Argued: April 28, 2015.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 497-1 -- Sharon Johnson Coleman, Judge.
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. See U.S.S.G. § 3B1.1(c). Because the court did not clearly err in applying the adjustment, we affirm.
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.
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.
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 ...