### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 2667

U NITED S TATES OF A MERICA , Plaintiff

- Appellee
,

v.

R OY K. S HANNON , J R

. , Defen dant

- Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1: 14

- cr

- 000 74

— Matthew F. Kennelly
, Judge

.

____________________
A RGUED M AY 31, 2016

— D ECIDED S EPTEMBER 7
, 2016

____________________

Before E ASTERBROOK and W ILLIAMS , Circuit Judges and Y ANDL E , District Judge

. ∗

Y

ANDLE , District Judge . Following a bench trial, Roy Shannon, Jr. was found guilty of one count of conspiracy to commit wire fraud, two counts of identity the ft, and two counts of aggravated identity theft

. Shannon was sentenced

∗ Of the Southern District of Illinois, sitting by designation.2 No. 15

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to 14 months on C ounts 1, 2 and 3, to run concurrently with each other, and 24 months on C ounts 4 and 5
, to run concurrently with each other , b ut consecutively as to C ounts 1

– 3. Shannon’s total prison sentence amounted to 38 months of
incarceration followed by a 3 year term of supervised release. On appeal, Shannon challenges his conviction and sentence, arguing first that the G overnment’s evidence was heavily dependent of the un corroborated testimony of Marcus Taylor, a cooperating witness with “ powerful motivation to falsify .” As such, Shannon contends that the evidence was insufficient to establish beyond a reasonable doubt that he is guilty of the charged offenses. Secondly, S hannon challenges the district court’s application of a 2

- level Sentencing Guidelines enhancement for the organizer or leader of a criminal enterprise. 1 We reject both challenges and affirm his conviction and sentence. I. Background
On October 9, 2014, a federal grand jury returned a five count second superseding indictment charging Shannon with one count of conspiracy to commit wire fraud (Count 1); two counts of identity theft (Counts 2 and 3); and two counts of aggravated identity theft (Counts 4 and 5) . On November 3, 2014, the case proceeded to a bench trial before the district judge during which the judge heard testimony from Marcus Taylor, seven identity theft victims, two FBI case agents, an FBI fingerprint examiner, a computer forensic ex-

1 Shannon has withdrawn his argument that he received ineffective assistance of counsel at trial.No. 15

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aminer, an IRS records custodian, a bank custodian and a phone records custodian. At trial, the Government produced evidence that f rom November 2013 through February 2014, Shannon conspired with James Williams to devise and undertake a scheme to obtain money from t he IRS through fraud and deceit. Shannon and Williams agreed to obtain stolen identities and to fraudulently obtain tax refunds by using those identities to file false and fraudulent tax returns

— with the assistance of Marcus Taylor, an accountant. Shannon and Williams obtained 107 stolen identities, and provided those to Taylor, directing him to use the stolen identities to prepare and file false tax returns. Unbeknownst to Shannon and Williams, Taylor was cooperating with the United States G overnment. Tayl or approached the FBI after discovering that Shannon had been having an affair with his (Taylor’s) wife. Thereafter,under the supervision of the FBI, Taylor recorded four meetings and three phone calls between himself and Shannon. At the conclusion of the 4

- day trial, Shannon was convicted on all counts. II. Analysis

A. Conviction This Court has held repeatedly that a guilty verdict will only be overturned if the Court conclude s, “[I]n a light a most favorable to the prosecution, that no rationale trier o ffact could have found the defendant guilty beyond a reasonable doubt.” S ee United States v. Wasson , 679 F.3d 938 (7th Cir. 2012); Jackson v. Virginia , 443 U.S. 307, 318

– 319 (1979); United States v. Doody , 600 F.3d 752, 753 (7th Cir. 2010). This is a high bar

— establishing that the evidence is insufficient is a nearly4 No. 15

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insurmountable task. S ee United States v. Taylor , 637 F.3d 812, 815 (7th Cir. 2011).

Shannon asserts that the district court placed “undue reliance” on the testimony of Marcus Taylor which la cked sufficient credibility. Specifically, Shannon points out that Taylor testified pursuant to a grant of immunity and argues that his testimony was significantly motivated by his personalresentment against Shannon, based on his belief that Shannon had a n affair with his (Taylor’s) wife. Moreover, Shannon contends that he would not have been found guilty without Taylor’s “tainted” testimony.

T he G overnment maintains that the district court correctly weighed the evidence and that Taylor’s testimony was

su bstantially corroborated by the testimony of several other witnesses as well as by video and audio recorded evidence. Additionally, the Government argues that the district judge admittedly considered Taylor’s testimony with skepticism and, in light of the other evidence presented, appropriatelyconcluded that the Government proved Shannon’s guilt beyond a reasonable doubt. We agree.The district court was clearly aware of Taylor’s credibility problems and observed, “[t]here is no question Mr. Taylor had and has a very significant motive to, for want of a better word, bury Mr. Shannon.” With that in mind, the court proceeded to identify and assess other factors that itviewed as corroborating Taylor’s testimony, including: recordings of interactions between S hannon, Taylor and Williams; the laptop Shannon gave to Taylor which contained a list of victim names and identifying information including dates of birth and social security numbers; the masking software installed on the laptop; and the degree to whichNo. 15

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Sh annon tried to exert control over Taylor. On these facts, the district court’s finding of guilt beyond reasonable doubt is not subject to reversal.

B. Sentencing Guideline s Enhancement Shannon’s sentencing took plac e over the course of three days d uring which the district court heard and ruled on t he objections to the Presentence Investigation Report (“ PSR ”), including Shannon’s objection regarding his leadership role. The G overnment argued that a 4

- level enhancement app lied under Guideline § 3B1.1( a) bas ed on evidence showing Shannon to be the lead er or organizer of the conspiracy. T he probation office agreed that Shannon planned and organized the scheme, but recommended a 2

- level enhancement instead be cause the number of people involved in the conspiracy qualified Shannon as a supervi sor under § 3B1.1(c). The
court found that based on the weight of the evidence, Shannon was a supervisor of the criminal activity. We review the district court’s underlying fa ctual findings with respect to the application of a sentencing enhancement for clear error. S ee United States v. Harris , 791 F.3d 772, 778 (7th Cir. 2015). We review de novo the facts used to reach said judgment. Id. at 778. U.S.S.G. § 3B1.1(c) provides, i n part, that “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity other t han described [in subsections ( a ) and ( b ) ] increase by 2 levels.” U nder § 3B1.1(c) , a manager or supervisor is one who, “[e]xercise[s] control and authority over another,” such as “[w]hen he ‘tells people what to do and determines whether they’ve done it.’” S ee United States v. Dade , 787 F.3d 1165, 1167 (7th Cir. 2015) (quoting United States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012)).6 No. 15

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Here , there was evidence that Shannon assigned his co

conspirators their roles within the conspiracy . He also recruited his co

- conspirators and brought them together for purposes of executing the fraudulent scheme. The re is also evidence that shows Shannon exe rted significant control over his co

- conspirators and their actions in furtherance of the scheme. In one instance
, when Taylor asked Shannon if he should co ntinue filing the bogus returns after having alrea dy filed a first batch, Shannon gave the “green li ght.” In that same exchange, Shannon said that “[i]f my money gets f ucked up, I’m gonna kill everybody involved ... ”

. B y all indications
, t he district court appropriately considered the relevant facts in concluding that the preponderance of the evidence supported a finding that Shannon was a “supervisor” under § 3B1.1(c) of the Sentencing Guidelines. The court did not err.

III. Conclusion

W e AFFIRM Sha nnon’s conviction and sentence.