or produc-
tion acts as the basis for the enhancement, rather than traffick-
ing. Jones possessed device-making equipment —his computer1
equipped with state identification templates—and he used that
equipment to produce fake IDs for his writers. Under these
facts, the district court did not err in imposing U.S.S.G.
§ 2B1.1(b)(11)’s two-level enhancement.
C. Victim Enhancement
The district court enhanced Jones’s offense level by four
points pursuant to U.S.S.G. § 2B1.1(b)(2)(B) based on its finding
that there were at least fifty victims of Jones’s scheme. Jones
concedes that over fifty individuals and banks lost money
due to his misconduct. Of that group, all but nine were
“Device-making equipment” is defined as “any equipment,1
mechanism, or impression designed or primarily used for
making an access device or a counterfeit access device.” 18 U.S.C.
§ 1029(e)(6); U.S.S.G. § 2B1.1(b)(11) cmt. 9(A). An“access device”
means “any card … or other means of account access that can be
used, alone or in conjunction with another access device, to obtain
money … .” 18 U.S.C. § 1029(e)(1).

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8 No. 14-3103
eventually reimbursed; Jones argues that only those nine
should be counted as “victims” for purposes of the enhance-
ment because the eventual reimbursement negated the victim
status of the rest. Jones’s argument is foreclosed by our
decision in United States v. Panice, 598 F.3d 426 (7th Cir. 2010),
in which we held “victim” includes a person whose losses were
reimbursed. Id. at 433. Moreover, Application Note 4(E) to
U.S.S.G. § 2B1.1(b)(2) specifies that “victim” includes “any
individual whose means of identification was used unlawfully
or without authority,” regardless of whether actual loss
occurred. U.S.S.G. § 2B1.1(b)(2), cmt. n.4(E). The district court
therefore did not err in counting reimbursed individuals as
“victims” and imposing U.S.S.G. § 2B1.1(b)(2)(B)’s four-level
enhancement.
D. Organizer or Leader Enhancement
Jones also contends that the district court erroneously
applied a four-level enhancement based on Jones’s role as an
organizer or leader. The crux of Jones’s argument is that
because he and his co-defendant, Jackson, were equally
culpable in the offense, it was inappropriate for the district
court to impose the four-level organizer/leader enhancement
on Jones, while only imposing the three-level manager/
supervisor enhancement on Jackson. First, as a factual matter,
Jones’s argument mischaracterizes the record. Although the
district court acknowledged that Jones and Jackson committed
similar conduct, the court still found that Jones acted as
more of a leader than Jackson in light of Jones’s more active
recruitment and interaction with writers. See supra, Part II.A.
Second, comparison to Jackson notwithstanding, Jones’s
conduct qualifies for the enhancement in its own right: Jones

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No. 14-3103 9
interacted with and directed writers; Jones recruited all but
two of the writers; Jones trained the writers; Jones chose which
account holders and banks to target; and Jones provided his
writers with the fake identification documents needed to access
accounts. Third, insofar as Jones’s argument suggests that there
may only be a single leader in a scheme, that is simply untrue.
“There can, of course, be more than one person who qualifies
as a leader or organizer of a criminal association or conspir-
acy.” U.S.S.G. § 3B1.1, cmt. n.4. For these reasons, the district
court did not err in imposing the four-level leader/organizer
enhancement.
E. Unreasonable Sentence
The district court calculated Jones’s Guidelines range to be
151–188 months, and sentenced him to a term of 160 months’
imprisonment, followed by a mandatory two years’ imprison-
ment for the aggravated identity theft conviction. Jones argues
his sentence is unreasonable in light of the § 3553(a) factors
because the district court failed to give meaningful consider-
ation to mitigating factors and relied too heavily on Jones’s
criminal history. “It is well settled that on appeal this court
presumes that a sentence within the advisory Guidelines
range is reasonable and will reverse only for an abuse of
discretion.” United States v. Collins, 640 F.3d 265, 270 (7th Cir.
2011). The defendant bears the burden of overcoming the
presumption. United States v. Blue, 453 F.3d 948, 952 (7th Cir.
2006).
Jones has not met his burden. Contrary to Jones’s assertion,
the district court considered the relevant § 3553(a) factors on
the record, including mitigating factors. The court specifically

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acknowledged Jones’s community work and considered letters
attesting to Jones’s good character. The court also considered
the nature of the offenses, the impact on the victims, as well as
Jones’s criminal history, which included Jones’s arrest for
similar misconduct while out on bail for the instant offenses.
The district court is not required to make factual findings as to
each § 3553(a) factor, but the record on appeal should reveal
that the district court considered the factors. See Collins, 640
F.3d at 270. So it is here; the district court properly considered
the § 3553(a) factors and the within-Guidelines sentence it
imposed is reasonably related to those factors.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence the
district court imposed upon Jones.

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