In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3717

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OLYMPIA BLUE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 04 CR 180-5—James F. Holderman, Chief Judge.

____________

ARGUED JUNE 2, 2006—DECIDED JULY 14, 2006

____________

Before POSNER, EASTERBROOK, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Following her plea of guilty to

charges of wire and bank fraud, the district court ordered

Olympia Blue imprisoned for a term of 46 months, a

sentence at the low end of the range called for by the

United States Sentencing Guidelines. Blue appeals, contending that her sentence is unreasonable in view of the

government’s request that she be sentenced below the

Guidelines range. We affirm.

I.

Blue was one of several individuals who participated in a

multifaceted scheme to obtain cash and credit through
2 No. 05-3717

fraud. Blue and her fellow schemers were able to finance

the purchase of a number of automobiles, for example, by

using social security numbers and other identifying information misappropriated from unwitting victims with

positive credit histories. Blue obtained some of that information from a credit database maintained by Equifax

corporation. Blue was able to access that database using

a toll-free telephone number, access code, and personal

identification number (PIN) that co-defendant Tanya

Asberry had received from her employer. In addition, Blue

defrauded banks by depositing a series of worthless checks

(drawn on a closed account) into her bank account, temporarily inflating the account balance and enabling her to

make debit charges and withdrawals before the fraud was

discovered. Blue also created counterfeit cashier’s checks

that two of her co-defendants used to obtain goods and

services.

Blue eventually pleaded guilty to one count of mail

fraud involving the fraudulently-financed purchase of a

Dodge Ram pickup truck and two counts of bank fraud

involving the worthless and counterfeit checks. Pursuant to

a letter agreement with the government, Blue agreed not

only to plead guilty to these charges but also to provide complete and truthful cooperation with the government

in its investigation of the offense. Provided that she complied with this obligation, the government agreed to

recommend a prison term equal to 80 percent of the low end

of the sentencing range called for by the Guidelines.

Asberry was the only one of Blue’s co-defendants who

proceeded to trial, and Blue testified against her. Blue

explained how she was able to access the Equifax credit

database using the telephone number, PIN, and other

information Asberry’s employer previously had provided

to Asberry. Although Blue denied that she had obtained

this information from Asberry, Blue did testify that she had

a telephone conversation with Asberry in July 2002 during
No. 05-3717 3

which she not only disclosed to Asberry that she had the

information but read the various numbers to Asberry and

asked her to confirm their accuracy, which Asberry did.

Blue’s testimony suggested that Asberry likely would have

noticed the succession of new vehicles Blue purchased in

the ensuing months, as she and Asberry saw each other on

an almost daily basis. And Asberry would have had cause

to wonder where Blue was getting the money to purchase

these vehicles, given that Blue had no job or other source of

legitimate income. Blue was arrested on state charges in

January 2003, and when Equifax was notified of her fraud,

the access numbers she was using were deactivated. Blue’s

criminal activity did not cease, however: Blue continued to

purchase vehicles through fraud using her own name (or a

variant thereof) along with social security numbers that she

chose at random. According to Blue, Asberry helped her in

this endeavor. Asberry recommended certain dealerships

that she knew made it easy to buy cars, for example. More

concretely, on three occasions Asberry accompanied Blue to

various dealerships where Blue purchased vehicles through

fraud and in one instance Asberry used her own credit card

to help Blue make a down payment on one of the fraudulently purchased vehicles.

Asberry herself had given a statement in the course of the

government’s investigation, and that statement was

admitted at trial. In that statement, Asberry acknowledged

that she had explained to Blue in the spring of 2001, when

Blue and Asberry were living together, how the toll-free

number was used to access the Equifax database. Asberry

confessed that when Blue and her co-schemers began to

drive “nice cars” in the spring and summer of 2002, she

realized that “they were probably up to no good with the

800 number and using it to purchase the cars.” R. 213-2 at

225, 333. She knew “for sure” by December 2002 that Blue

was using the toll-free number to make fraudulent automobile purchases. Id. at 225. Finally, Asberry admitted that
4 No. 05-3717

1 The court calculated Blue’s sentencing range using the 2002

version of the Sentencing Guidelines. All of our Guidelines

citations are therefore to that version.

she had accompanied Blue to dealerships on three occasions

to make fraudulent vehicle purchases and that she helped

Blue obtain one of those cars by charging a portion of the

down payment to her own credit card. Id.

At the conclusion of Asberry’s trial, the jury convicted her

of one count of wire fraud. It was unable to reach a verdict

as to two additional counts of wire fraud, and the court

declared a mistrial as to those two counts. Asberry is still

awaiting sentencing.

Satisfied with Blue’s cooperation, the government honored

its letter agreement with her and filed a motion (styled as

one for a downward departure from the Guidelines range)

asking the court to impose a sentence equal to 80 percent of

the low end of the Guidelines range. The government

pointed out that Blue’s testimony had established that

Asberry was aware that Blue possessed the toll-free number

for Equifax along with the other information necessary to

access its database and that Asberry had confirmed that

information for Blue despite knowing that it was illegal for

Blue to access the database. Blue’s testimony also revealed

that Asberry was involved with Blue’s continuing efforts to

fraudulently obtain cars after the Equifax access numbers

were deactivated. Blue’s testimony was to some extent

corroborated by other evidence, and the government saw

this is an indicator that she had testified truthfully. R. 242.

After taking into account such factors as the amount of

the loss resulting from Blue’s criminal activity

($419,186.87), see U.S.S.G. § 2B1.1(b)(1) (2002),1

 and her

acceptance of responsibility, see U.S.S.G. § 3E1.1, the

district court arrived at an adjusted Guidelines offense level

of 21. Believing that Blue had played a leadership role in
No. 05-3717 5

the offense, the probation officer had proposed an additional

increase of four points in the offense level. See U.S.S.G.

§ 3B1.1(a). Although the district court was inclined to agree

with the probation officer, both the government and Blue

objected to that enhancement, and in light of their opposition the court declined to adopt the probation officer’s

recommendation. R. 311 at 4-6. Coupled with Blue’s

criminal history category of III, the offense level of 21

produced a sentencing range of 46 to 57 months’ imprisonment.

The court opted to impose the minimum Guidelines

sentence of 46 months. The court rejected the government’s

request for an even lower sentence equal to 80 percent of

that minimum (roughly 36 months) to reward Blue for her

cooperation with the government. R. 311 at 18. The court

reasoned:

I believe Ms. Blue was a very active participant in this

crime, these series of crimes. I believe under the

circumstances that the government’s motion for downward departure should not be granted. I believe a

sentence at the low end of the Guideline range is

an appropriate sentence. To go below that I think would

denigrate the seriousness of Ms. Blue’s offenses, and so

I decline to depart from the Guideline range.

Id. Pursuant to Guidelines section 5G1.3(b), the court

did grant Blue credit against her federal sentence 503

days of time she had spent in custody on a related state

offense. Id.

Approximately two weeks after Blue’s sentencing, the

court entered an order making certain findings pursuant to

the Guidelines in anticipation of Asberry’s eventual sentencing. Included in those findings were certain observations about Blue. The court described Blue as “clearly the

most culpable of all the alleged co-schemers.” R. 266 at 3.

The court also found that Blue was “less than totally
6 No. 05-3717

2 Based on Asberry’s own pre-trial statement, the court found

that Asberry was not actually aware that Blue and the other codefendants were misusing the Equifax access numbers until

December 2002. R. 266 at 3. For that reason, the court concluded

that the frauds Blue and others had committed using the

Equifax information were not foreseeable to Asberry and that she

could not be held to account for them for sentencing purposes. Id.

credible” in her testimony against Asberry. Id. In particular, the court discredited Blue’s testimony about

the telephone conversation she had with Asberry in July

of 2002 in which Blue purportedly disclosed to Asberry that

she had the Equifax 800 number and access information

and asked Asberry to confirm the accuracy of that information. Id.; see R. 213-2 at 253-54.2

II.

Blue contends that her sentence is unreasonably high

in view of her cooperation with the government and the

government’s own request that she be sentenced below the

Guidelines range based on that cooperation. Prior to the

Supreme Court’s decision in United States v. Booker, 543

U.S. 220, 125 S. Ct.738 (2005), a defendant’s substantial

assistance to the government was recognized by way of

a downward departure from the Guidelines range. See

U.S.S.G. § 5K1.1. After Booker, which rendered the Guidelines advisory, departures have become obsolete. See United

States v. Laufle, 433 F.3d 981, 986-87 (7th Cir. 2006)

(collecting cases). If the court has a sound basis for concluding that a sentence above or below the Guidelines range is

appropriate, it has the discretion to select such a sentence

without the need to consider whether a departure would

have been warranted in the pre-Booker era when the

Guidelines were binding. In every case, it is a district
No. 05-3717 7

court’s obligation to arrive at a reasonable sentence after

consulting the Guidelines and taking into account the broad

sentencing factors that Congress set forth in 18 U.S.C.

§ 3553(a). See Booker, 543 U.S. at 259-60, 261, 125 S. Ct. at

764-65, 766; Laufle, 433 F.3d at 987. Provided that the

district court properly calculated the Guidelines range, our

task on appeal is simply to determine whether the sentence

imposed is a reasonable one. Booker, 543 U.S. at 261, 125 S.

Ct. at 765; Laufle, 433 F.3d at 984-85. A sentence that falls

within the properly-calculated Guidelines range, as Blue’s

sentence does, is presumed reasonable. United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Blue bears the

burden of rebutting that presumption by showing that the

sentence is inconsistent with the section 3553(a) sentencing

factors. Id.

Blue’s assertion that her sentence is unreasonable

is premised on her view that the district court’s rationale

for rejecting the government’s request for a lower sentence

was both incomplete and faulty. Blue points out that the

U.S. Sentencing Commission provided for substantial

assistance departures at the specific direction of Congress.

See 28 U.S.C. § 994(n). Booker may have rendered departures obsolete, but the rationale for rewarding defendants

who have been helpful to the government with belowGuidelines sentences remains: it arms the government with

“an inducement that can be used to solve old crimes and

deter new ones.” United States v. Zingsheim, 384 F.3d 867,

870 (7th Cir. 2004). Blue concedes that a court is not obliged

to accede to the government’s wishes—after Booker as

before, a prosecutorial request to recognize the defendant’s

assistance with a below-Guidelines sentence is one addressed to the district court’s discretion. See, e.g., United

States v. Hayes, 939 F.2d 509, 512 (7th Cir. 1991) (preBooker) (“once the government has moved for a downward

departure, the decision whether to depart is within the

sound discretion of the district court”); United States v.
8 No. 05-3717

Walker, 447 F.3d 999, 1007 (7th Cir. 2006) (post-Booker)

(“[a] sentencing court applying Booker now consults the

Guidelines as guidance for what is a wholly discretionary

decision . . .”) (emphasis in original). Indeed, prior to

Booker, a district court’s exercise of discretion as to a

substantial-assistance departure was unreviewable. E.g.,

Zingsheim, 384 F.3d at 870. But Blue maintains that

Booker nonetheless obliges the court to consider all relevant

sentencing factors in arriving at a reasonable sentence, and

the assistance a defendant has provided to the government

certainly is one of those factors. Cf. United States v. Wills,

35 F.3d 1192, 1196 (7th Cir. 1994) (pre-Booker) (district

court “ought to hear the government and give thoughtful

consideration to what the representative of the United

States has to say” in assessing government’s request for

substantial-assistance departure), overruled on other

grounds by Melendez v. United States, 518 U.S. 120, 116 S.

Ct. 2057 (1996).

Specifically, Blue believes that appropriate consideration of a defendant’s cooperation requires the district court

to make findings as to the extent and importance of the help

that the defendant has given to the government and, if the

court is not inclined to impose a sentence below the Guidelines range in accordance with the government’s request, to

articulate rational reasons for remaining within the

Guidelines range. Blue believes that the district court

complied with neither obligation: the court made no finding

as to whether or not she did provide substantial assistance

to the government, and the court discounted her cooperation

as a factor that might warrant a below-Guidelines sentence

for reasons that, to Blue’s mind, are irrational. As noted,

the court remarked that Blue was an active participant in

the offense and that a sentence below the bottom of the

Guidelines range would denigrate the seriousness of that

offense. R. 311 at 18. Blue retorts that being an active

participant in crime is what enables a defendant to provide
No. 05-3717 9

significant help to the government. She adds that because

she had genuinely accepted responsibility for her conduct

(as evidenced by the credit she received in that regard) and

because the government proposed a relatively modest

deviation from the Guidelines range (80 percent of the

minimum), sentencing her to a lower term would not have

not have been inconsistent with the gravity of the offense.

The government agrees with Blue that the court should

have granted its request for a reduced sentence but nonetheless defends the district court’s sentence as reasonable.

“Defendant’s testimony substantially assisted the government in its prosecution of Asberry, and the government

believes that the district court should have given some

weight to that assistance. Nevertheless, when considered

along with other sentencing factors, the assistance was not

so significant that it compelled the district court to impose

a sentence below the advisory sentencing guidelines range.”

Gov. Br. at 13.

Our task, we should again emphasize, is not to review

in isolation the district court’s rejection of the government’s

request for a below-Guidelines sentence, but rather to

evaluate the overall reasonableness of the sentence imposed. Looking at the court’s refusal to impose a sentence

outside the advisory Guidelines range is an aspect of that

assessment, United States v. Vaughn, 433 F.3d 917, 924

(7th Cir. 2006), but it is just one aspect. The district court

must consider and balance the wide range of factors

reflected in section 3553(a). United States v. Dean, 414 F.3d

725, 728 (7th Cir. 2005). We owe deference to the court’s

resolution of those factors, particularly when the court has

imposed a sentence within the range recommended by the

Guidelines. United States v. Williams, 425 F.3d 478, 481

(7th Cir. 2005), cert. denied, 126 S. Ct. 1182 (2006). We may

intervene if the district court has altogether ignored a

relevant consideration, e.g., United States v. Cunningham,

429 F.3d 673, 677-78 (7th Cir. 2006), or has unreasonably
10 No. 05-3717

discounted a factor so weighty as to compel a sentence

outside of the Guidelines range, see Dean, 414 F.3d at 729

(“The sentencing judge cannot, after considering the factors

listed in [section 3553(a)], import his own philosophy of

sentencing if it is inconsistent with them.”); Williams, 425

F.3d at 481 (“We have left room for the possibility that

there will be some cases in which a sentence within the

Guidelines range, measured against the factors identified

in section 3553(a), stands out as unreasonable.”) (citing

Mykytiuk, 415 F.3d at 608). But it is not our province to

second guess the district court’s sentencing rationale. Id.

“Rather, what we must decide is whether the district judge

imposed the sentence he or she did for reasons that are

logical and consistent with the factors set forth in section

3553(a).” Id.

Having reviewed the record and the district court’s

reasons for sentencing Blue as it did, we are satisfied that

her sentence is a reasonable one. The district court, as the

government recognizes, has an obligation to weigh the

defendant’s cooperation (and the government’s request for a

reduced sentence) against the other statutory sentencing

factors. See generally Vaughn, 433 F.3d at 923-24. Among

those factors are the nature and circumstances of the

defendant’s crime, § 3553(a)(1), and “the need for the

sentence imposed . . . to reflect the seriousness of the

offense, promote respect for the law, and to provide just

punishment for the offense,” § 3553(a)(2)(A). That is what

the court did here.

We do not fault the court for omitting to make findings as

to the degree and importance of Blue’s assistance to the

government. See Dean, 414 F.3d at 729-30 (district court’s

obligation to consider relevant sentencing factors is not

an obligation to make findings as to each factor). As we read

the sentencing transcript, the district court had no quarrel

with the representations that the government made in its

written request for a below-Guidelines sentence concerning
No. 05-3717 11

3 Although the court later found that Blue had been “less than

totally credible” when she testified at Asberry’s trial, R. 266 at 3,

a finding that conflicts to some extent with the government’s

representation that Blue had testified truthfully, the court in

sentencing Blue did not reject the notion that she had been of

significant aid to the government.

Blue’s cooperation; the court accepted that Blue had been of

material help to the government in prosecuting Asberry. Cf.

Laufle, 433 F.3d at 983-84 (court not convinced defendant

had provided substantial assistance).3

 Indeed, it appears

that the court chose a sentence at the low end of the

Guidelines range in part because of that aid. R. 311 at 18.

The court rejected a sentence below the Guidelines minimum not because it discredited the government’s assessment of Blue’s cooperation but rather because it believed

that Blue’s criminal conduct was too serious to warrant a

lower sentence. Id.

And Blue’s offense conduct was serious: she helped to

commit not one criminal act but a series of them. A number

of those acts involved identity theft, which expanded the

roster of victims beyond the car dealers, finance companies,

and banks that she and her co-defendants were defrauding.

The testimony at sentencing by one of the persons whose

identifying information had been misappropriated provided

concrete illustration of the ways in which others were

harmed by Blue and her cohorts. R. 311 at 13-14. Blue, as

the district court observed, was not a minor but rather an

active participant in this series of offenses. Id. at 18.

Indeed, the court later described her as “clearly the most

culpable” of all those involved. R. 266 at 3. Blue rightly

points out that active participants often have the most to

offer the government in their ability to shed light upon the

crime and expose the involvement of others. But as we have

recognized before, knowledge that derives from participation in a crime is a double-edged sword: it enables the
12 No. 05-3717

insider to be of real help to the government, but it often

reflects a higher degree of responsibility for the crime.

United States v. Atkinson, 15 F.3d 715, 719 (7th Cir. 1994).

A sentencing judge cannot be faulted for taking into account

the latter as well as the former.

We cannot say that the balance the district court struck

between Blue’s cooperation with the government and her

level of culpability was unreasonable. The court did sentence Blue to the minimum term called for by the Guidelines, and as a result of the credit she was given for the

time served on a related state sentence, the time she will

serve on the federal sentence was shortened by more than

a year. At the same time, in the face of joint opposition from

the parties, the court refrained from enhancing Blue’s

offense level for having played a leadership role in the

offense, notwithstanding the belief of both the court and the

probation officer that the enhancement was appropriate. It

is entirely possible that we might have sustained the

enhancement had the court chosen to impose it; the fact

that the government and Blue shared the view that the

enhancement was unwarranted would not have bound us on

appeal any more than it bound the district court. See, e.g.,

United States v. Wilson, 169 F.3d 418, 427 & n.8 (7th Cir.

1999). Blue’s sentence, in sum, was shorter than it otherwise might have been. Given the extent and gravity of her

conduct, the court reasonably concluded that an even lesser

sentence was not appropriate. Put another way, Blue’s

cooperation, considered along with all of the other relevant

factors, did not compel a sentence below the advisory

Guidelines range.

III.

Blue has not rebutted the presumption of reasonableness that attaches to her Guidelines sentence. We therefore

AFFIRM the sentence.
No. 05-3717 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-14-06