In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1549

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRENISE BLAYLOCK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-CR-147—Charles N. Clevert, Jr., Judge.

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ARGUED MARCH 29, 2005—DECIDED JUNE 28, 2005

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Before CUDAHY, WOOD, and SYKES, Circuit Judges.

CUDAHY, Circuit Judge. Trenise Blaylock pleaded guilty

to armed bank robbery and related offenses. At sentencing

she stipulated to all upward adjustments under the guidelines save one: that she was an organizer or leader of a

criminal activity involving at least five participants. On

appeal she contends for the first time that she did not have

sufficient control over four other participants to warrant

that adjustment. Also for the first time, Blaylock invokes

United States v. Booker, 125 S. Ct. 738 (2005). Although we

find Blaylock’s arguments regarding the adjustment for her
2 No. 03-1549

leadership role to be meritless, we remand for further proceedings under the procedure articulated in United States

v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).

Blaylock planned the robbery of Milwaukee’s Guardian

Credit Union, her former employer, and personally recruited three accomplices to help her. Her first recruit was

her cousin, Lakesha Bruce. Blaylock then enlisted Omar

Nelums and Weylin Shurn and tasked them with getting

guns and stealing a getaway car. Blaylock was the one who

chose the date of the robbery, April 11, 2002, because she

knew that a shipment of $400,000 was due to arrive that

day. She also drew a map of the credit union and parking

lot and described details of the facility and its employees.

The plan was a failure. Blaylock, Bruce, Nelums, and

Shurn all went to the bank at closing time and waited outside in the stolen car. When two of the tellers made their

exit, Nelums and Shurn tried to grab them in the parking

lot. One teller ran with Shurn in pursuit, while Nelums

forced the other at gunpoint to the credit union’s side door.

Afraid for the teller’s life, the manager let Nelums enter;

when he got inside, Nelums shot the security cameras with

his gun. But the bank employees told him that they could

not open the drawers where he thought he would find the

$400,000, so he grabbed $5,300 from another drawer and

ran away. As he fled, a red dye pack in the loot exploded in

his face. Nelums jumped into the getaway car with Blaylock

and Bruce, and the three sped away. Meanwhile, Shurn had

caught the other teller but let her go and jumped in the

getaway car as it came by.

With Nelums covered in red dye and the others overcome

by fumes, the fearsome foursome needed a place to clean up

and regroup. As they neared the home of Jermaine Shurn,

Weylin’s brother, the four abandoned the getaway car and

walked to the house. Jermaine’s wife took them to the

basement to wash up, and Jermaine disposed of Nelums’
No. 03-1549 3

clothes and other signs of their presence. Weylin Shurn

called another brother, Terrecho Shurn, to drive them

home. Terrecho hid Nelums and Weylin Shurn in the back

of his car, while Blaylock and Bruce rode in the front seat

since they had stayed in the getaway car and would not be

recognized. According to the district court’s findings of fact,

Jermaine, Jermaine’s wife, and Terrecho all knew about the

robbery plot beforehand.

Ultimately, Blaylock pleaded guilty to armed bank

robbery, 18 U.S.C. § 2113(a), (d); conspiracy to commit the

robbery, id. §§ 371, 2113(a), (d); and using and carrying a

firearm during a crime of violence, id. § 924(c). At sentencing Blaylock objected to the four-level increase under

U.S.S.G. § 3B1.1(a) for organizing or leading a criminal

activity with five or more participants. The court denied her

objection. Nonetheless, it granted a downward departure for

substantial assistance in the prosecution of her

codefendants, see U.S.S.G. § 5K1.1, effectively lowering her

total offense level for the robbery and conspiracy counts

from 25 to 22. Using that offense level and Blaylock’s

Category I criminal history as a guide, the court sentenced

her to concurrent sentences of 41 months on those counts,

the low end of the departure “range” and well below the actual range of 57 to 71 months. The court imposed a consecutive sentence of 120 months on the § 924(c) conviction,

the mandatory minimum since the gun was fired. See 18

U.S.C. § 924(c)(1)(A)(iii). 

Section 3B1.1(a) provides for a four-level increase if the

defendant was “an organizer or leader of a criminal activity

that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). In determining the

defendant’s role, the sentencing court must assess all “relevant conduct” under U.S.S.G. § 1B1.3, not just the elements

of the offense charged. U.S.S.G. § 3B1.1(a), intro. cmt. In

the case of joint criminal activity, relevant conduct includes

“all reasonably foreseeable acts and omissions of others in
4 No. 03-1549

furtherance of the jointly undertaken criminal activity . . .

that occurred during the commission of the offense of

conviction . . . or in the course of attempting to avoid

detection or responsibility for that offense.” U.S.S.G.

§ 1B1.3(a)(1), (a)(1)(B). Whether the defendant is a leader

or organizer of a criminal activity involving five or more

people requires a finding of fact that we review for clear

error. United States v. Reneslacis, 349 F.3d 412, 416 (7th

Cir. 2003). That standard has not changed after Booker. See

United States v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005)

(explaining that the standard of review for denial of a

downward adjustment under U.S.S.G. § 3B1.2 is still clear

error after Booker); United States v. Turner, 400 F.3d 491,

500 (7th Cir. 2005) (reviewing a sentencing court’s factual

findings for clear error after Booker).

As she did in the district court, Blaylock insists that she

was one of only four participants, not five or more. According to Blaylock, the district court should not have counted

Terrecho Shurn as a participant even though he helped her

and Bruce, Nelums and Weylin escape. A “participant” is

someone “who is criminally responsible for the commission

of the offense, but need not have been convicted.” U.S.S.G.

§ 3B1.1, cmt. n.1. What matters is that he knowingly aided

some part of the criminal enterprise. United States v. Hall,

101 F.3d 1174, 1178 (7th Cir. 1996); United States v.

Michalek, 54 F.3d 325, 333-34 (7th Cir. 1995). Blayock reasons that Terrecho was not a participant since, in her view,

the robbery was over as soon as the foursome reached

Jermaine Shurn’s house, and whether she “accepted a ride

from Terrecho Shurn, walked home, or called a cab, was

immaterial.”

This contention ignores much of the record. Terrecho’s

effort to hide Weylin and Nelums made the ride part of the

getaway, not a favor for family and friends. As the district

court explained and as Blaylock admitted at sentencing,

Nelums was covered in red dye and the others overcome by
No. 03-1549 5

fumes when they arrived at the Shurns’ house. Without a

place to clean up and regroup, their flight certainly would

have been more obvious. And the ride they received from

Terrecho put them further from the stolen getaway car.

Indeed, the need to abandon the stolen car was foreseeable

and supports the inference that all along they planned a

separate leg to their getaway involving the Shurns.

Moreover, in adopting the factual statements in the presentence report, the district court also found that Jermaine

and his wife were participants, and nowhere in her opening

brief does Blaylock challenge that finding as clearly erroneous. Blaylock instead accuses the government of misrepresenting the record in counting Jermaine and his wife as

participants, but it is Blaylock herself who misreads the

record. The presentence report identifies Jermaine and his

wife as participants and since Blaylock waited until her

reply brief to contest that finding, she waived the argument.

See United States v. Harris, 394 F.3d 543, 559 (7th Cir.

2005) (arguments not raised in opening brief are waived);

United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir.

2004) (same). So whether the fifth participant was Terrecho

or another one of the Shurns, we have no doubt that there

were at least five participants in this criminal enterprise.

That takes us to Blaylock’s second point. She contends,

citing United States v. Guyton, 36 F.3d 655, 662 (7th Cir.

1994), that § 3B1.1(a) requires not only that she have been

a leader or organizer in a criminal enterprise with five or

more participants, but also that she have exerted “control”—whether direct or indirect—over at least four other

participants besides herself. Although Blaylock concedes

she exercised control over three participants, she insists

that there was no evidence that she ever exerted any control over a fourth participant. Blaylock explains that she

never even met Terrecho before getting into his car, and as

before she says nothing about Jermaine and his wife.

Blaylock’s objection at sentencing, however, was based only
6 No. 03-1549

on the number of participants, so this “control” argument

was not preserved for appeal and is reviewed for plain

error. See United States v. Kamoga, 177 F.3d 617, 620-22 &

n.5 (7th Cir. 1999) (arguments raised for first time on

appeal are reviewed for plain error).

In Guyton we vacated the sentence of a drug conspirator

responsible for the distribution of over five kilograms of

crack cocaine because the district court increased his offense level four levels when there was no evidence of control

over at least four other members of the conspiracy. Guyton,

36 F.3d at 661-62. Guyton had personally recruited two

other conspirators, which showed control— whether direct

or indirect—over those two co-conspirators, but there was

no evidence of control over two more. Id. at 662. The record

showed he fronted drugs to at least four members of the

conspiracy, but we reasoned that fronting drugs without

evidence of actual control was not enough. Id.

Guyton would thus appear to require a formalistic

showing of control over at least four participants, and that

is how we stated the rule in several other cases (sometimes

in dicta). E.g., United States v. Richards, 198 F.3d 1029,

1033-34 (7th Cir. 2000); United States v. Zaragoza, 123 F.3d

472, 483 (7th Cir. 1997); United States v. Magana, 118 F.3d

1173, 1203 (7th Cir. 1997); United States v. Barnes, 117

F.3d 328, 337 (7th Cir. 1997); United States v. Hall, 109

F.3d 1227, 1234-35 (7th Cir. 1997); United States v. Salinas,

62 F.3d 855, 862 (7th Cir. 1995); United States v. Carson, 9

F.3d 576, 584 (7th Cir. 1993); United States v. Schweihs,

971 F.2d 1302, 1318 (7th Cir. 1992); United States v.

McGuire, 957 F.2d 310, 316-17 & n.4 (7th Cir. 1992). These

cases reiterate a test that in McGuire, 957 F.2d at 317 n.4,

we imported from United States v. Reid, 911 F.2d 1456,

1464-65 & n.8 (10th Cir. 1990). We noted in McGuire:

The court in Reid stated . . . that a defendant receiving

a “leader or organizer” enhancement under § 3B1.1(a)
No. 03-1549 7

1 The 1993 amendment added what is now Application Note 2:

To qualify for an adjustment under this section, the defendant

must have been the organizer, leader, manager, or supervisor

of one or more other participants. An upward departure may

be warranted, however, in the case of a defendant who did not

organize, lead, manage, or supervise another participant, but

who nevertheless exercised management responsibility over

the property, assets, or activities of a criminal organization.

U.S.S.G. App. C, amend. 500 (effective Nov. 1, 1993).

must have some control, direct or indirect, over the five

participants. This makes sense: to lead an organization

you must control its members.

McGuire, 957 F.2d at 317 n.4. Our observation was dicta,

because McGuire was a case about § 3B1.1(b), but we soon

applied it to the four-level adjustment. Schweihs, 971 F.2d

at 1318. The Tenth Circuit, however, has since reconsidered

and rejected its requirement of control over four participants, reasoning that a 1993 amendment to Application

Note 2 clarifies that control over a single participant is all

that is required.1

 United States v. Cruz Camacho, 137 F.3d

1220, 1224 n.3 (10th Cir. 1998) (“In light of this substantive

change to the guidelines, we believe our language in Reid,

which was proper in regards to the guidelines in place at

that time, is no longer good law.”). Meanwhile, the Fifth

Circuit also considered and expressly rejected McGuire and

Reid, likewise reasoning that the 1993 amendment clarified

that control was necessary over only one person. United

States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994). Indeed, to

the extent that we still cling to the formalistic requirement,

we are virtually alone. Cf. United States v. Gaskin, 364 F.3d

438, 466-67 (2d Cir. 2004) (control over one or more participants is necessary for § 3B1.1(a) to apply); United States v.

Eis, 322 F.3d 1023, 1025 (8th Cir. 2003) (per curiam)

(same); United States v. Owusu, 199 F.3d 329, 345-47 (6th

Cir. 2000) (same); Cruz Camacho, 137 F.3d at 1224 n.3
8 No. 03-1549

(same); United States v. Harris, 39 F.3d 1262, 1270-71 (4th

Cir. 1994) (same); Okoli, 20 F.3d at 616 (same); United

States v. Barnes, 993 F.2d 680, 684-86 (9th Cir. 1993)

(same). And even our own cases demonstrate a move away

from the rigid approach. See United States v. Hardamon,

188 F.3d 843, 851-52 (7th Cir. 1999) (control over at least

four participants is not required); Kamoga, 177 F.3d at 620-

22 (same); see also United States v. Hanhardt, 361 F.3d 382,

393-94 (7th Cir. 2004) (explaining that a defendant must

have organized or directed another participant for

§ 3B1.1(a) to apply), vacated and remanded for further

proceedings sub nom. Altobello v. United States, 125 S. Ct.

994 (2005); United States v. Mijangos, 240 F.3d 601, 604-05

(7th Cir. 2001) (same). We thus question whether we should

have perpetuated our own adherence to Reid after the 1993

amendment to the guidelines made clear that “control” over

only one person is necessary. See Cruz Camacho, 137 F.3d

at 1224 n.3.

Regardless, we already rejected an argument indistinguishable from Blaylock’s in United States v. Kamoga—although Blaylock inexplicably failed to bring that case to our

attention and attempt to distinguish it. Robert Kamoga was

convicted of bank fraud and his offense level increased by

four levels because he was the leader of a scheme to cash

worthless checks and distribute the proceeds among his coconspirators. Kamoga, 177 F.3d at 618-20. Luring them

with the promise of “fast money,” Kamoga first recruited

two middlemen, Newton and Jones, and directed them to

enlist “someone else” to deposit counterfeit checks from

Kamoga. Id. at 619. Newton and Jones signed up Bledsoe,

and Bledsoe recruited Vinson and Strickland. Id. Then

Kamoga gave Newton two fraudulent checks, which Newton

passed to Bledsoe. Id. Bledsoe made the checks payable to

S & S Enterprises (owned by Vinson and Strickland). Id.

The checks found their way to Strickland, who opened a

new account for S & S, where he deposited them, withdraw-
No. 03-1549 9

ing the proceeds. Id. Strickland, however, was arrested, and

Kamoga’s plan unraveled. Id. Kamoga argued that the fourlevel adjustment was unwarranted because there was no

evidence that he controlled anyone but Newton and Jones,

or that he even knew or could reasonably have foreseen that

there were at least four other participants in the criminal

enterprise. Id. at 620-21. Rejecting his arguments, we held

that—Guyton notwithstanding—we do not mechanically

require the defendant to exercise “control” over four other

participants in order for the four-level adjustment to apply.

Kamoga, 177 F.3d at 620-22 & n.4; see also Hardamon, 188

F.3d at 851-52 (citing Kamoga). All that is required is that

the defendant provide leadership and organization for a

criminal enterprise comprised of five or more persons and

actually control at least one of the participants. Hanhardt,

361 F.3d at 393-94; Mijangos, 240 F.3d at 604-05. And the

defendant’s leadership role can be demonstrated by any of

seven factors. U.S.S.G. § 3B1.1, cmt. n.4 (“Factors the court

should consider include the exercise of decision making

authority, the nature of participation in the commission of

the offense, the recruitment 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 activity, and the degree of

control and authority exercised over others.”). These factors

in mind, the dispositive question is relative responsibility

for the crime—not “control” over each of the other participants as such. Kamoga, 177 F.3d at 621; see also

Hardamon, 188 F.3d at 851-52. Therefore, it is enough that

the other participants act “in furtherance” of the defendant’s plan; to hold otherwise would permit “masterminds”

to escape responsibility by delegating duties. Kamoga, 177

F.3d at 621-22. Here, Blaylock was just the type of mastermind we envisioned in Kamoga. She was the impetus

behind the robbery, had the inside knowledge, and devised

the plan. She also recruited three participants who in turn

recruited all of the remaining participants. And because
10 No. 03-1549

Terrecho was a part of the criminal enterprise that Blaylock

masterminded, it is irrelevant whether she had ever met

him before getting into his car. Thus, the record supports

the adjustment.

All that is left is Booker, 125 S. Ct. 738. Because Blaylock

raises her Booker argument for the first time on appeal, we

review it under the plain-error standard articulated in

Paladino, 401 F.3d at 481-84. As the government concedes,

a limited remand under Paladino is required here because

there is no way to be certain whether the sentencing judge

would have given a shorter sentence under the guidelines

had he known they were advisory. See id. (explaining that

remand is appropriate when we are in doubt about whether

the judge would have imposed a lighter sentence under an

advisory regime); United States v. Lee, 399 F.3d 864, 866

(7th Cir. 2005) (same); see also United States v. Woodard,

408 F.3d 396, 399 (7th Cir. 2005) (remanding under

Paladino where the district court erred by applying the

guidelines as if they were mandatory, although there was

no Sixth Amendment violation); United States v. Castillo,

406 F.3d 806, 823-24 (7th Cir. 2005) (same); United States

v. White, 406 F.3d 827, 834-37 (7th Cir. 2005) (same). Thus,

although the district court properly calculated Blaylock’s

sentence under the formerly mandatory regime, we order a

LIMITED REMAND, while retaining jurisdiction, so the

district court may consider whether it would impose a

different sentence under the now-advisory guidelines.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-28-05