### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3611

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T RAVIS O LIVER

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 3:14

‐ cr

‐ 50009

‐ 1

— Philip G. Reinhard

, Judge

.

____________________

A RGUED S EPTEMBER 27, 2017

— D ECIDED O CTOBER 17, 2017

____________________

Before W OOD

, Chief Judge

, and F LAUM and K ANNE

, Circuit

Judges

.

F LAUM

, Circuit Judge

. Travis Oliver pled guilty to wire

fraud for defrauding investors. The district court sentenced

Oliver to fifty

‐ one months in prison followed by three years

of supervised release. Oliver challenges that sentence on ap

‐ peal. He argues that the district court erred by failing to con

‐

sider unwarranted sentencing disparities, relying on inaccu

‐2 No. 16

‐ 3611

rate information, not calculating the Guidelines range for su

‐ pervision, and imposing a two

‐ level leadership enhancement.

For the reasons stated below, we affirm.

I. Background

Between 2009 and 2012, Travis Oliver and his co

‐ defend

‐

ant Todd Smith 1 defrauded investors in Electus Asset Hold

‐ ings, LLC (“Electus”). Oliver, the sole managing member of

Electus, recruited Smith to help solicit investors in the Rock

‐

ford, Illinois area. At Oliver’s direction, Smith mailed flyers to

potential investors inviting them to attend retirement plan

‐ ning seminars. At these seminars, Smith told investors that

their funds would be invested in Electus, that they could

withdraw their funds at any time, that their initial invest

‐

ments would be returned within a year, and that their invest

‐

ments would yield a guaranteed monthly return.

In reality, the investors’ money was not invested in Elec

‐

tus. Instead, Oliver used the money to pay personal expenses,

including commissions for himself and Smith, and to make

interest and principal payments to other Electus investors. He

placed the remaining funds in risky, non

‐ guaranteed invest

‐

ments, including Cash Flow Financial (“CFF”), a large Ponzi

scheme operated by Alan Watson.

To conceal the fraud, Oliver mailed monthly statements

and Internal Revenue Service 1099

‐ INT forms to Electus in

‐

vestors, which falsely claimed that the investments had

earned interest. When investors asked to have their invest

‐

ments returned, Oliver and Smith told them that their checks

1 The federal indictment against Smith, who was charged with murder

by state authorities, is still pending.No. 16

‐ 3611 3

would be issued soon, that their checks had been lost in the

mail, or that their money had been invested in a company

whose assets were frozen pursuant to an investigation by the

Federal Trade Commission. As a result of this scheme, Elec

‐

tus’s investors lost a total of $983,654.

On February 11, 2014, a grand jury indicted Oliver on fif

‐

teen counts of wire fraud in violation of 18 U.S.C. § 1343 and

eight counts of mail fraud in violation of 18 U.S.C. § 1341. On

May 31, 2016, Oliver pled guilty to one count of wire fraud.

The judge accepted the guilty plea and ordered the probation

office to prepare a presentence investigation report (“PSR”).

In the PSR, the probation office determined that Oliver’s

total offense level was twenty

‐ four. Starting with a base of

‐

fense level of seven, U.S.S.G. § 2B1.1, the probation office im

‐ posed the following enhancements: a fourteen

‐ level enhance

‐

ment because the total loss was greater than $550,000, id.

§ 2B1.1(b)(1)(H); a two

‐ level enhancement because the offense

involved ten or more victims, id. § 2B1.1(b)(2)(A)(i); a two

‐

level enhancement because Oliver abused his position of trust

as Electus’s sole managing member to commit the offense, id.

§ 3B1.3; and a two

‐ level enhancement because Oliver acted in

a leadership capacity in carrying out the fraudulent scheme,

id. § 3B1.1(c). The probation office also gave Oliver a three

‐

level reduction for his timely acceptance of responsibility. Id.

§ 3E1.1(a)–(b). With a total offense level of twenty

‐ four and a

criminal history category of I, the Sentencing Guidelines sug

‐ gested a prison term of fifty

‐ one to sixty

‐ three months and a4 No. 16

‐ 3611

supervised release term of one to three years. In his sentenc

‐ ing memorandum, Oliver stated that he did not object to the

factual determinations or Guidelines calculations in the PSR. 2

On September 19, 2016, the district court held a sentencing

hearing. At the beginning of the hearing, Oliver reiterated to

the court that he did not object to the PSR’s factual findings or

Guidelines calculations. Accordingly, the court adopted the

PSR in those respects.

The district court proceeded to hear from several of Oli

‐

ver’s victims. Two victims testified that Oliver caused them

severe financial and personal hardship. In addition, the PSR

included a statement from a third victim who stated that she

had “problems with [her] nerves” and “cried for days.” She

added: “My husband had heart trouble and this didn’t help.

He has passed since then.”

Next, the court asked the government whether other crim

‐

inal prosecutions arose from the related Ponzi schemes into

which Oliver had invested money. The government informed

the court that Watson had been convicted of wire fraud in the

Eastern District of Virginia, sentenced to twelve years in

prison, and ordered to pay $37 million in restitution.

After hearing from both parties, the district judge told Ol

‐

iver:

I just want you to know at the outset that the

only redemption—and you’re never going to

pay these people back, whether you’re working

2 Oliver did, however, object to certain conditions of supervised re

‐

lease. Those conditions are not at issue in this appeal.No. 16

‐ 3611 5

or whether I sentence you to the Bureau of Pris

‐

ons and you come out. These persons, many of

them are going to be dead, and you’ve taken

some years off their lives just by what your con

‐

duct has done and the tragedy and emotional

effect it’s had on these victims.

The court then considered Oliver’s mitigation arguments

and addressed each of the statutory sentencing factors under

18 U.S.C. § 3553(a). The district court ultimately imposed a

prison term of fifty

‐ one months followed by three years of su

‐ pervised release, both of which fell within the recommended

Guidelines range. With respect to supervised release, the dis

‐

trict judge noted that he was “impos[ing] the maximum of

three years because of all the reasons [he] just stated” and to

“try to get restitution over that period of time.” The court or

‐

dered Oliver to pay $983,654 in restitution to his victims and

declined to order restitution jointly and severally “because

there’s been no other person found to be responsible.”

After announcing Oliver’s sentence and the conditions of

supervised release, the district judge asked defense counsel

whether there was “any argument of yours as to the sentence

that I haven’t addressed.” Defense counsel responded, “Not

at this time, Judge. The special conditions I think the court has

covered, and in terms of covering the terms of the court’s sen

‐

tence, I think the court has covered that appropriately.”

The district court issued its written judgment on Septem

‐

ber 20, 2016. This appeal followed.

II. Discussion

On appeal, Oliver argues that the district court procedur

‐ ally erred by failing to address an unwarranted sentencing6 No. 16

‐ 3611

disparity, making unsupported factual determinations, and

failing to calculate the Guidelines range for his term of super

‐

vised release. He also contends that the district court plainly

erred by imposing a two

‐ level leadership enhancement.

A. Standard of Review

Generally, we review the district court’s sentencing proce

‐

dures de novo and its factual findings for clear error. See

United States v. Pulley

, 601 F.3d 660, 664 (7th Cir. 2010). How

‐

ever, “[m]ore deference is due

... where an appellant failed to

properly raise a claim below either by waiver or forfeiture.”

United States v. Seals

, 813 F.3d 1038, 1044 (7th Cir. 2016). If a

defendant “intentionally relinquishes or abandons a known

right,” the issue is waived and cannot be reviewed on appeal.

Id. at 1044–45 (quoting United States v. Walton, 255 F.3d 437,

441 (7th Cir. 2001)). In contrast, if a defendant merely “fails to

raise an argument due to accident or neglect,” the argument

is forfeited and is reviewed for plain error. Seals, 813 F.3d at

1045. “Under plain

‐ error review, the defendant must show

that (1) there was error, (2) it was plain rather than subject to

reasonable dispute, (3) it affected his substantial rights, and

(4) the court should exercise its discretion to correct the error

because it seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” Id.

B. Procedural Errors

As a threshold matter, the government argues that Oliver

waived or, alternatively, forfeited his right to challenge any

procedural errors at his sentencing hearing.

To support its waiver argument, the government points to

the exchange that occurred between the district court and Ol

‐

iver’s defense counsel at the end of the sentencing hearing.No. 16

‐ 3611 7

Specifically, after imposing sentence, the district court asked

Oliver’s defense counsel if there was “any argument of yours

as to the sentence that I haven’t addressed.” Oliver’s defense

counsel responded that there was not.

This argument is not persuasive. “Waiver principles must

be construed liberally in favor of the defendant.” United States

v. Anderson

, 604 F.3d 997, 1002 (7th Cir. 2010). And “[w]here

the government cannot proffer any strategic justification for a

decision, we can assume forfeiture.” Id. at 1001–02. Here, the

government has not offered any strategic justification as to

why Oliver would intentionally abandon his right to chal

‐ lenge procedural errors at his sentencing. Nor can this Court

“conceive of any strategic reason” for this decision. United

States v. Jaimes

‐ Jaimes

, 406 F.3d 845, 847–49 (7th Cir. 2005); see

also United States v. Jenkins

, 772 F.3d 1092, 1096 (7th Cir. 2014)

(holding that waiver did not occur because we could “con

‐

ceive of no reason why [the defendant] would have intention

‐ ally relinquished an objection certain to result in a lower crim

‐

inal history score and sentencing range, nor ha[d] the govern

‐

ment offered one”). Moreover, Oliver “never actively dis

‐

claimed the positions he now raises.” Seals

, 813 F.3d at 1045.

Therefore, Oliver did not waive his right to challenge proce

‐

dural errors in his sentencing proceeding.

However, Oliver did forfeit these arguments by failing to

object at the time of sentencing. As a result, the Court reviews

for plain error. See United States v. Chatman

, 805 F.3d 840, 843

(7th Cir. 2015). We now turn to the merits of Oliver’s three

claims of procedural error.8 No. 16

‐ 3611

1. Unwarranted Sentencing Disparities

Oliver first argues that the district court procedurally

erred by not considering the disparity between his sentence

and the sentence of Alan Watson, who operated the CFF

Ponzi scheme into which Oliver contributed some of the Elec

‐

tus investors’ funds. At Oliver’s sentencing hearing, the gov

‐

ernment informed the district court that Watson was similarly

convicted of wire fraud for making false promises to investors

and sentenced to twelve years in prison. Oliver points out that

while Watson caused approximately thirty

‐ seven times more

in dollar losses to investors, Oliver’s sentence is just three

times shorter. He argues that the district judge erred by failing

to consider this purportedly unwarranted sentencing dispar

‐ ity. 3

When imposing a sentence, district judges must consider

“the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty

of similar conduct.” 18 U.S.C. § 3553(a)(6). However, “the Sen

‐ tencing Guidelines are themselves an anti

‐ disparity formula”

because the Sentencing Commission considers the need to

avoid unwarranted disparities when setting the Guidelines

ranges. United States v. Blagojevich

, 854 F.3d 918, 921 (7th Cir.

2017). Therefore, if “the District Judge correctly calculated

and carefully reviewed the Guidelines range, he necessarily

3 The government responds that the district court judge did, in fact,

consider Watson’s sentence by specifically asking the government for in

‐

formation regarding any criminal prosecutions in the related Ponzi

schemes and noting that “the court always likes to know what happened

in related matters.” The Court need not address this argument because

Oliver’s within

‐ Guidelines sentence necessarily accounted for unwar

‐

ranted sentencing disparities, as explained infra

.No. 16

‐ 3611 9

gave significant weight and consideration to the need to avoid

unwarranted disparities.” Id. (quoting Gall v. United States

, 552

U.S. 38, 54 (2007)). In other words, “[a] sentence within a

Guideline range ‘necessarily’ complies with § 3553(a)(6).”

United States v. Bartlett

, 567 F.3d 901, 908 (7th Cir. 2009).

That is precisely what occurred here. The district court

correctly calculated and sentenced Oliver within the Guide

‐

lines range. 4 Indeed, the district court’s fifty

‐ one month sen

‐

tence was at the very bottom of Oliver’s Guidelines calcula

‐

tion. “Thus, the district court judge did not need to say a word

about § 3553(a)(6)’s application

... to satisfy the procedural re

‐ quirement that he give that factor ‘meaningful considera

‐

tion.’” United States v. Reyes

‐ Medina

, 683 F.3d 837, 841 (7th Cir.

2012). Oliver’s argument accordingly fails.

2. Factual Determinations

Next, Oliver argues that the district court procedurally

erred by selecting a sentence that was based on clearly erro

‐

neous facts.

“[C]onvicted defendants have a due process right to be

sentenced on the basis of accurate and reliable information.”

United States v. Corona

‐ Gonzalez

, 628 F.3d 336, 343 (7th Cir.

2010) (quoting United States v. Kovic, 830 F.2d 680, 684 (7th Cir.

1987)). Thus, a sentencing court commits “a significant proce

‐

dural error” if it “‘select[s] a sentence based on clearly erro

‐

neous facts.’” Corona

‐ Gonzalez

, 628 F.3d at 340 (alteration in

original) (emphasis omitted) (quoting Gall

, 552 U.S. at 51). To

4 Oliver argues that the district court should not have applied a two

‐

level leadership enhancement, but that argument fails for the reasons out

‐

lined infra in Part II.C.10 No. 16

‐ 3611

successfully challenge a sentence on this ground, the defend

‐

ant “must show both that information before the sentencing

court was inaccurate and that the sentencing court relied on

the inaccurate information in the sentencing.” Lechner v.

Frank

, 341 F.3d 635, 639 (7th Cir. 2003). If the defendant makes

such a showing, the defendant has the right to a new sentenc

‐ ing hearing. See United States v. Jones

, 454 F.3d 642, 652 (7th

Cir. 2006).

Oliver argues that his sentence was based on two pieces of

inaccurate information. First, Oliver challenges the judge’s

statement that Oliver’s crimes had “taken some years off [peo

‐ ple’s] lives.” Oliver contends that this statement was false be

‐

cause “no one ever presented evidence showing Mr. Oliver’s

actions shortened anyone’s life.”

Even if the judge’s statement was not literally true, Oliver

has not shown that the district court relied on it when fash

‐ ioning its sentence. There is no reason to think that the com

‐

ment was intended as a literal statement of fact to support the

sentence imposed. Rather, the phrase was nothing more than

a figure of speech to underscore the emotional impact of Oli

‐

ver’s conduct on his victims. Immediately before making the

challenged statement, the district judge expressed concern

that Oliver would not find “redemption” because he was

“never going to pay these people back, whether you’re work

‐ ing or I sentence you to the Bureau of Prisons and you come

out.” This suggests that the judge was simply trying to convey

that no prison sentence could undo the harm that Oliver

caused. Thus, Oliver has not shown that the district court re

‐

lied on the notion that Oliver actually reduced the lifespan of

his victims to determine his sentence.No. 16

‐ 3611 11

Second, Oliver argues that the district judge determined

that Oliver was solely responsible for the $983,654 in restitu

‐

tion based on his erroneous belief that “there’s been no other

person found to be responsible.” Oliver claims that this belief

was inaccurate because Watson shared responsibility for los

‐ ing the portion of the $983,654 that was invested in CFF. Oli

‐

ver further argues that there is a risk of double recovery for

victims because at least some of the $983,654 loss is part of the

$37 million in restitution that Watson was ordered to pay.

This argument goes too far. The government notes, and

Oliver does not dispute, that the restitution order in Watson’s

case did not list Oliver, Electus, or any of Oliver’s victims. The

parties acknowledge, however, that the restitution order in

Watson’s case included $466,050.60 to be paid to “Bruce H,”

and that Oliver’s investments in Watson’s Ponzi scheme were

made through Bruce Hongsermeier. Thus, there may be some

risk that part of Oliver’s $983,654 loss overlaps with the $37

million that Watson was ordered to pay. 5 But that risk is easily

addressed. The government suggests, with Oliver’s acquies

‐

cence, that we modify the restitution order to limit any vic

‐

tim’s recovery to the amount of her loss. We agree that this is

the appropriate step. See United States v. Trigg

, 119 F.3d 493,

501 (7th Cir. 1997) (noting that “victims may not recover

[through restitution] an amount in excess of their loss”).

In sum, Oliver was sentenced based on accurate infor

‐

mation, so the district court did not procedurally err in this

respect.

5 The district court could not have held Oliver’s co

‐ defendant, Smith,

jointly and severally liable for the restitution because Smith had not yet

been convicted.12 No. 16

‐ 3611

3. Supervised Release Guidelines Calculation

Next, Oliver argues that the district court procedurally

erred by imposing a three

‐ year term of supervised release

without first calculating the Guidelines range for supervision

and considering whether a three

‐ year term was appropriate

based on the statutory sentencing factors.

As a preliminary matter, the government argues that Oli

‐

ver waived his right to challenge the issue because he did not

object to the Guidelines calculations in the PSR. This argu

‐

ment misses the point. Oliver is not challenging the Guide

‐

lines calculation for his supervised release term on substan

‐

tive grounds; rather, he is arguing that the district court failed

to follow proper procedure by not repeating that calculation on

the record. A defendant does not waive the procedural re

‐ quirements of a sentencing hearing simply by failing to object

to a PSR. Indeed, when Oliver stated that he had no objections

to the PSR at the beginning of the sentencing hearing, he could

not have known whether the district court would comply

with procedural requirements during the rest of the proceed

‐ ing. Therefore, Oliver did not waive this claim, and we review

for plain error.

Turning to the merits, Oliver relies on this Court’s decision

in United States v. Downs

, 784 F.3d 1180 (7th Cir. 2015). In

Downs

, the district court sentenced the defendant to ten years

of supervised release even though the Guidelines recom

‐

mended a supervised release term of only three years. Id. at

1181. We held that the district court judge “was required, be

‐

fore deciding on the length of the defendant’s term of super

‐

vised release, to calculate the guidelines range and assess its

appropriateness as a guide to sentencing the defendant, inNo. 16

‐ 3611 13

light of the sentencing factors in 18 U.S.C. § 3553(a).” Id. Be

‐

cause there was no indication that the district court even con

‐

sidered the Guidelines range, we reversed and remanded for

resentencing. Id. at 1181–82.

Downs is distinguishable from this case. Unlike the district

court in Downs

, the district court here expressly referenced the

PSR, adopted the PSR’s Guideline calculations, imposed a

term of supervised release that was within the Guidelines

range, and explained its rationale for doing so in light of the

§ 3553(a) factors. Immediately after going through each of the

§ 3553(a) factors to reach Oliver’s prison sentence, the district

judge explained that he was imposing a three

‐ year supervised

release term “because of all the reasons [he] just stated” and

to ensure that restitution could be recovered during that time.

Oliver seems to argue that, even if a district court ex

‐ pressly adopts the Guideline calculations in the PSR, the fail

‐

ure to separately calculate the Guidelines range for super

‐

vised release constitutes reversible error. Neither Downs nor

other precedent from this Court supports such a rule. Alt

‐ hough prison and supervised release are two different forms

of punishment, they are both part of a single sentence. See id.

at 1182; United States v. Kappes

, 782 F.3d 828, 837 (7th Cir. 2015)

(“Any term of supervised release is considered part of the

overall sentence.”). Accordingly, we have held that “an ex

‐ plicit announcement of the guidelines recommendation” for

supervised release, although helpful for purposes of appellate

review, is not required. Anderson

, 604 F.3d at 1003–04 (holding

that the district court did not procedurally err even though

the judge “never recited [the] guideline range for supervised

release during the [sentencing] hearing”). Rather, the critical14 No. 16

‐ 3611

inquiry is whether the district court was aware of and under

‐

stood the Guidelines recommendation for supervised release.

See id. Where, as here, the district court “impose[s] a within

‐ guidelines term of supervised release” and “express[ly] men

‐

tions

... the PSR in the earlier part of the hearing,” this Court

can rest assured that the district court was aware of the Guide

‐

lines range. Id. at 1004.

For the same reasons, the district court was not required

to engage in “a separate comprehensive analysis” of the

§ 3553(a) factors as they applied to Oliver’s term of supervised

release after extensively discussing those same factors with

respect to Oliver’s prison sentence. See id. at 1003 (“We have

never required such repetition from the district court.”); see

also United States v. Bloch

, 825 F.3d 862, 869 (7th Cir. 2016), reh’g

denied (July 13, 2016) (“[T]he district court was not required to

provide two separate explanations, one for the term of impris

‐

onment and one for the term of supervised release.”). Instead,

“a district court need only provide one overarching explana

‐

tion and justification—tethered, of course, to the § 3553(a) fac

‐

tors—for why it thinks a criminal sentence comprised of both

terms of imprisonment and supervised release is appropri

‐

ate.” Bloch

, 825 F.3d at 870. The district court did that here.

Therefore, the district court did not err in imposing a

three

‐ year term of supervised release.

C. Leadership Enhancement

Finally, Oliver argues that the district court plainly erred

by imposing a two

‐ level enhancement based on Oliver’s lead

‐ ership role in the criminal activity.No. 16

‐ 3611 15

The government responds that Oliver waived his right to

appeal the application of the two

‐ level leadership enhance

‐

ment because he stated, both in his sentencing memorandum

and at the sentencing hearing, that he had no objections to the

PSR Guidelines calculations.

Under our precedent, “this case is a close one.” See Ander

‐

son

, 604 F.3d at 1002. This Court has previously held that a

defendant waived his right to challenge a Guidelines calcula

‐

tion where defense counsel “had access to the PSR, knew of

his right to object, considered objecting to portions of the PSR

other than the one he now challenges, and stated on the rec

‐

ord that he did not have further objections when asked by the

district court.” United States v. Garcia

, 580 F.3d 528, 542 (7th

Cir. 2009); see also

, e.g.

, United States v. Ranjel

, No. 15

‐ 3778, 2017

WL 4324980, at *4–*5 (7th Cir. Sept. 29, 2017) (holding that the

defendant waived his right to appeal the term of supervised

release because he failed to object to the PSR despite “multiple

opportunities” to do so).

However, under the same circumstances we have deter

‐

mined that a defendant did not waive, but rather merely for

‐

feited his challenge. See

, e.g.

, Jaimes

‐ Jaimes

, 406 F.3d at 847–49

(holding that the defendant did not waive his right to appeal

an eight

‐ level enhancement even though defense counsel

failed to object to the Guidelines calculation in the PSR); Jen

‐

kins

, 772 F.3d at 1096 (holding that the defendant did not

waive his right to appeal the inclusion of a conviction in his

criminal history calculation even though he failed to object to

that portion of the PSR).

Ultimately, we need not answer this question to resolve

this case. Even if we assume that Oliver only forfeited (rather16 No. 16

‐ 3611

than waived) his challenge to the leadership enhancement,

the district court did not commit plain error by applying it.

Under § 3B1.1(c) of the Sentencing Guidelines, the defend

‐

ant’s offense level must be increased by two “[i]f the defend

‐

ant was an organizer, leader, manager, or supervisor in any

criminal activity.” U.S.S.G. § 3B1.1(c). “The Guidelines do not

define ‘organizer,’ ‘leader,’ ‘manager,’ or ‘supervisor,’” but

they do list factors a district court should consider. See United

States v. Weaver

, 716 F.3d 439, 442 (7th Cir. 2013). Those factors

are: “the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruit

‐

ment 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 ac

‐ tivity, and the degree of control and authority exercised over

others.” U.S.S.G. 3B1.1, cmt. n.4. In the past, this Court has

consulted those factors to determine whether the leadership

enhancement applies in a given case. See, e.g., Weaver

, 716 F.3d

at 442–43; United States v. Vaughn

, 722 F.3d 918, 935 (7th Cir.

2013). And we have broadly defined a supervisor or manager

as someone who “tells people what to do and determines

whether they’ve done it.” United States v. Figueroa

, 682 F.3d

694, 697 (7th Cir. 2012).

Here, the district court did not plainly err in determining

that the leadership enhancement applied. First, Oliver created

the fraudulent investment scheme. It is undisputed that Oli

‐

ver was the sole managing member of Electus. Moreover, as

explained in the PSR, all funds were channeled through Oli

‐

ver, who decided how they would be “invested.”

Second, the PSR concluded that “Oliver recruited Smith”

to join the operation and solicit investors. See United States v.No. 16

‐ 3611 17

Henry

, 813 F.3d 681, 683 (7th Cir. 2016) (“Recruitment [is] a

factor supporting an inference of management.”). Oliver ar

‐

gues that he did not recruit Smith because Smith learned

about Electus from another individual, Bruce Hongsermeier.

However, learning about an organization and being asked to

join in the operation of an organization are distinct. It makes

sense that Smith learned about Electus through a third party,

but was later recruited to join the operation by Oliver.

Finally, Oliver exercised control over Smith by directing

him to make false representations to investors. See Figueroa

,

682 F.3d at 697 (defining a “supervisor” or “manager” as

someone who “tells people what to do”). Oliver contends that

Smith solicited investors on his own. However, both the PSR

and plea agreement state that Oliver “directed” Smith to do

so. Additionally, Smith sent investors’ payment checks—

made out to Electus—to Oliver. And when an investor mis

‐ takenly made out a check to Smith, he wired the funds to Ol

‐

iver. This suggests that Smith fell below Oliver in the fraud’s

hierarchical scheme. See Weaver

, 716 F.3d at 444 (“[S]ome hier

‐ archy among those involved in the criminal activity must ex

‐

ist to qualify a defendant for an enhancement under §

3B1.1.”). Moreover, Oliver and Smith spoke weekly, which in

‐

dicates “ongoing supervision.” Id. Lastly, Oliver’s control is

demonstrated by the fact that Smith received a referral fee. 6

6 Oliver argues that Smith did not receive a commission. The PSR is

somewhat inconsistent on this point. According to the PSR, during his in

‐

itial meeting with investigators, Smith said that he never received a com

‐

mission. However, Smith had a second meeting with the investigators just

two days later at which he said that he had received a referral fee. Moreo

‐

ver, the plea agreement states that some of the investors’ funds were used

to pay “undisclosed commissions to

... Smith.”18 No. 16

‐ 3611

See id. (“Th[e] exercise of control and authority will usually

allow the defendant to impose some

... reward

... for the un

‐ derling’s execution of the directed task.”).

Therefore, the district court did not plainly err in deter

‐ mining that the leadership enhancement applied.

III. Conclusion

The district court’s restitution order shall be modified to

clearly forbid any recovery in excess of a victim’s loss. In all

other respects, we A FFIRM the judgment of the district court.