# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 7, 2012

Decided August 20, 2012

Before

RICHARD A. POSNER

, Circuit Judge

JOHN DANIEL TINDER

, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12

‐ 1691

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ANDREW G. MAHAFFY, SR.,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 11

‐ CR

‐ 50

‐ BBC

‐ 01

Barbara B. Crabb,

Judge.

O R D E R

Andrew Mahaffy pled guilty to using the Postal Service to defraud his employer and

received a sentence of 51 months in prison. He appeals the sentence, arguing that the district

court clearly erred by identifying him as an “organizer, leader, manager, or supervisor” of a

criminal activity and applying a leadership enhancement when calculating his guidelines

range. See U.S.S.G. § 3B1.1(c). Because the district court’s conclusion was not clearly

erroneous, we affirm. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 1691 Page 2

Mahaffy managed project implementation for TDS Telecommunications Corporation,

a cable, phone, and internet provider. One of his responsibilities was to hire and manage the

contractors who removed and replaced the numerous telephone poles owned by TDS. In 1998

he contacted a contractor named Timothy Furness and pitched a scheme to defraud TDS:

Furness’s company, FF Tronix, would get telephone

‐ pole

‐ replacement contracts from TDS and

subcontract the work to A & J Salvage, a company owned by Mahaffy. Had TDS known this,

it would have regarded the arrangement as self

‐ dealing. But neither A & J Salvage nor FF

Tronix actually replaced any telephone poles; the record suggests that Mahaffy used his

position at TDS to generate duplicative work orders, first paying FF Tronix to replace poles,

then hiring (with TDS funds) a legitimate contractor to do the actual replacement—presumably

so TDS would not be tipped off to the fraud by unrepaired telephone poles. Using billing

information provided by Mahaffy, Furness would mail invoices for completed work to TDS,

where Mahaffy would approve them. TDS would pay Furness, who would transfer a portion

of that money to Mahaffy, as directed by Mahaffy. Furness estimates that he kept between 20%

to 50% of the payments from TDS, although Mahaffy insists that the split was even. The

government has characterized the profits as being “split somewhat equally” over the course of

the fraud.

Between 1998 and 2010, when Mahaffy retired, FF Tronix submitted more than

300 fraudulent invoices to TDS and received more than $2.5 million in payments. Mahaffy’s

replacement at TDS became suspicious of the payments to FF Tronix, and TDS soon conducted

an audit and uncovered the duplicative work orders. The company hired investigators who

interviewed Mahaffy about the payments to FF Tronix; Mahaffy told them, falsely, that he had

no idea that FF Tronix employed a subcontractor. Shortly after the interview, he called Furness

and left a series of voicemail messages telling Furness to call him back on a phone that TDS

could not trace so that they could get their stories straight. He told Furness to lie to the

investigators and even tried to educate him on how to remove a telephone pole. (Furness had

no idea; he’d never removed one before.) Furness, however, confessed to the investigators that

he had helped conceal Mahaffy’s self

‐ dealing and did not believe that Mahaffy ever completed

the work described in the invoices.

Soon thereafter, Mahaffy was charged with thirty counts of mail fraud and agreed to

plead guilty to one count. A probation officer recommended that he receive a two

‐ point

offense

‐ level enhancement under the Sentencing Guidelines for his role as an “organizer,

leader, manager, or supervisor” of the fraudulent scheme. See U.S.S.G. § 3B1.1(c). Mahaffy

objected to the enhancement, arguing that he and Furness had been equal participants in the

fraud and that neither had supervised or controlled the other. But the district judge found that

the enhancement should apply, explaining in the hearing:No. 12

‐ 1691 Page 3

I believe that the evidence shows that it was Mr. Mahaffy who devised this scheme and

recruited Mr. Furness and that it was Mr. Mahaffy who had to tell Mr. Furness how to

fill out invoices and fraudulently bill TDS for services that were never completed. And

then when the investigation got under way, Mr. Mahaffy lied to investigators and then

told Mr. Furness what he should tell the investigators, as well as what to say about the

process of removing the telephone poles. And he did direct Mr. Furness about the

distribution of profits. So I ʹ m going to give him the two

‐ level enhancement under

3B1.1(c).

The judge calculated a guideline range of 51 to 63 months in prison based on an offense level

of 24 and a criminal

‐ history score of I, and sentenced Mahaffy to the low end of that range.

The sole issue on appeal is whether the judge clearly erred by applying the two

‐ point

enhancement under section 3B1.1. Mahaffy insists that he and Furness were simply “equal

partners,” and he emphasizes their equal distribution of profits as evidence that both bore equal

responsibility even though they played different roles.

As with many Sentencing Guideline adjustments to offense levels, both up and down,

the leadership enhancement asks the sentencing judge to put a specific number on a sometimes

gray and ambiguous, and even uncertain, reality. We therefore review the application of the

leadership enhancement only for clear error. United States v. Robertson

, 662 F.3d 871, 876 (7th

Cir. 2011); United States v. Carrera

, 259 F.3d 818, 826 (7th Cir. 2001). “The central concern of

§ 3B1.1 is the defendant’s relative responsibility for the commission of the offense.” United

States v. Mendoza

, 576 F.3d 711, 717 (7th Cir. 2009) (internal quotation omitted); see also United

States v. Vasquez

, 673 F.3d 680, 685 (7th Cir. 2012); United States v. Cruz

, 120 F.3d 1, 3 (1st Cir.

1997) (en banc). A defendant who had no greater role than any other participant cannot receive

a leadership enhancement, but if the defendant played an aggravating role, the enhancement

is proper. United States v. Mustread

, 42 F.3d 1097, 1103 (7th Cir. 1994). Although Mahaffy

suggests that we also look to the seven factors listed in Application Note 4 of U.S.S.G. § 3B1.1,

we recently held that this list was not meant to be applied to two

‐ point leadership

enhancements under § 3B1.1(c) since it is to be used to distinguish between a leadership and

organization role (worth up to four levels) from one of “mere management or supervision.”

United States v. Figueroa

, 682 F.3d 694, 696 (7th Cir. 2012).

Although the facts of this case do not compel application of the two

‐ point leadership

enhancement, it certainly was not clear error for the court to apply the enhancement. The record

shows that Mahaffy was the “heart, soul and main artery of the fraud.” See United States v.

Peterson

‐ Knox

, 471 F.3d 816, 825 (7th Cir. 2006). He devised the scheme and recruited its only

other participant. He controlled the flow of billing information to Furness, so he also controlled

when and to what extent the frauds would occur. The record documents several instances ofNo. 12

‐ 1691 Page 4

Mahaffy directing, instructing, or advising Furness, but no instances of Furness doing the same

to Mahaffy. The approximately equal distribution of profits is one fact that tends to suggest

equal responsibility and might have persuaded the district court not to impose the

enhancement. See Mustread

, 42 F.3d at 1105. That factor, however, does not necessarily

preclude application of the leadership enhancement, see United States v. Parker

, 25 F.3d 442,

446–47 (7th Cir. 1994) (upholding four

‐ point leadership enhancement for defendant who

received smaller shares than co

‐ defendants), and the district court here acted reasonably in

finding that it was outweighed by the other evidence of Mahaffy’s greater responsibility.

Accordingly, the district court’s sentence of Mahaffy is AFFIRMED.