United States of America v. Davey Hines

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 10, 2024
Decided August 7, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-1727
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVEY HINES,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:21-CR-00129-1
Edmond E. Chang,
Judge.
O R D E R
Davey Hines appeals his convictions based on his participation in a conspiracy to
steal credit cards mailed through the United States Postal Service (USPS) and use those
cards to purchase other goods. He raises only one argument on appeal: that the district
court erred by applying a four-level enhancement under the Sentencing Guidelines for
his role as a leader or organizer in the conspiracy. See U.S.S.G. § 3B1.1(a). But because
Hines acted as an organizer when he recruited and directed others, determined how
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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much others would be paid, and coordinated different branches of the conspiracy, we
affirm.
Background
From June 2018 to December 2019, Hines participated in a conspiracy to steal
mail containing credit cards, which were then used to buy goods from retail stores. The
conspiracy had three distinct phases. First, USPS employees in Chicago suburbs would
steal mail containing credit cards. Second, two other individuals—not employed by
USPS—would obtain personal identifying information to activate the stolen cards. And
third, a coconspirator would activate the cards to use to make fraudulent purchases.
Over the course of the conspiracy, Hines and his coconspirators stole 657 credit cards,
which they used to purchase goods worth more than $450,000.
Hines, the lone member to play a role in all three phases of the conspiracy, had
several responsibilities. First, he recruited at least three USPS employees to the
conspiracy and oversaw their work. He recruited the employees either in person or on
social media after discovering they worked for USPS. He then told them which kinds of
credit cards to steal and which pieces of stolen mail to keep for use in the conspiracy.
He paid the recruited employees about $100 per stolen credit card. As part of his
oversight, he encouraged at least one employee to continue working for the conspiracy
even after she expressed interest in leaving it. He also occasionally coordinated
meetings between the employees and other coconspirators to exchange stolen cards and
cash.
Second, Hines was the only person in contact with the two coconspirators who
knew how to steal personal identifying information about the rightful credit card
owners. He would then share some of that information with other coconspirators.
Finally, Hines was involved in the third part of the conspiracy, sometimes
activating the stolen credit cards himself with the stolen personal information and then
purchasing goods with the card. He also occasionally played an organizing role at that
stage of the conspiracy, giving activated cards to other coconspirators so they could buy
goods. If a store rejected the card or the card was declined, Hines would help his cohort
using the card to find a store that was less strict or ensure that the card would not be
declined.
Hines and his coconspirators were indicted for various crimes related to the
conspiracy, and Hines pleaded guilty to four charges: conspiring to defraud the United

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States, 18 U.S.C. § 371; stealing mail, 18 U.S.C. § 1708; using credit cards with intent to
defraud and obtain something valued over $1,000, 18 U.S.C. § 1029(a)(2), (c)(1)(A); and
engaging in aggravated identity theft, 18 U.S.C. § 1028A(a)(1).
A probation officer prepared Hines’s PSR which, in relevant part, recommended
that Hines receive a four-level enhancement under the Sentencing Guidelines for being
a leader or organizer in the conspiracy. See U.S.S.G. § 3B1.1(a). The PSR recounted that
Hines recruited three USPS employees; told those employees what mail to steal; paid
those employees; communicated with others to obtain personal identifying information
about the rightful credit card owners; brought others into the conspiracy, including his
aunt; and was the “conduit” through which all necessary information passed to prepare
the credit cards for use.
The parties then submitted sentencing memoranda debating whether the
enhancement was appropriate. Hines objected to it, though he did not object to any of
the facts recited in the PSR. He argued that the government lacked evidence that he had
authority or control over any other member of the conspiracy, that he coerced anyone,
or that the conspiracy operated with any sort of hierarchy. In his view, he was merely
“one criminal paying another for an illegal service.” The government countered that the
enhancement was supported by Hines’s text messages and summaries of interviews
conducted by the USPS Office of Inspector General of the three USPS employees whom
Hines recruited. The government highlighted statements from the three USPS
employees that Hines supervised their work and alone decided how much they would
be paid. The government also noted that Hines “positioned himself as the go-between
for the fraudulent card users and the conspiracy’s primary source of [personal
identifying information] necessary to activate the stolen cards.” Finally, the government
suggested that Hines did not simply seek out others to provide illegal services but
instead sought mentees whom he could mold into fraudsters.
At the sentencing hearing, the district court concluded that the enhancement
should apply to Hines’s conduct. Hines, the court explained, had organized each step of
the conspiracy:
The government has readily proved this one by a preponderance. The
defendant did recruit the letter carriers, and he's the one who paid them.
And from what the letter carriers have said in their memoranda of
interview, he decided how much to pay them. So there's not room for
negotiation here with the defendant. He organized the receipt of the cards.
And so we ought not forget the organizer component of the leader and

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organizer enhancement. He obtained the personal identifying information
from Mr. Johnson, activated and used the cards, and he received the lion's
share of the proceeds in that the carriers got a much smaller amount on a
per-card basis. So the government has clearly proven that the defendant
was the leader and organizer of this conspiracy.
The court sentenced Hines to a within-guidelines sentence of 108 months’
imprisonment and 3 years’ supervised release.
Analysis
This appeal turns on the application of § 3B1.1. The commentary to this
Guideline ticks off a list of factors for determining whether the enhancement applies:
“[T]he 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.”
U.S.S.G. § 3B1.1 cmt. n.4. No one factor is required for application of the enhancement,
and ultimately, the sentencing court must make a “commonsense judgment about the
defendant’s relative culpability” compared to others in the conspiracy. United States v.
Jones, 56 F.4th 455, 493 (7th Cir. 2022). We review the district court’s findings of fact for
clear error, and the application of the enhancement to those facts de novo. Id.
Hines primarily challenges the application of the § 3B1.1 enhancement on
grounds that there was no evidence that he controlled or had authority over his
coconspirators—one factor in the § 3B1.1 inquiry. He provides three reasons why he
believes he did not control his coconspirators, relying almost exclusively on
United States v. Weaver, 716 F.3d 439 (7th Cir. 2013). First, he argues that he could not
have controlled any of his coconspirators because he did not coerce them. See id. at 444
(“[T]he ability to coerce underlings is a key indicator of control or authority suggestive
of managerial or supervisory responsibility in the criminal enterprise.”). Second, he
imputes control of the conspiracy to another coconspirator to whom one USPS
employee (whom Hines did not recruit) said she reported. Third, Hines reprises his
argument that he could not have exercised control over his coconspirators because there
was no evidence of a hierarchy (the role of each conspirator, he says, was “equal”).

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Hines’s argument is too narrow, and his reliance on Weaver is misplaced. The
factor of “control” is just one of several that a district court may consider in applying
the enhancement. See United States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015). We have
repeatedly said that the enhancement is appropriate if “a defendant exercised control
over others or was responsible for organizing others for the purpose of carrying out the
crime.” United States v. Sullivan, 765 F.3d 712, 719 (7th Cir. 2014) (quotations omitted)
(emphasis added). And we have already explained that Weaver does not change this
rule. See Dade, 787 F.3d at 1167. Here, ample evidence supports the district court’s
determination that Hines was an organizer within the conspiracy. See United States v.
Knox, 624 F.3d 865, 874 (7th Cir. 2010) (member of fraudulent home “flipping” scheme
was an organizer when he was “the straw that stirs the drink” by being involved in
each step of the scheme, keeping “lion’s share” of proceeds, recruiting two others, and
providing suggestions to other coconspirators to further the scheme). Hines organized
the receipt of stolen cards, individually obtained personal identifying information from
others that matched those cards, and activated the cards (or provided activation
information to others) so that he or another coconspirator could make purchases with
them. He chose how much—and when—to pay the USPS employees and sometimes
personally organized meetings between them and other members of the conspiracy to
effectuate payment. He also received “the lion’s share of the proceeds,” as the district
court found, based on the USPS employees’ statements that they received only $100 per
stolen card—a finding that Hines does not challenge on appeal.
Furthermore, Hines’s narrow arguments about the lack of control are
unpersuasive. First, regarding the absence of coercion, we have never required a
showing of coercion to apply § 3B1.1. See Dade, 787 F.3d at 1167. Second, Hines’s
attempt to cast a different coconspirator as the conspiracy’s leader does not suggest that
Hines lacked control over others; more than one leader or organizer can run a
conspiracy. See § 3B1.1 cmt. n.4. Third, regarding the absence of an organizational
hierarchy, we do not require a strict hierarchy in a conspiracy to show control. See Jones,
56 F.4th at 496–97 (defendant exercised control despite no obvious hierarchy when he
instructed coconspirators on how much methamphetamine to buy, pooled money from
drug shipments, and gave advice to coconspirators as to how to avoid getting caught).
Lastly, Hines challenges the district court’s finding that he recruited the three
USPS employees (recruitment of accomplices being another factor in the § 3B1.1
inquiry). Hines again relies on Weaver, in which we characterized the defendant’s drug
sales with a buyer as a “merchant-customer relationship” rather than a recruitment into
a conspiracy. 716 F.3d at 445. But again, Hines’s reliance on Weaver does not help him.

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Unlike Weaver’s circumstances, Hines did not simply find sellers from whom he could
make illegal purchases; instead, he sought out law-abiding USPS employees and
convinced them to begin stealing to support his conspiracy, even going so far as to
encourage one employee to continue stealing for him after she said she wanted to leave
the scheme.
AFFIRMED

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