U.S. v. Blaylock

• Decision Date: 28 June 2005
• Docket Number: No. 03-1549.,03-1549.
• Citation: 413 F.3d 616
• Parties: UNIT ED STATES of America, Plaintiff-Appellee, v. Trenise BLAYLOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

413 F.3d 616

UNIT ED STATES of America, Plaintiff-Appellee, v. Trenise BLAYLOCK, Defendant-Appellant.

No. 03-1549.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2005.

Decided June 28, 2005.

Stephen Ingraham (argued), Karine Moreno-Taxman, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Vilija Bilaisis, Ludington, MI, for Defendant-Appellant.

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

CUDAHY, Circuit Judge.

Trenise Blaylock pleaded guilty to armed bank robbery and related offenses. At sentencing she stipulated to all upward adjustments under the guidelines save one: that she was an organizer or leader of a criminal activity involving at least five participants. On appeal she contends for the first time that she did not have sufficient control over four other participants to warrant that adjustment. Also for the first time, Blaylock invokes United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although we find Blaylock's arguments regarding the adjustment for her leadership role to be meritless, we remand for further proceedings under the procedure articulated in United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005).

Blaylock planned the robbery of Milwaukee's Guardian Credit Union, her former employer, and personally recruited three accomplices to help her. Her first recruit was her cousin, Lakesha Bruce. Blaylock then enlisted Omar Nelums and Weylin Shurn and tasked them with getting guns and stealing a getaway car. Blaylock was the one who chose the date of the robbery, April 11, 2002, because she knew that a shipment of $400,000 was due to arrive that day. She also drew a map of the credit union and parking lot and described details of the facility and its employees.

The plan was a failure. Blaylock, Bruce, Nelums, and Shurn all went to the bank at closing time and waited outside in the stolen car. When two of the tellers made their exit, Nelums and Shurn tried to grab them in the parking lot. One teller ran with Shurn in pursuit, while Nelums forced the other at gunpoint to the credit union's side door. Afraid for the teller's life, the manager let Nelums enter; when he got inside, Nelums shot the security cameras with his gun. But the bank employees told him that they could not open the drawers where he thought he would find the $400,000, so he grabbed $5,300 from another drawer and ran away. As he fled, a red dye pack in the loot exploded in his face. Nelums jumped into the getaway car with Blaylock and Bruce, and the three sped away. Meanwhile, Shurn had caught the other teller but let her go and jumped in the getaway car as it came by.

With Nelums covered in red dye and the others overcome by fumes, the fearsome foursome needed a place to clean up and regroup. As they neared the home of Jermaine Shurn, Weylin's brother, the four abandoned the getaway car and walked to the house. Jermaine's wife took them to the basement to wash up, and Jermaine disposed of Nelums' clothes and other signs of their presence. Weylin Shurn called another brother. Terrecho Shurn, to drive them home. Terrecho hid Nelums and Weylin Shurn in the back of his car, while Blaylock and Bruce rode in the front seat since they had stayed in the getaway car and would not be recognized. According to the district court's findings of fact, Jermaine, Jermaine's wife, and Terrecho all knew about the robbery plot beforehand.

Ultimately, Blaylock pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d); conspiracy to commit the robbery, id. §§ 371, 2113(a), (d); and using and carrying a firearm during a crime of violence, id. § 924(c). At sentencing Blaylock objected to the four-level increase under U.S.S.G. § 3B1.1(a) for organizing or leading a criminal activity with five or more participants. The court denied her objection. Nonetheless, it granted a downward departure for substantial assistance in the prosecution of her codefendants, see U.S.S.G. § 5K1.1, effectively lowering her total offense level for the robbery and conspiracy counts from 25 to 22. Using that offense level and Blaylock's Category I criminal history as a guide, the court sentenced her to concurrent sentences of 41 months on those counts, the low end of the departure "range" and well below the actual range of 57 to 71 months. The court imposed a consecutive sentence of 120 months on the § 924(c) conviction, the mandatory minimum since the gun was fired. See 18 U.S.C. § 924(c)(1)(A)(iii).

Section 3B1.1(a) provides for a four-level increase if the defendant was "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). In determining the defendant's role, the sentencing court must assess all "relevant conduct" under U.S.S.G. § 1B1.3, not just the elements of the offense charged. U.S.S.G. § 3B1.1(a), intro. cmt. In the case of joint criminal activity, relevant conduct includes "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity ... that occurred during the commission of the offense of conviction ... or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1), (a)(1)(B). Whether the defendant is a leader or organizer of a criminal activity involving five or more people requires a finding of fact that we review for clear error. United States v. Reneslacis, 349 F.3d 412, 416 (7th Cir.2003). That standard has not changed after Booker. See United States v. Parra, 402 F.3d 752, 762-63 (7th Cir.2005) (explaining that the standard of review for denial of a downward adjustment under U.S.S.G. § 3B1.2 is still clear error after Booker); United States v. Turner, 400 F.3d 491, 500 (7th Cir.2005) (reviewing a sentencing court's factual findings for clear error after Booker).

As she did in the district court, Blaylock insists that she was one of only four participants, not five or more. According to Blaylock, the district court should not have counted Terrecho Shurn as a participant even though he helped her and Bruce, Nelums and Weylin escape. A "participant" is someone "who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1, cmt. n. 1. What matters is that he knowingly aided some part of the criminal enterprise. United States v. Hall, 101 F.3d 1174, 1178 (7th Cir.1996); United States v. Michalek, 54 F.3d 325, 333-34 (7th Cir.1995). Blayock reasons that Terrecho was not a participant since, in her view, the robbery was over as soon as the foursome reached Jermaine Shurn's house, and whether she "accepted a ride from Terrecho Shurn, walked home, or called a cab, was immaterial."

This contention ignores much of the record. Terrecho's effort to hide Weylin and Nelums made the ride part of the getaway, not a favor for family and friends. As the district court explained and as Blaylock admitted at sentencing, Nelums was covered in red dye and the others overcome by fumes when they arrived at the Shurns' house. Without a place to clean up and regroup, their flight certainly would have been more obvious. And the ride they received from Terrecho put them further from the stolen getaway car. Indeed, the need to abandon the stolen car was foreseeable and supports the inference that all along they planned a separate leg to their getaway involving the Shurns.

Moreover, in adopting the factual statements in the presentence report, the district court also found that Jermaine and his wife were participants, and nowhere in her opening brief does Blaylock challenge that finding as clearly erroneous. Blaylock instead accuses the government of misrepresenting the record in counting Jermaine and his wife as participants, but it is Blaylock herself who misreads the record. The presentence report identifies Jermaine and his wife as participants and since Blaylock waited until her reply brief to contest that finding, she waived the argument. See United States v. Harris, 394 F.3d 543, 559 (7th Cir.2005) (arguments not raised in opening brief are waived); United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir.2004) (same). So whether the fifth participant was Terrecho or another one of the Shurns, we have no doubt that there were at least five participants in this criminal enterprise.

That takes us to Blaylock's second point. She contends, citing United States v. Guyton, 36 F.3d 655, 662 (7th Cir.1994), that § 3B1.1(a) requires not only that she have been a leader or organizer in a criminal enterprise with five or more participants, but also that she have exerted "control"—whether direct or indirect—over at least four other participants besides herself. Although Blaylock concedes she exercised control over three participants, she insists that there was no evidence that she ever exerted any control over a fourth participant. Blaylock explains that she never even met Terrecho before getting into his car, and as before she says nothing about Jermaine and his wife. Blaylock's objection at sentencing, however, was based only on the number of participants, so this "control" argument was not preserved for appeal and is reviewed for plain error. See United States v. Kamoga, 177 F.3d 617, 620-22 & n. 5 (7th Cir.1999) (arguments raised for first time on appeal are reviewed for plain error).

In Guyton we vacated the sentence of a drug conspirator responsible for the distribution of over five kilograms of crack cocaine because the district court increased his offense level four levels when there was no evidence of control over at least four other members of the conspiracy. Guyton, 36 F.3d at 661-62. Guyton had personally recruited two other conspirators, which showed control—whether direct or indirect—over those two co-conspirators, but there was no evidence of control over two more. Id. at 662. The record showed he fronted drugs to at least four members of the...