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# United States Court of Appeals For the Seventh Circuit

No. 12-2153
U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee,

v.

L ORI H ARG I S

, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the So uthern Distri ct o f Indi ana, Evan sv i l l e Di v i sio n. No. 3: 11 CR000 01 -0 01 — Richa rd L. Young, Chief Judg e.
A RGU E D S E PT E MB E R 7, 2012

— D E C I D E D A PRI L 3, 2014

Before C UD AHY

, R OVN E R

, and T I ND E R

, Circ uit Judges.

R OVN E R , Cir cui t Judge. Lori Hargis soli ci ted Lesli e V ashau n Whi te to burn down her hou se so that she could collect a settlement from her insu rance company

. Hargis w as charge d wi th conspi racy to use fi re to commi t wi re fraud, see 18 U.S.C. § 844(m) , and unlaw ful structurin g of ca sh wi thdraw als to
a vo id financi al repo rt ing requirements, see 31 U.S.C. §§ 5313, 5324(a)( 3), 5322(a). She pleaded gui lty to the conspi racy charge in exchange for the government di smi ssing the structurin g2 No. 12-2153 charge, and the di stric t court i mposed an abov e-guide l ines
se ntence of 60 months i mpri sonment. She asserts on appeal that the dist r ict court err ed when i t appli ed upw ard adjustments for obstruction of justic e, see U.S.S .G. § 3C1.1, and her aggr av atin g ro le in the offense, see id

. § 3B1.1(c)

. She also challen ges the reasonableness of her abo v e-gui delines sentence. Because t he facts j ustify the di stric t court’s deci si on to apply the upw ard a dj us tments, and the di stric t judge adequately explain ed hi s rat i onale for i mposing the 60-month sentence, we affi rm the dis tr i ct court’s j udgment. I. Hargis put her house in Henderson, Kentucky , o n t he market, and when i t proved di ffi cult to sell she soli ci ted Whi te to burn do wn the house. S he agr eed to pay hi m $10,000 from the money that she anti ci pated receiving from her homeowner’s-insu rance poli cy

. Whi te burned down the house in Decem

ber 2007, and Hargis and Whi te w ere each charged wi th conspi racy to use fi re to commi t wi re fraud, see 18 U.S.C. § 844(m) , and unlaw ful structurin g of cash wi thdraw als, see 31 U.S.C. §§ 5313, 5324(a)(3), 5322(a)

. Hargis ini tially intended to plead gui lty , but at the changeof-plea hearing she testi fi ed that, after arr angi ng for Whi te to burn down the house, she changed her mind and called Whi te, tellin g hi m not to go thro ugh wi th the plan. She told the di stric t court that she nev er again di scu ssed the i dea wi th Whi te, but he ne ver theless burned down the house three months later

. After hearin g thi s testim ony , the court rej ected Hargis’s plea, reasonin g that she w as unabl e to admi t guilt i f sh e clai med to hav e wi thdrawn from the conspi racy

.No. 12-2153 3 The case w as set for a jury tr i al, but a few days before trial Hargis notifi ed the c ourt that she wi shed to plead gui lty after all. At the change-of-p lea hearin g thi s tim e, Hargis testifi ed that after she solic i ted Whi te’s help, she sp o k e to hi m sev eral tim es about the plan, and instructed hi m to set the house afi re after she ensured that her chi ldren w ere no t in si de. The court accepted Hargis’s gui lty plea on the conspi racy charge, and the government di smi ssed the remaining charge. At sentencing the di stric t court calculat e d a tot al offense lev el of 14. Thi s calculati on reflected an upw ard adjustment of tw o lev els for obstruction of justic e, see U.S.S .G. § 3C1.1, tw o more lev els up for her aggr av atin g ro le in the o ff e nse as an o r g a niz e r or leader

, see id

. § 3B1.1, and a reducti on of tw o lev els for acceptanc e of responsibi li ty , see id

. § 3E1.1(c)

. Wi th a cri minal hi stor y catego ry of I, the court calculated a gui delines range of 15 to 2 1 months and sentenced Hargis abov e that range, to 60 months in pr i son. The abov e-gui delines sentence
w as w arr anted, the court reas o ne d , becau se the sentencing gui deline that appli es to Harg i s’s offense, see id

. § 2K1.3, does not adequately accoun t for the seri ousness of her acti ons in the arson-for -profi t sch eme. And when he addressed the 18 U.S.C. § 3553(a) factors, the di stric t judge no t e d that Hargis had burned down her own chi ldren’s home, inflated her insu rance clai m, and fi led a fri v olous laws ui t again st her ins ur a nce company , costing the company $100,000 in atto rney’ s fees. The court also emphas i zed that Hargis’s acti ons inv olv e d “ a brazen di sregar d for the law

, for the tr uth, and for the harm to other s.”4 No. 12-2153 II. Hargis appeals, fi rst asserting that the di stric t court clearly
err ed when i t conclu ded that she w as an or gani zer or leader of the offense and i mposed a tw o-lev el upw ard adju s tment under U.S.S .G. § 3B1.1(c ). S he insi sts that the court i mpermi ssi bly relied on only one factor—t hat she re crui ted Whi te—in conclu ding that she w as a leader or or gani zer , and that factor alone i s insu ffi ci ent to supp or t the adjustment. But w e have told dis tr i ct courts to “make a commonsen se judgment about the defendant’s re l ative culp abi li ty” when deci ding whether to i mpose an aggr av atin g ro le adjustment, United States v
. W eaver , 716 F .3d 439, 443 (7th Ci r
. 2013 ); s ee United States v
. Figu eroa, 682 F .3d 694, 697 (7th Ci r
. 2012), and t he fa ct s here show that Hargis led the conspi racy: She hatched the i dea to burn down her house and collect the insu rance proceeds; recruited Whi te to carry out the plan; told Whi te whi ch day t o set the house afi re; planned to keep most of the profits from the offense; and atte mpted to maxi mi ze the money that she hoped to receiv e from the insu rance company by inflating the insu rance clai ms, fi ling a fri v olous laws ui t again st the company , and lyin g under oat h a t he r deposi tion in that case. See United States v

. Golden , 954 F .2d 1413, 1418–19 (7 t h Ci r
. 1992) (conc luding that defendant w as or gani zer in arson offense becau se he recruited
co-cons pi rat or and di strib uted proc e e d s from the offense, keeping most for hi mself ); United States v
. Paccione, 202 F .3d 622 , 6 24 (2d Ci r
. 2000) (reasoning that defendants or gani zed
arson becau se they recruited co-cons pi rat or s and gav e them
acces s to proper ty to be set on fi re). The di stric t court there fore di d not clearly err wh en i t conclu ded that Hargis led the conspi racy

.No. 12-2153 5 Hargis next challen ges the di stric t cour t ’ s conclu si on that she obstructed justic e when she testifi ed at the fi rst change-ofplea hearin g that she ha d changed her mind and told Whi te not to burn down the house. See U.S.S .G. § 3C1.1. She contends that her testim ony

, although false, w as nonetheless insu ffi ci ent to supp or t a defense that she had abandoned the conspi racy; there fore, she conclu des, she di d not wi llfu l l y atte mpt to obstruct j usti ce by attempting to ex onerat e herself. W e di sagree with Harg i s and conclu de that her testim ony
w ould have a l l ow ed her to adv ance a wi thdraw al defense. See United States v
. W

alke r, 721 F .3d 828, 840 (7th Ci r
. 2013) (explaining that conspi rat or wi thdraws from conspi racy when he commu ni cates to co-cons pi rat or s that he has abandoned the conspi racy’s go als); United S tat es v. Emerson , 501 F .3d 804, 811 (7th Ci r
. 2007) (sam e). Hargis falsely testifi ed that, after she told Whi te to burn down t he ho us e, she called hi m and told hi m not to go thro ug h wit h the plan. If that testim ony w ere beli ev ed, then Whit e bu rned down the house of hi s own, independent v oliti on. Becaus e thi s testim ony could allow a reasonable factf ind er to conclu de that Hargis may hav e wi thdrawn from the conspi racy , i t i s not an admi ssi on o f t he cri me of conspi racy

, so the di stric t court could no t a ccept her gui lty plea to that cri me. See United States v
. Bahena-Na varro, 678 F .3d 492, 495 (7th Ci r
. 2012) (ex plaining that di stric t court
mus t i denti fy factual basi s for gui lty plea); United States v
. ReaBeltran , 457 F .3d 695, 700–01 (7th Ci r
. 2006) (notin g that factual basi s requirement i s desi gned to prot ect defenda nt wh o may not realize “that hi s conduc t does no t actually fall wi thin the charge”) (internal ci tation and quotat i on marks omi tte d). As a result of her li es t o the di stric t court, i t sch eduled the case for6 No. 12-2153
tr i al, forci ng the government to prepar e for tr i al a nd the possi bi li ty o f an aban donment defense. Ev e n if Hargis’s false testim ony di d not put her gui lt as a
c o- conspi rat or into questi on, i t had the effect of mini mi zing her
ro le in the offense, and that alone i s suffi ci ent to w a r rant the adjustment. See United States v
. White , 582 F .3d 787, 797 (7th Ci r
. 2009). By statin g that she told W hit e no t to go thro ugh wi th the arson, she could hav e led the court to belie v e that Whi te too k i t upon him se l f to burn down the house. And i f beli ev ed, her testim o ny could hav e then influ enced the court to apply a minor ro le reducti on, giving her a shorter sentence. See id. ; United States v
. Sharp , 436 F .3 d 730, 738 (7th Ci r
. 2006). Becaus e Hargis’s false testim ony relat ed to he r gui lt and ro le in the offense, the di strict co ur t corr ectly i mposed the adjustment for o bstructi on of j usti ce. Hargis also rais es t w o challen ges to the reasonab l e ne ss of her abov e-gui delines sentence. She fi rst asserts that the di stric t
co ur t err ed when, in sentencing her on the conspi rac y convic tion, i t consi dered evidenc e that she had commi tte d the underlyin g offen se of arson. But in sentencing for conspi racy , i t i s w ell wi thi n the court’s di screti on to consi der the defendant’s commi ssi on of the underlyin g offense, see U.S.S .G. § 1B1.4. She also ar g ue s t ha t the di stric t court di d not explain or justif y i ts abov e-gui deline sentence. But the court adequately consi dered the factors under 18 U.S.C. § 35 53(a), see United States v
. Hodge, 729 F .3d 717, 721 (7th Ci r
. 2013), and offered compelling justifi cati ons for the se nt e nce, see United States v
. B r adley, 675 F .3d 1021, 1025 (7th Ci r
. 2012); United State s v
. Johnso n , 6 1 2 F .3d 889, 896 (7th Ci r
. 2010). The di stric t judgeNo. 12-2153 7 acknowledged that Ha r g is has no cri minal hi stor y and i s unli kely to commi t future cri mes, see 18 U.S.C. § 3553(a)( 2)(C). He also consi dered sev eral lette rs from Ha r gis ’s fami ly and fri ends atte sting to her goo d character

. But the judge i denti fi ed
sev eral aggr av atin g ci rcums tances. The appli cable gui deline, see U.S.S .G. § 2K1.3(a)(5) , the judge observ ed, deals wi th explosiv e materials and does not appear to be d e si gned to
accoun t for arson-for -profi t cases li ke Hargis’s

. The judge also remark ed that Hargis’s cri me w a s “incredible” becau se she had sch emed and li ed to the court, her insu rance company , and her own fami ly

. See id

. § 3553(a)( 1). As further evidenc e of the seri ousness of Hargis’s offense, see id

. § 3 5 5 3(a)( 2)(A), the judge noted that: She burned down the h ouse that she shared wi th her tw o chi ldren and contained many of their per so na l belongin gs; t he fir e posed a sub stanti al ris k of harm to a nei ghbor who enter ed the house in fear that Hargis’s chi ldren

w ere insi de, as w ell as the fi refighters who responded; and finally , Hargis inflated the amount of loss from the fi re, commi tte d perj ury

, and fi led a fri vo l o us laws ui t again st her insu rance company

. Becaus e the di st r i ct judge di scu ssed fact o rs “suffi ci ently particu larized” to Hargis’s indi vidu al ci rcums tances and adequately justifi ed the sentence, w e find
no err or

. See United States v
. Stinef ast , 724 F .3d 925, 932–33 (7th Ci r . 2013) (qu otat i on marks and ci tation omi tte d). AFF IRM ED.