692 F.3d 778 (7th Cir. 2012), 11-2473, United States v. Grigsby

Docket Nº:11-2473.
Citation:692 F.3d 778
Opinion Judge:SYKES, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeanette GRIGSBY, Defendant-Appellant.
Attorney:Bill Thomas (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee. Steven Shobat (argued), Attorney, Chicago, IL, for Defendant-Appellant.
Judge Panel:Before BAUER, ROVNER, and SYKES, Circuit Judges.
Case Date:August 29, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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692 F.3d 778 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeanette GRIGSBY, Defendant-Appellant.

No. 11-2473.

United States Court of Appeals, Seventh Circuit.

August 29, 2012

         Argued Jan. 10, 2012.

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         Bill Thomas (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

          Steven Shobat (argued), Attorney, Chicago, IL, for Defendant-Appellant.

          Before BAUER, ROVNER, and SYKES, Circuit Judges.

          SYKES, Circuit Judge.

         Over the course of seven months, Jeanette Grigsby and several coconspirators planned and executed two bank heists, stealing more than a half-million dollars from the bank where Grigsby worked as a teller. After federal agents uncovered the inside jobs, Grigsby was indicted on two counts of entering a federally insured bank for the purpose of committing a felony. See 18 U.S.C. § 2113(a). She pleaded guilty without a plea agreement to the first count and later stipulated through counsel that she committed the second crime as well. With that, the government moved to dismiss the second count.

          In her sworn statement to the court, however, Grigsby minimized her role in the offense, trying to pin most of the blame on her coconspirators. So at sentencing the district court applied a two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and a three-level enhancement to account for her supervisory role in the offense, see id. § 3B1.1(b). The resulting guidelines range was 46 to 57 months, and

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the court chose a sentence of 57 months, the top of the range. Grigsby appeals, arguing that the court erroneously applied the two enhancements, and also that her sentence is procedurally defective and substantively unreasonable under 18 U.S.C. § 3553(a).

         We affirm. Both enhancements were based on the court's factual finding that Grigsby lied during her plea colloquy in an intentional effort to mislead the court by understating her role in the offense. Although this finding was based largely on documentary evidence— the grand-jury testimony and plea agreements of two of Grigsby's coconspirators— our review remains deferential; we will reverse only for clear error. See 18 U.S.C. § 3742(e). The court's factual finding that Grigsby lied about her role in the offense because she did in fact supervise the scheme is well-supported by the evidence and specific enough to withstand clear-error review. The court also sufficiently considered the § 3553(a) sentencing factors and was not required to specifically address Grigsby's routine arguments for a below-guidelines sentence. Finally, Grigsby's within-guidelines sentence— 57 months for an inside bank-robbery scheme that caused a significant loss— is not unreasonable.

         I. Background

         Grigsby was a teller at a branch of Bank One (now Chase Bank) in Oak Forest, Illinois. In the summer of 2005, she and several other employees hatched a plan to steal money from the bank's vault by staging a robbery. On Grigsby's version of events, she reluctantly agreed to participate after repeated prodding from her supervisor Jennifer Barthel, who was an assistant branch manager. According to the other coconspirators, however, it was the other way around; they said it was Grigsby who originated and directed the scheme. Neither Grigsby nor Barthel was a novice at this sort of thing; the women had previously collaborated on a check-cashing scam not at issue in this appeal.

         After the plan was conceived, Grigsby approached Tommie Gentry, a recent acquaintance, and asked him to pose as the robber. She gave Gentry the relevant details of the scheme, including a description of the bank's layout and instructions about which teller to approach. She also gave him the code phrase to alert the teller that this was the staged robbery: " Snow White." Grigsby then arranged a couple of meetings with Gentry and Barthel and instructed Gentry to find others to help carry out the robbery. She told Gentry that he and others he recruited would be paid as much as $20,000 apiece from the proceeds. Gentry got his cousin Marcus Gentry to assist.

         On the morning of August 24, 2005, the day of the planned robbery, Grigsby and Tommie Gentry met at a nearby McDonald's restaurant to review the instructions. As planned, Grigsby did not participate in the theft itself and called the bank to say that she would not come to work that day. When Tommie and Marcus Gentry arrived at the bank later that morning, they approached the designated teller Miriam Girgis, who was in on the scheme, and she in turn summoned Barthel. Pretending that a robbery was underway, Barthel opened the vault and put a large amount of cash into a black bag that Marcus had carried into the bank. The Gentry cousins then fled the bank and met Grigsby at Tommie's home. Grigsby took possession of the money— totaling about $242,000— and divided it among the coconspirators.

          Having been so successful on their first try, Grigsby and her accomplices initiated a second staged robbery about seven months later. Grigsby contacted Tommie Gentry to set things in motion. Gentry, in turn, recruited two new coconspirators.

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On March 22, 2006, the day of the second robbery, Grigsby sent Gentry a text message giving him an " all clear" to proceed with the plan. Gentry directed the new recruits to enter the bank. As before, Barthel gave them access to the vault, and they absconded with about $272,500. Grigsby again distributed the money. This time, however, federal agents unraveled the scheme and arrested the culprits.

         A grand jury indicted Grigsby on two counts of entering a bank with intent to commit a felony in violation of 18 U.S.C. § 2113(a). The coconspirators were indicted as well, and all pleaded guilty pursuant to plea agreements. Grigsby eventually announced her intention to plead guilty to the count pertaining to the first staged robbery. She did not have a plea agreement, however, so the district court asked Grigsby and the government to discuss the factual basis for her plea so that they might avoid disputes. After meeting with prosecutors, Grigsby offered the following statement to the court under oath:

On August 24th, 2005, I assisted Jenna Barthel, which is my supervisor at the time at Bank One, to stage a bank robbery in which she came to me and asked me that if I knew of anyone that will assist her, she will order the money, she will load the bag up, she will do all of that. I once told her no. Then she asked me again; and then I told her, yeah, but I didn't want to have any parts to do with that; I don't want to be anywhere around. She says, you black; you know that you can get someone to do that; that's what you all do. So I gathered to do such, introduced her to Thomas Gentry. Then he and her proceeded to carry out the act. And doing so, when the— the staged armed robbery had taken place, later on I received monies from that staged bank robbery.

         The prosecutor asked a few follow-up questions about whether the bank was federally insured and how much money Grigsby received from the scheme. The district court accepted this as a factual basis for Grigsby's guilty plea. The government moved to dismiss the second count after Grigsby stipulated, through her counsel, that she committed the second offense as well.

         Grigsby's presentence report recommended a two-level guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, based on her sworn statement to the court at her guilty-plea hearing in which she substantially understated her role in the offense. The presentence report also recommended a three-level enhancement under U.S.S.G. § 3B1.1(b) for Grigsby's supervisory role in the scheme. At sentencing the prosecutor submitted Barthel's and Tommie Gentry's grand-jury testimony and written plea agreements to prove that Grigsby in fact supervised the scheme and lied about her role during her plea colloquy. Notwithstanding its position on the obstruction-of-justice enhancement, the government did not object to a three-level reduction for acceptance of responsibility, see id. § 3E1.1(b), based on Grigsby's timely guilty plea and her stipulation to the second robbery.

         The district court adopted these recommendations. Regarding the two-level enhancement for obstruction of justice, the judge found as follows:

I agree with the government. There was an obstruction of justice here. There was a clear material— let me make it clear— a clear material misrepresentation as to what her role in the offense was. She turned it upside down. Everything she said was contradicted by the others with respect to what her role was, and that was for the purpose of escaping culpability.

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          Regarding Grigsby's role in the offense, the judge elaborated as follows:

I think there are several witnesses or multiple witnesses who make this defendant clearly a recruiter and a decision-maker and an organizer. First, her coworkers say she recruited them, not the other way around. Tomm[ie] Gentry says clearly she recruited him. No one else recruited him. No one else reached out to him. She did. And recruiting co-conspirators is one of the things one looks at in determining whether an adjustment for role in the offense is appropriate.

Second, she met at every important stage with the participants to plan this robbery or theft. She met with Barthel and Tomm[ie] Gentry. She met with Tomm[ie] Gentry and Marcus Gentry. She arranged for who was going to be present and who was not going to be present at the time of the offense. Very important. Very important. She controlled...

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