In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3554

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KELLY PETERSON-KNOX,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 1093—Harry D. Leinenweber, Judge.

____________

ARGUED APRIL 13, 2006—DECIDED DECEMBER 20, 2006

____________

Before COFFEY, KANNE and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge. On October 3, 2002, a federal

grand jury indicted Kelly Peterson-Knox (“Peterson”), and

her fellow conspirators, Michael Knox, Joe Fasanella,

Charlie Rogers, and James Babiarz for mail fraud, 18

U.S.C. §§ 1341, 1346, and 2. The sixteen-count indictment alleged that Peterson and the above-named conspirators engaged in a scheme to defraud Ameritech by

arranging for Ameritech-owned computers to be shipped

and sold for profit to non-Ameritech personnel without

authorization. Peterson initially pleaded not guilty to

each of the sixteen counts charged, but subsequently

withdrew her plea and entered a plea of guilty to one

count of mail fraud, without the benefit of a formal written
2 No. 05-3554

plea agreement. After accepting Peterson’s plea and

entering a judgment of conviction, the district court

judge sentenced her to a term of 30 months’ imprisonment and three years’ supervised release, restitution (to

Ameritech) in the amount of $507,600, $100 special

assessment, and dismissed the remaining fifteen counts.

Peterson appeals her sentence, contending that the district court improperly applied the advisory Sentencing

Guidelines. She argues that the evidence presented at

sentencing failed to support the findings underlying the

three enhancements in her offense level. She requests

that her sentence be vacated and remanded for resentencing. Affirm.

I. Factual Background

According to the indictment, Peterson and Knox (her

husband) were the organizers and lead conspirators in a

plan to defraud the Ameritech company between September of 1999 to early May of 2000. During this time frame

the two became romantically involved and also began to

share a residence. During the course of the fraud, Peterson

served as manager of Ameritech’s Business Communication Services—Desktop Support Division and was responsible for supplying laptop computers exclusively to

Ameritech personnel at various locations within the

United States for use in conducting Ameritech business.

Her position authorized her to order computers and

arrange for the shipment thereof based on orders received

from various department heads within the corporation. It

is interesting to note that Michael Knox, in his capacity

as a manager of the Information Technology Department,

also had the authority to order and ship computers to

Ameritech employees. In connection with their employment, both Peterson and Knox had agreed and were

obligated to follow Ameritech’s Code of Business Conduct,
No. 05-3554 3

which required that employees are not allowed to use

corporate property for personal use nor engage in any

form of fraud. Despite that agreement, the two organized

and operated a scheme to sell and ship Ameritech-owned

computers to themselves and their co-conspirators. The

conspirators, on occasion, also on their own arranged for

the sale of the computers to third parties as part of this

venture. Peterson let her co-conspirators know that she

expected to receive $800 from each sale, while allowing

Fasanella and others in the conspiracy ring to retain

any additional funds received from the transaction.

Peterson and Knox would submit an inflated number of

orders, calling for the shipment of a greater number of new

Dell laptops to be purchased than requested by the

department heads. Due to Peterson’s and Knox’s managerial positions in the organization, the orders were approved without hesitation. Peterson’s department was

solely responsible for the delivery of the computers to

authorized Ameritech employees, thus leaving Peterson

in control of the excess laptops generated with falsified

purchase orders. Peterson or Knox would take possession

of the surplus laptops, and would usually package them

into different boxes. Once received in Peterson’s department they would arrange to address the packages to

their fellow conspirators, fraudulently indicating on

shipping labels that the packages were destined for

Ameritech employees, and arrange for the transfer thereof

to the shipping dock to be delivered via United Parcel

Service (“UPS”).

During the first four months of the operation, Knox and

Peterson addressed the computer shipments to their

shared residence or to Joe Fasanella’s (Peterson’s brother),

his home or work address. Initially, Fasanella would

hold the packages until Peterson was able to pick them

up. In the fall of 1999, Fasanella began selling the new

Dell laptop computers at his home via classified newspaper

advertisements.
4 No. 05-3554

Shortly after Fasanella became a retailer for the stolen

laptops, Peterson inquired of him whether he knew of

anyone else that might be interested in buying or selling

the ill-gotten computers. Fasanella in turn contacted one

Charlie Rogers, who had earlier purchased one of the

computers from him in the fall of 1999, and at the time

expressed an interest in receiving additional laptops.

During an earlier conversation with Fasanella, Rogers

agreed to take part in the retailing of the hot computers

and then began to receive shipments in January of 2000

at his place of employment, a car dealership. Rogers proceeded to sell a number of the computers, and returned the

unsold laptops to Fasanella. Rogers, like Fasanella, was

allowed to keep any proceeds in excess of the $800 per

computer he was obligated to give to Peterson pursuant

to their agreement. In January of 2000 alone, Rogers

received ten shipments, each consisting of four new

laptops. After several weeks Rogers’s immediate superior

at the car dealership ordered him to cease receiving any

more shipments at work.

In light of the inability of Rogers to continue to receive

computers at work, Fasanella attempted to convince

Rogers to accept the shipments at his residence. In fact,

Fasanella went so far as to detail to Rogers the innerworkings of the conspiracy and assured him that no one

at Ameritech had or would detect the missing laptops

because of the supervisory and upper managerial positions

Peterson and Knox held in the company. Fasanella also

explained that because of Ameritech’s lack of sufficient

internal controls and inadequate security, the laptops

were sitting out in the open in the hallways, leaving

them open to the opportunity for almost any passerby to

walk off with a computer. Based on this information,

Rogers agreed to receive the computer shipments at his

home and, in order to ensure his anonymity, he asked that

the laptops be addressed to his father-in-law, “Joe
No. 05-3554 5

Koszela.” Fasanella agreed and arranged for the necessary

arrangements, and the shipments resumed.

From January 26, 2000, to February 10, 2000, Rogers

received approximately sixty of Ameritech’s new Dell

laptops at his home via UPS. Despite the enterprise’s

ongoing success and Fasanella’s assurances that

Ameritech would not be tracking the packages, Rogers

became increasingly wary of his participation in the

illegal sales plot. Thus, after serving as the sole sales

person for 100 hot computers for nearly two months, in

early February of 2000, Rogers told Fasanella he was no

longer interested in continuing to participate in the

computer sale out of his home. Rather than end his

involvement in the theft and sale program and forfeit the

further profit, Rogers suggested that the deliveries be

made to a James Babiarz, who Rogers had learned, after

speaking with a third-party (identified only as “Individual

A”), was willing to also take part in the fraudulent strategy.

Fasanella agreed, and on February 15, 2000, Babiarz

received his first shipment at his home (consisting of seven

new Ameritech laptops) under the alias “John Kelly.”

Initially, Babiarz served solely as a middleman, and

agreed to deliver the computers to Rogers immediately

upon receipt of the same. But, in late February, after

participating as a “go-between” in a number of shipments,

Babiarz’s status changed at his request and he began to

take an active part in the fraudulent sale scheme, retailing a number of the laptop computers from his home.

After shipping some 200 computers over the course of

eight months (Sept. 1999-May 2000), the plot began to

unravel. In early May of 2000, an Ameritech employee

discovered that several UPS shipments were addressed

and being forwarded to non-Ameritech locations. Concerned, the employee contacted Susan Meyer, an investiga-
6 No. 05-3554

1 In all, Peterson and Knox shipped computers to seven nonAmeritech locations between September 1999 and May 2000:

their joint residence, Joe Fasanella’s residence and place of

employment, Charlie Rogers’s residence and place of employment, James Babiarz’s residence, and the workplace of Peterson’s mother, who unwittingly received the computers and

turned them over to Peterson and was not involved in this

prosecution.

tor in Ameritech’s Corporate Security Department. Shortly

after Meyer became aware of the in-house problem she

commenced her investigation and began with a review and

a comparison of the shipping records of UPS and

Ameritech and discovered shortly thereafter that during

the preceding sixteen months a number of deliveries had

been made to non-Ameritech locations to persons whom

she believed were not affiliated with the company. Specifically, Meyer identified each of the addresses participating

in Peterson and Knox’s fraudulent artifice,1

 including

Babiarz. On May 10, 2000, Meyer intercepted and took

custody of a package in Ameritech’s shipping department

addressed to Babiarz’s residence. Meyer summoned law

enforcement officers to Ameritech’s offices, opened and

inspected the suspect package and discovered several new

Dell laptop computers therein. At this time the officers

arranged for a controlled delivery to his address, and

during a search of Babiarz’s residence subsequent to the

delivery and his arrest, officers uncovered several empty

Dell laptop computer boxes. And upon comparing the

serial numbers of the computers with Ameritech’s purchase and delivery records, Meyer determined that each

of the boxes contained one new Dell laptop.

After receiving this information from Meyer, Ameritech

senior officers directed her and other corporate personnel

to continue with an in-depth investigation in hopes of

ascertaining the magnitude of the fraud. Based on their
No. 05-3554 7

2 The investigators took the controlled package and weighed it

knowing the number of laptops in the controlled package. Meyer

calculated that each of the laptops weighed approximately

twenty pounds. Meyer then used that conservative weight

estimate along with UPS records which charge packages per

pound, to determine the number of laptops contained in each of

the packages delivered to the suspect addresses—ultimately

determining that at least 216 laptops had been shipped between

September 1999 and May 2000.

investigation, Meyer and her team discovered that during

the years 1999 and 2000 Ameritech purchased 1,945 new

Dell laptop computers, all of which had been routed and

shipped to and through Peterson’s department. Next they

compared UPS shipping records with Ameritech records

and work orders in hopes that it might assist in determining whether or not that any of the computers had

previously been used. They also contacted a number of

former and current Ameritech employees and searched

stockrooms and other company facilities where computers

might have been stored. Ultimately, Meyer was unable to

account for 646 of the 1,945 laptop computers purchased

by Ameritech and recorded as having been received in

Peterson’s department. Upon further investigation and

review of UPS and Ameritech records, Meyer determined

that at least 216 of the 646 missing laptops were delivered to the addresses of the individuals referred to by

Peterson and Knox in carrying out their fraudulent

scheme.2

After completion of the joint investigation, the evidence

of fraud was presented to a grand jury convened for that

purpose. The grand jury subsequently returned a sixteencount indictment, charging Peterson, Knox, and their

fellow conspirators (Fasanella, Rogers, and Babiarz) with

mail fraud, contrary to 18 U.S.C. §§ 1341 and 1346.

Fasanella went to trial and was found guilty while Rogers,
8 No. 05-3554

3 The parties stipulated that the 1998 Sentencing Guidelines

would apply as they were in effect and applicable at the time

of the commission of the offense. Accordingly, all citations to

the Sentencing Guidelines in this opinion are to the 1998 version.

4 The Presentence Investigation Report (“PSR”) stated that

Peterson’s guilty plea was untimely (namely, that it occurred

after the government had prepared for trial) and did not allow for

the application of the additional one-point reduction permitted

under § 3E1.1(b)(2). Moreover, the report noted that Peterson

had failed to provide a statement detailing her involvement in

the fraud to the government during the course of the pretrial

investigation.

Babiarz and Knox entered guilty pleas. As Peterson’s trial

date became imminent, and when faced with a mountain

of evidence, she withdrew her plea of not guilty and

entered a plea of guilty to one count of mail fraud without

the benefit of a formal written plea agreement on March

18, 2003, approximately two weeks before the matter was

set to proceed to trial.

After the close of evidence at Peterson’s plea hearings,

the government argued that her base offense level of six

should be increased ten points based on the amount of loss

(value of the misappropriated computers), U.S.S.G.

§ 2F1.1(b)(1) (1998);3

 two points for more than minimal

planning, § 2F1.1(b)(2); four points based on her role as

an organizer or leader in the conspiracy, § 3B1.1(a); and

two points given for abusing a position of trust, § 3B1.3.

Ultimately, after awarding a two-level decrease due to

her acceptance of responsibility, § 3E1.1(a),4

 the government calculated Peterson’s total offense level at 22

and recommended a sentence of 46 months’ imprisonment.

Peterson did not contest the applicability of § 2F1.1(b)(2),

conceding that the offense involved more than minimal

planning, but she did object to each of the government’s
No. 05-3554 9

5 Ameritech had purchased each of the new Dell laptop computers for between $2,350 and $2,650.

6 Knox was sentenced to 51 months’ confinement followed by

three years of supervised release and ordered that he jointly

and severally make restitution payments, with each of his codefendants, to Ameritech in the amount of $507,600.

remaining recommended offense level enhancements

referred to above as well as the sentence recommended.

At the close of Peterson’s three sentencing hearings, the

trial judge determined the amount of loss Ameritech

incurred to be somewhere between $500,000 and $800,000,

and thus increased Peterson’s offense level accordingly

by ten points. The court calculated the loss amount

multiplying 216, the number of new computers determined

to have been stolen during this phase of the fraud, by

$2,350 (a conservative estimate of each computer’s value)5

resulting in a loss of $507,600. This amount of loss incurred increased Peterson’s offense level from six to

sixteen. After finding that the offense involved established more than minimal planning, § 2F1.1(b)(2)(a); that

Peterson was an “organizer, leader, manager, or supervisor

in any criminal plan,” § 3B1.1(c); abused a position of trust

in committing the offense, § 3B1.3; and had accepted

responsibility, § 3E1.1(a); the judge calculated Peterson’s

adjusted total offense level at 19, yielding a guideline

sentencing range of 30 to 37 months. Noting that he saw

no reason to exceed the minimum under the Guidelines,

the trial judge sentenced Peterson to a term of 30 months’

confinement followed by three years of supervised release,

a $100 special assessment and ordered that she jointly

and severally make restitution payments, with each of her

co-defendants, to Ameritech in the total amount of

$507,600.6

 The following day, the remaining fifteen counts

of mail fraud filed against Peterson were dismissed
10 No. 05-3554

pursuant to the agreement with the prosecutor’s office on

motion of the government.

II. Issues

On appeal Peterson raises three challenges to the

sentencing court’s application of the Guidelines. She

contends that the imposition of a ten-point increase in her

offense level pursuant to § 2F1.1 was improper because the

sentencing judge’s calculation of the loss was not supported in the evidence. She also argues that the district

court’s determination that she was an organizer, leader,

manager, or supervisor of the fraud for purposes of

§ 3B1.1(c) was erroneous. And further, she disputes the

imposition of a two-level increase based on her abuse of

a position of trust, § 3B1.3.

III. Discussion

A. Calculation of Loss

Section 2F1.1(b) of the Sentencing Guidelines applies to

crimes of fraud and deceit and permits a sentencing

judge to increase a defendant’s guideline offense level

pursuant to the amount of monetary loss resulting from

the defendant’s criminal activity. The district court’s

finding that Ameritech suffered a loss of $507,600 due

to the criminal actions of Peterson and her co-conspirators resulted in the ten-point increase in her offense level.

A trial court’s calculation of the loss caused by a defendant’s fraudulent conduct is a finding of fact, reviewed on

appeal for clear error only. United States v. Dillard, 43

F.3d 299, 309 (7th Cir. 1994) (citing United States v.

Strozier, 981 F.2d 281, 283 (7th Cir. 1992)). “For purposes

of [§ 2F1.1(b)(1)], the loss need not be determined with
No. 05-3554 11

precision.” U.S.S.G. § 2F1.1, Application Note 9. Rather,

“[t]he [sentencing] court need only make a reasonable

estimate of the loss, given the available information.” Id.

When appealing a district judge’s calculation of loss, the

defendant bears a heavy burden in his attempt to prove

that the determination “was not only inaccurate but

outside the realm of permissible computations.” United

States v. Lopez, 222 F.3d 428, 437 (7th Cir. 2000) (citing

United States v. Hassan, 211 F.3d 380, 383 (7th Cir.

2000)). “Reversal is warranted only if the district court’s

loss calculation evokes a ‘definite and firm conviction that

a mistake has been made.’ ” United States v. Schaefer, 291

F.3d 932, 937 (7th Cir. 2002) (quoting United States v.

Strache, 202 F.3d 980, 984-85 (7th Cir. 2000)).

In the present case, we are convinced that the government offered more than sufficient evidence to establish the

total number of computers shipped to the various addresses associated with the fraud (216) as well as evidence pertaining to the value of each of the new Dell

laptop computers purchased by Ameritech ($2,350). Next

the government established a calculation of the loss

based on the aggregate value of the number of laptop

computers shipped to those addresses ($507,600). Peterson

did not dispute that 216 computers were taken from

Ameritech offices without consent as part of the scheme

much less the estimated value of each new Dell laptop.

Instead, her sole contention was that the first twenty-four

illegally misappropriated computers were used rather

than new laptops, and, thus, the government’s loss calculation was inaccurate (inflated). In support of her

position, Peterson presented documentary evidence of an

interview between one of her co-defendants, Joe Fasanella,

and the government. During the interview, Fasanella

(Peterson’s brother) stated that the computers he initially

received “appeared to be used.” Peterson goes on to argue

that Fasanella’s statements, combined with her conten-
12 No. 05-3554

7 According to documentary evidence, which Peterson agrees is

accurate, the first twenty-four computers were shipped from her

department between the fourth of September, 1999, and December 14, 1999.

tion that the first twenty-four computers were in fact

used, establishes clear error was committed on the part of

the district judge when he calculated the amount of loss.

We disagree.

In response to Peterson’s contention at sentencing that

some (24) of the computers were in fact used, the government presented evidence to the contrary, including the

testimony of Ameritech Investigator Susan Meyer, who

was responsible for conducting the in-depth investigation

of the fraud. When directly questioned if, during the

course of her investigation, she discovered any evidence

supporting Peterson’s claim that some of the 216 computers at issue were used, Meyer was emphatic and clear

that “[she] found no evidence to that [effect].” Meyer also

testified that in September of 1999, Ameritech instituted

new tracking procedures for its used laptops, ensuring

an accurate record of their whereabouts once they had

been shipped or returned to the company. In corroboration

of Investigator Meyer’s testimony that each of the computers was in fact new rather than used, the government

introduced the prior sworn testimony of Charlie Rogers

(from Fasanella’s trial), another of Peterson’s co-defendants. At the trial of Peterson’s brother, Joe Fasanella,

Rogers testified that he purchased a new laptop computer

from Fasanella in the fall of 1999, during the time period

when Peterson contends that only used computers were

shipped.7

 This evidence is obviously in direct contradiction to that of Peterson who stated that the first twentyfour computers were, in fact, used laptops.

And while Peterson contends that Fasanella’s statements should be afforded significant weight when cal-
No. 05-3554 13

culating the amount of loss, considerable evidence to the

contrary was presented to the trial judge. As an example,

in his written statement Fasanella admitted that he had

never opened any of the packages of the purportedly used

computers, and simply relied on Peterson’s representations

to him when arriving at his conclusion that they were

used. Furthermore, several other statements Fasanella

made during the course of the interview were in direct

conflict with the documentary evidence presented to the

court. Because the sentencing judge’s calculation of loss

was formulated only after resolving the factual dispute

over the question of whether the laptops were new or

used—which was inherently dependent on his assessment

of the credibility of Meyer and Rogers—we give special

deference to his finding, as he had the best opportunity to

observe the witnesses while testifying in the courtroom.

Mlsna v. Unitel Communications, Inc., 91 F.3d 876, 880

(7th Cir. 1996) (“district court determinations of credibility

are entitled to special deference, since they often depend

on a witness’s demeanor and appearance on the stand,

from which appellate courts are totally removed”) (citations omitted). See also United States v. Mancillas, 183

F.3d 682, 701 n. 22 (7th Cir. 1999) (“[w]e do not secondguess the [trial] judge’s credibility determinations because

he or she has had the best opportunity to observe the

verbal and nonverbal behavior of the witnesses focusing on

the subject’s reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye

contact, posture and body movements, as well as confused

or nervous speech patterns in contrast with merely looking at the cold pages of an appellate record”) (alterations

in original) (United States v. Garcia, 66 F.3d 851, 856 (7th

Cir. 1995)). After review, we hold that Peterson has failed

to establish that the district court erred in calculating the

amount of loss and imposing a ten-point increase in her

offense level pursuant to § 2F1.1(b).
14 No. 05-3554

B. Role in the Offense

Peterson next claims that it was clear error for the

district court to find that she was an organizer, leader,

manager, or supervisor under the Guidelines. Again she

argues that the judge’s determination was not supported

with sufficient evidence. Specifically, she avers that the

record was barren of any evidence establishing that she

had recruited anyone to participate in the plot or that

she exercised control over any of the other participants.

We disagree.

Under U.S.S.G. § 3B1.1(c), a defendant’s offense level is

increased by two points “if the defendant was an organizer,

leader, manager, or supervisor” of the criminal activity

for which he or she was convicted. In determining the

provision’s applicability, a sentencing court should consider the following factors:

the exercise of decision making authority, the nature

of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree

of control and authority exercised over others.

U.S.S.G. § 3B1.1, cmt. (n.4). No single, particular factor

need be present to justify an offense level increase, United

States v. Fones, 51 F.3d 663, 665 (7th Cir. 1995) (citations

omitted), nor must each be afforded equal weight, United

States v. Matthews, 222 F.3d 305, 307 (7th Cir. 2000).

Rather, each factor should be weighed in light of the

Guideline’s specific intent: “to punish with greater severity

the leaders and organizers of criminal activity.” United

States v. Sierra, 188 F.3d 798, 804 (7th Cir. 1999). See also

Fones, 51 F.3d at 665 (“[t]he central purpose of § 3B1.1 is

to punish a defendant for his relative responsibility

within a criminal organization . . . . [h]ence, no single
No. 05-3554 15

factor is essential to determining whether a sentence

should be adjusted under [the guideline]”) (internal

citations omitted). “The district court’s determination

concerning the defendant’s role in the offense is a finding of fact, subject to a clearly erroneous standard of

review on appeal.” United States v. Hankton, 432 F.3d 779,

793 (7th Cir. 2005) (internal quotation marks and citation

omitted).

At sentencing, the government presented a wealth of

information (factors) in support of its position that Peterson was an organizer or leader within the meaning of

§ 3B1.1(a). Ameritech Investigator Susan Meyer testified

that Peterson received almost every new Dell laptop

computer ordered by Ameritech and shipped out to designated recipients. Because of this, Peterson obviously had

significant control over the number of computers ordered

and shipped out. There is no doubt that Peterson alone

was responsible for the receipt and shipment of approximately forty-five laptop computers to her co-conspirators

between March and May of 2000. Thus, the totality of

information in the record certainly weighs heavily in

favor of finding that Peterson was an organizer, leader or

manager under the Guidelines. See Fones, 51 F.3d at

666 (discussing the defendant’s control over the amount

of contraband transacted in the context of evaluating

the applicability § 3B1.1).

In further support of a role adjustment, the government presented more than sufficient evidence demonstrating the considerable degree of control Peterson

exercised over many of the co-defendants and the entire

fraudulent scheme. It offered statements from Peterson’s

brother, Joe Fasanella, wherein he detailed how Peterson

had approached him and asked if he knew anyone interested in buying or selling the computers. Based on that

conversation, Fasanella enlisted the services of Charlie

Rogers, who, at a later date, recruited James Babiarz.
16 No. 05-3554

Fasanella’s enlistment of Rogers, at Peterson’s insistence,

like her ability to dictate the size and frequency of the

shipments, is indicative of Peterson’s leadership role and

control within the criminal enterprise and satisfies

application of § 3B1.1(c).

Fasanella’s statements also demonstrated that Peterson

and Knox received the bulk of the ill-gotten proceeds from

the criminal activity. During a meeting with law enforcement officers, Fasanella stated that Peterson insisted that

she receive $800 for each of the computers sold under the

table. He estimated that he turned over to Peterson and

Knox between $70,000 and $80,000 cash in total to the

fraudulent scheme. Bank account records confirmed

Fasanella’s statement, revealing that during the course

of the fraud Peterson and Knox deposited approximately

$60,000 in cash into their accounts plus an additional

$6,000 in cash that was used to pay various expenses

associated with Peterson and Knox’s wedding in August

of 2000.

In spite of the evidence presented to the trial court,

Peterson somehow justified characterizing her role as

only that of a “middleman,” fronting contraband (computers) to the enterprise’s fellow participants in a manner

similar to that commonly found in drug cases, undeserving

of an increase under § 3B1.1. See United States v. Vargas,

16 F.3d 155, 160 (7th Cir. 1994); United States v. Brown,

944 F.2d 1377, 1381-82 (7th Cir. 1991); United States v.

Guyton, 36 F.3d 655 (7th Cir. 1994). We agree with the

sentencing court that the facts in this case clearly establish that Peterson’s role in this criminal offense was far

more important than that of a “middleman.” She determined the number and frequency of the fraudulent shipments, participated in the recruitment of additional

members to carry out the fraudulent plot, and set the price

she would be paid for each computer sold. Peterson was

the heart, soul and main artery of the fraud. This being
No. 05-3554 17

the case, we refuse to hold that the district court clearly

erred in applying § 3B1.1(c).

C. Abuse of Trust

Section 3B1.3 of the Sentencing Guidelines provides for

a two-point increase in a defendant’s offense level if “the

defendant abused a position of public or private trust . . .

in a manner that significantly facilitated the commission

or concealment of the offense.” In determining whether

the provision applies, this court employs a two-part test

that tracks the Guidelines. United States v. Sierra, 188

F.3d 798, 802 (7th Cir. 1999). Initially, we review “whether

the defendant occupied a position of trust; and [second, we

examine] whether [the] abuse of [that] position of trust

significantly facilitated the crime.” United States v.

Stewart, 33 F.3d 764, 768 (7th Cir. 1994). The district

court’s determination in each respect is a factual one,

which we review for clear error. Id.

Because Peterson does not argue that her management

position was not a position of trust, we need only determine whether her abuse of that position facilitated the

offense. See, e.g., Palmquist v. Selvik, 111 F.3d 1332, 1342

(7th Cir. 1997) (“Even an issue expressly presented for

resolution is waived if not developed.”). A defendant’s

position of trust significantly facilitates a crime for

purposes of § 3B1.3, “if the defendant’s position made it

substantially easier to commit or conceal the crime,

significant facilitation occurred.” Sierra, 188 F.3d at 802

(citing Stewart, 33 F.3d at 768). In an effort to prove the

district court committed clear error, Peterson goes out on

a limb contending that Ameritech’s lack of proper safeguards and controls against computer theft facilitated her

commission of the fraud. Her theory falls far short of

achieving its desired result. It was Peterson’s position of
18 No. 05-3554

trust that enabled the fraud to commence and continue

until Meyer took over.

Peterson violated her position of trust by taking advantage of the company’s lack of safeguards, checks and

controls in the purchasing and shipping departments.

Peterson was able to create a surplus computer inventory

because Ameritech had entrusted her with the authority

to order, receive and distribute laptops to its employees

without installing a foolproof auditing and control system. The orders she submitted to Ameritech’s purchasing department were almost automatically “approved

without hesitation,” ensuring that her criminal activity

(false orders) would go undetected. Obviously she violated her managerial position and Ameritech’s Code of

Business Conduct. Also, Peterson’s position enabled her to

create and destroy shipping labels used in furtherance

of the scheme and to direct unwitting subordinates to

ship computers to non-employees, which concealed her

personal involvement, without arousing suspicion. From

the wealth of evidence presented to the district judge, it is

apparent that Peterson’s position and authority significantly facilitated the commission of the offense and the

concealment of her involvement, thereby justifying the

increase in the period of confinement under § 3B1.3.

IV. Conclusion

We hold that the district court did not err in imposing

a ten-point increase in Peterson’s offense level based on

its calculation of loss, pursuant to § 2F1.1(b); a twopoint increase based on its determination that she was

an organizer or leader of the criminal activity, under

§ 3B1.1(c); and a two-point increase based on its finding

that she abused a position of trust, as contemplated by

§ 3B1.3. Peterson’s sentence is AFFIRMED.
No. 05-3554 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-20-06