As part of a larger scheme of mortgage fraud, Tomas Leiskunas acted as the straw purchaser of seven properties. He was later indicted and pled guilty to wire fraud. At sentencing, he sought a minor role adjustment, claiming that he acted at the direction of others and had no knowledge of the big-picture scheme. The sentencing judge denied the adjustment, but the Seventh Circuit overturned that decision earlier today. Along the way, the court helpfully clarified that the minor role analysis should focus on the defendant’s relative culpability, and not on whether his acts were necessary to the scheme or repeated many times. Here is what the court said:
A minor role adjustment is appropriate if the defendant is “substantially less culpable” than the average participant, but whose role could not be described as minimal. Haynes, 582 F.3d at 709; see also U.S.S.G. § 3B1.2, cmt. n. 3(A) & n. 5. . . .
Leiskunas argues that the court erred in interpreting and applying U.S.S.G. § 3B1.2, which we review de novo. During sentencing, in its evaluation of whether a minor role adjustment was appropriate, the court said:
“I can’t say that you had a minor role here, because you were in a sense necessary for this to happen. . . . If this were just one transaction or maybe two, I could say it’s a much closer case. Seven, I can’t say it’s a closer case. . . . What makes you a minor participant is if you just had a transitory brush with the activity, or it was an opportunistic moment that somebody took advantage of in just making one or two bad decisions.”
The court misinterpreted the minor role reduction application in two ways. First, playing a necessary role does not definitively prevent that same role from being minor. This principle is readily seen in the wealth of cases where drug couriers receive the benefit of the adjustment, even though their role is necessary to the drug distribution. Second, a criminal participant that commits a minor act is not necessarily precluded from minor role consideration simply because the minor act is repeated. It is true that a court can consider whether a defendant has repeatedly committed an act in making its sentencing determination. See United States v. Saenz, 623 F.3d 461, 468 (7th Cir. 2010) (remanding for minor role sentence reconsideration where record indicated that drug courier committed offense on single occasion). But a defendant’s repeated, negligible participation in a fraudulent scheme does not, by itself, doom qualification for a minor role adjustment. Id. (a “drug courier should neither automatically receive nor automatically be precluded from receiving a role reduction.”). (14-15)