In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3104

United States of America,

Plaintiff-Appellee,

v.

Nelson O. Mijangos,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:00CR010-001--John C. Shabaz, Chief Judge.

Argued January 30, 2001--Decided February 14, 2001

 Before Flaum, Chief Judge, and Ripple and Rovner,

Circuit Judges.

 Flaum, Chief Judge. Nelson Mijangos pleaded

guilty to and was convicted of transporting

counterfeit securities in violation of 18 U.S.C.

sec. 2314 and 18 U.S.C. sec. 2, and was sentenced

to 46 months imprisonment. Mijangos now appeals,

claiming that the district court erred when it

applied a four-level upward adjustment under

U.S.S.G. sec. 3B1.1(a) because he was a "leader"

or "organizer" of the check-cashing scheme. For

the reasons stated herein, we affirm.

I. BACKGROUND

 Mijangos was a member of a criminal enterprise

that recruited illegal immigrants to cash

counterfeit checks in various states, including

Wisconsin. Mijangos, who lived in Southern

California and used his home as his base of

operations, dispatched teams of illegal

immigrants, each headed by a group leader,

throughout the United States to cash counterfeit

corporate checks. One such team was arrested on

January 29, 1999 in Madison, Wisconsin. On that

day, Robinson Valencia, Gabriel Lopez, Marvin

Rodriguez, and Pablo Guerrero were arrested

trying to pass counterfeit "Johnson Controls

Dividend" checks to a drive-through teller at the

Firstar Bank in Madison. During a search of the

men’s car, the police discovered a receipt for a

nearby hotel room. The police went to the hotel,

obtained consent to search the room,/1 and found

false identification documents, almost $5000 in
cash, and ten envelopes containing counterfeit

"Johnson Controls Dividend" checks with a face

value of more than $40,000. Also present in the

room were seven persons, ostensibly involved in

the check-cashing scheme, each of whom was

arrested and ultimately prosecuted or pleaded

guilty.

 Four of the co-conspirators, including Valencia

(one of the group leaders), identified Mijangos

to a federal agent as the source of the

counterfeit checks. Valencia told the agent that

Mijangos provided false identification cards and

checks to Valencia’s group and then directed them

to travel to Alabama, Rhode Island, and Wisconsin

to cash the checks on certain days at grocery

stores, retail stores, check-cashing

establishments, pawn shops, and banks. Valencia

also told the agent that the person cashing the

counterfeit check received fifty percent of the

face value of the check and then gave the

remaining amount to his group leader. The group

leader then took his share and sent the rest to

Mijangos. According to phone records of some of

the scheme’s participants, Mijangos was in

frequent contact with the groups via telephone.

 On February 2, 2000, a federal grand jury

returned a three-count indictment against

Mijangos. On May 25, 2000, Mijangos pleaded

guilty to Count III--interstate transportation of

counterfeit securities in violation of 18 U.S.C.

sec. 2314 and 18 U.S.C. sec. 2. The Probation

Office prepared a Presentence Report ("PSR"),

which stated that Mijangos had provided false

identification and counterfeit checks to his

group leaders, and also instructed them as to the

locations and times to cash the checks. The PSR

recommended that Mijangos receive a four-level

upward adjustment under U.S.S.G. sec. 3B1.1 for

his role as an organizer or leader of the scheme.

Mijangos did not object to this recommendation.

Based on the recommendations contained in the

PSR, the district court on August 9, 2000

sentenced Mijangos to 46 months imprisonment, the

upper limit of the sentencing range. In imposing

this sentence, the district court noted the

length, extent, and severity of Mijangos’s

involvement in "this far-flung, almost nationwide

scheme." The court went on to state that,

considering "the numerous areas in which the

defendant was engaged in this serious criminal

and fraudulent conduct, . . . [a] sentence at the

top of the guideline range is necessary to hold

the defendant accountable for his credible (sic)

conduct."

II. DISCUSSION

 Before we can decide the merits of Mijangos’s
appeal, we must first determine whether or not we

are able to reach those merits. The government

presents two arguments as to why we may not.

Citing United States v. Perez, 43 F.3d 1131,

1135-36 (7th Cir. 1994), the government first

argues that Mijangos waived any appeal of his

sentence because he failed to object to the

recommended adjustment contained in the PSR, and

never objected when the court imposed its

sentence. We disagree. Such a failure to object,

in this instance, involves forfeiture and not

waiver. Although waiver and forfeiture are

related doctrines, waiver occurs when a defendant

intentionally relinquishes or abandons a known

right, whereas forfeiture occurs when a defendant

fails to timely assert his rights. See United

States v. Harris, 230 F.3d 1054, 1058 (7th Cir.

2000); United States v. Staples, 202 F.3d 992,

995 (7th Cir. 2000); Perez, 43 F.3d at 1135.

Forfeiture of a right does not extinguish the

right to raise the issue on appeal. See Harris,

230 F.3d at 1058. In the case of forfeiture--as

here--we apply a plain error standard in

reviewing the district court’s decision to assess

an upward adjustment under sec. 3B1.1. See United

States v. Haehle, 227 F.3d 857, 861 (7th Cir.

2000). 

 Additionally, the government contends that this

court lacks jurisdiction to consider Mijangos’s

appeal because the district court sentenced him

within the applicable guideline range. See United

States v. Hardy, 101 F.3d 1210, 1212 (7th Cir.

1996). This court’s jurisdiction to review

sentencing determinations is limited to those

grounds enumerated in 18 U.S.C. sec. 3742(a),/2

see United States v. Coe, 220 F.3d 573, 582 (7th

Cir. 2000), and Mijangos has not clearly

specified the jurisdictional basis for his

appeal. As pointed out by the government, this

court will not review a sentence imposed within

the guideline range "[a]bsent an error of law or

misapplication of the guidelines," United States

v. Solis, 923 F.2d 548, 551 (7th Cir. 1991), and

Mijangos did not articulate any legal error. Yet,

giving Mijangos’s brief a liberal construction,

we read Mijangos to be asserting a challenge to

a sentence adjustment based on unsupported facts.

In his initial brief, Mijangos claims that if the

district court had not concluded that defendant

was "the" leader rather than "a" leader, "the

court would have had a basis to sentence Mijangos

at less than the high end of the sentencing

range." Mijangos clarifies this argument in his

reply brief, suggesting that his appeal is

reviewable under sec. 3742 (a)(1) because the

district court violated the law when it sentenced

him based on "unfounded facts." We have stated

previously that this sort of contention is

sufficient to confer jurisdiction. See United
States v. Ross, 905 F.2d 1050, 1054 n.4 (7th Cir.

1990) (stating that appellate review is preserved

under sec. 3742(a)(1) where the defendant

demonstrates grave doubts as to the veracity of

the information and that the court relied on that

false information in determining the sentence);

see also United States v. Miller, 891 F.2d 1265,

1270 (7th Cir. 1989) (finding that this court has

jurisdiction under sec. 3742(a)(2) where

defendant argues that the district court’s denial

of a downward adjustment resulted from an

incorrect application of the Guidelines). Thus,

we will construe Mijangos’s argument as an attack

on the factual support underlying the district

court’s decision to adjust upward Mijangos’s

sentence by four levels.

 Proceeding to the merits, Mijangos’s claim is

that the district court erred when it increased

his total offense level four points for being a

"leader" under U.S.S.G. sec. 3B1.1 based on

"unfounded facts." The applicability of sec.

3B1.1 is a question of fact that this court

reviews for clear error. United States v. Vivit,

214 F.3d 908, 921 (7th Cir. 2000). Guideline sec.

3B1.1(a) permits a four-level adjustment "[i]f

the defendant was an organizer or leader of a

criminal activity that involved five or more

participants or was otherwise extensive." This

means that the defendant "may simply have

organized or in some way directed" another member

of the conspiracy. United States v. Mustread, 42

F.3d 1097, 1104 (7th Cir. 1994). We have held

that an upward adjustment under sec. 3B1.1 is

warranted for each leader in the conspiracy, see

United States v. McClinton, 135 F.3d 1178, 1191

(7th Cir. 1998); United States v. Miller, 962

F.2d 739, 745 (7th Cir. 1992), and the Sentencing

Guidelines recognize that more than one person

may qualify as a leader or organizer, see

U.S.S.G. sec. 3B1.1(a), commentary at 4; see also

United States v. Golden, 954 F.2d 1413, 1419 (7th

Cir. 1992); United States v. Ramos, 932 F.2d 611,

619 (7th Cir. 1991). Furthermore, an upward

adjustment under sec. 3B1.1 applies to those

defendants whose "relative responsibility" for

the crime exceeds that of their cohorts. United

States v. Morgano, 39 F.3d 1358, 1379 (7th Cir.

1994). Such is the case here. Indeed, Mijangos

admits that "[t]here is no dispute on this record

that [he] was a leader," and does not dispute

that there were at least five participants in his

scheme. Thus he is eligible for a sec. 3B1.1

adjustment regardless of others’ roles in the

crime. 

 Moreover, to determine whether a defendant is

an organizer or a leader, this court considers

"the defendant’s exercise of decision-making

authority, the nature of his participation in
committing the crime, his recruitment of

accomplices, his claimed right to a larger share

of the criminal proceeds, the extent of his

participation in planning or organizing the

crime, the nature and scope of the illegal

activity, and the degree of control and authority

exercised over others." Vivit, 214 F.3d at 922

(quoting United States v. Sierra, 188 F.3d 798,

803-04 (7th Cir. 1999)); see also U.S.S.G. sec.

3B1.1, commentary at 4. This court weighs these

factors "in light of the Guidelines’ intent to

punish with greater severity leaders and

organizers of criminal activity." Sierra, 188

F.3d at 804.

 While we note that the government offers

little, if any, factual support for its

contention that the district court properly

sentenced Mijangos as a leader, our own

independent review of the record supports the

district court’s conclusion. Specifically, the

PSR, on which the district court relied in

sentencing the appellant, discloses that Mijangos

orchestrated his scheme by recruiting group

leaders, which included Valencia and others, to

entice newly arrived illegal immigrants into

cashing counterfeit checks. Although everyone

profited from this scheme, Valencia told the

federal agent that Mijangos received the bulk of

the profits. In addition, as set forth in the

PSR, Mijangos: (1) provided false identification

and counterfeit checks to his group leaders; (2)

instructed the groups to go to various cities to

cash the checks; (3) told the group leaders to

cash the checks only on certain days and at

particular types of stores, banks and pawn shops;

(4) provided bond money when check-cashers were

arrested; and (5) frequently contacted the

leaders and other participants after they had

arrived in a state to pass the fake checks. Thus,

the record demonstrates that Mijangos played an

active role in organizing and perpetuating the

scam.

III. CONCLUSION

 The evidence supports the district court’s

conclusion that Mijangos was "the leader of this

multi-state counterfeit check cashing scheme,

[who] recruited numerous others to travel and

cash checks while he collected half the

proceeds." Thus, for the foregoing reasons, we

Affirm the decision of the district court.

FOOTNOTES

/1 The scope of the consent to search was the

subject of a previous appeal. See United States

v. Melgar, 227 F.3d 1038 (7th Cir. 2000).
/2 18 U.S.C. sec. 3742(a) provides that a defendant

may appeal his sentence if it: 

(1) was imposed in violation of law; 

(2) was imposed as a result of an incorrect

application of the sentencing guidelines; or 

(3) is greater than the sentence specified in

the applicable range to the extent that the

sentence includes a greater fine or term of

imprisonment . . . than the maximum established

in the guideline range . . .; or 

(4) was imposed for an offense for which there

is no sentencing guideline and is plainly

unreasonable.