In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1373
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NGELICA V ASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 866—Ronald A. Guzman, Judge.
A RGUED O CTOBER 31, 2011—D ECIDED M ARCH 12, 2012
Before K ANNE and W ILLIAMS, Circuit Judges, and
D EG UILIO , District Judge.
K ANNE, Circuit Judge. For approximately seven years,
Angelica Vasquez aided undocumented immigrants in
filing claims for Illinois unemployment benefits. Vasquez
charged an $80 fee to prepare and submit applications
The Honorable Jon E. DeGuilio, United States District Court
for the Northern District of Indiana, sitting by designation.
2 No. 11-1373
on behalf of these aliens to the Illinois Department of
Employment Security (“IDES”). The social security num-
bers of unsuspecting, law-abiding citizens were unlaw-
fully used to apply for benefits. Vasquez arranged with
an IDES employee to process the applications she sub-
mitted as though the undocumented aliens were United
States citizens. For her services, Vasquez also received
a subsequent payment of one benefits check from each
of the claimants.
A jury convicted Vasquez of eight counts of mail fraud
on June 17, 2010, and she was sentenced to 96 months’
imprisonment. At the sentencing hearing, defense
counsel did not object to the presentence investigation
report (PSR), which applied four sentencing guideline
enhancements to Vasquez’s sentence. Vasquez now
argues on appeal that three of these enhancements were
applied in error. Because we find that the district court
did not commit plain error in applying the enhance-
ments set forth in the PSR, we affirm.
I. B ACKGROUND
IDES administers Illinois’s unemployment insurance
program, which provides income for individuals who
are unemployed through no fault of their own. Eligible
individuals must have earned a certain amount of wages
in their prior job and be actively seeking employment.
Although claimants need not be Illinois residents, they
must be United States citizens or authorized to work in
the United States.
No. 11-1373 3
To apply for benefits, an unemployed individual com-
pletes an application at a local office or online. The ap-
plication asks for information including the claimant’s
name, address, date of birth, last date of employment,
employer, spouse’s social security number, and ex-
istence of dependent children. In addition, a claimant
must answer a series of eligibility questions. After com-
pleting the form, a claimant must provide his signature,
certifying that the information is true and accurate.
The claimant must also produce two forms of identifica-
tion, one of which must include his social security num-
ber. The claimant’s social security number is neces-
sary because employers report this number to IDES.
One question on the unemployment insurance applica-
tion asks if the applicant is a United States citizen. If a
claimant answers in the affirmative, IDES does not
ask for proof of citizenship, instead relying on the claim-
ant’s certification that the information is true and accurate.
If the claimant responds that he is not a citizen but has
authorization to work in the United States, IDES requests
his alien registration number and verifies that the number
is valid within the Department of Homeland Security’s
database. If the citizenship question is left blank, the
application is rejected.
Once a claim has been approved, IDES mails a finding
to the claimant detailing his benefits and instructing him
to call the IDES phone system, Tele-Serve. IDES also
mails a confirmation number that is required to certify
eligibility. In order for the claimant to receive his next
check, he must call Tele-Serve on a biweekly basis, verify
4 No. 11-1373
his identification, and certify his continuing eligibility
for unemployment benefits. The first time a claimant
calls Tele-Serve he is required to create a personal iden-
tification number (PIN), which is used as an electronic
signature every time he calls thereafter. A claimant
enters his social security number and PIN to access
the certification menu within Tele-Serve. He then
provides his confirmation number or answers a series
of questions to certify continuing eligibility. Proper cer-
tification allows a claimant to collect his next biweekly
payment.
Beginning in 2001, Angelica Vasquez assisted illegal
immigrants in obtaining unemployment benefits. These
immigrants provided their information to Vasquez
either directly, by telephone, or through an intermediary.
Among the information provided, the immigrants gave
Vasquez social security numbers they had unlawfully
obtained so they could work within the United States.
As her clients were undocumented workers, Vasquez
was aware that these social security numbers were
“bad.” Vasquez charged $80 for completion of each ap-
plication. Her boyfriend, Demetrio Barajas, would often
meet with the illegal immigrants and accept informa-
tion and payments on Vasquez’s behalf. Vasquez did not
inquire if the claimants were United States citizens,
had valid social security numbers, or were legally per-
mitted to work in the United States. Nor did Vasquez
request documentation or a signature from the claim-
ants. Often the claimants never signed or even saw their
applications.
No. 11-1373 5
Vasquez had an arrangement with an IDES employee,
James Snell, to process these falsified applications.
Vasquez would drop off the completed applications with
Snell, who would then input the data and approve the
payment of benefits. If the citizenship question on the
applications was left blank, Snell would input the
answer “yes” into the computer. He would process these
applications without the claimant present and without
any proof of identification. On occasion, Vasquez
would treat Snell to lunch or buy him a bottle of gin as
payment for his services.
After benefits were approved, the illegal immigrants
would receive a letter in the mail containing a confirma-
tion number. They would provide this number to
Vasquez or Barajas. Vasquez would call Tele-Serve, set
up a PIN for each claimant, and use the confirmation
number provided by the claimant to certify ongoing
eligibility for unemployment benefits. The claimants
continued to provide confirmation numbers to Vasquez
each time they received a new check. As payment for
her services, Vasquez received the entirety of the
second benefits check from each claimant. Again, Barajas
often received these payments on behalf of Vasquez. If
a claimant failed to pay, Vasquez would reroute the
checks to a different address.
In December 2007, IDES promoted Snell, who
informed Vasquez that he would no longer be able to
process unemployment insurance applications. Shortly
thereafter, Vasquez ceased helping illegal immigrants
collect unemployment benefits and began working full-
6 No. 11-1373
time as a dispatcher at Roto-Rooter. In October 2008,
following an extensive investigation at Snell’s IDES
branch, Vasquez was interviewed by federal authorities
and arrested for her role in a scheme to defraud IDES.
On April 8, 2010, a grand jury returned a superseding
indictment charging Vasquez with nine counts of mail
fraud and one count of forfeiture. The superseding in-
dictment alleged that Vasquez devised and participated
in a scheme to defraud IDES and to obtain money
through materially false and fraudulent representa-
tions, resulting in an IDES loss of over $700,000 in unem-
ployment benefit payments to ineligible claimants.
Each count alleged delivery by U.S. mail of IDES unem-
ployment payments to an ineligible claimant. On June 17,
2010, a jury convicted Vasquez of eight of the nine
counts of mail fraud.
On January 6, 2011, Vasquez was sentenced to
96 months’ imprisonment and ordered to pay restitution
in the amount of $724,596. During the sentencing
hearing, the district judge asked defense counsel if he
had any objections to the PSR, to which defense counsel
replied, “No, your honor.” The PSR included four sen-
tencing guideline enhancements and calculated a total
offense level of 33. As a defendant with no prior convic-
tions, the advisory sentencing range was calculated at
135 to 168 months. The district judge found the guide-
lines to be “unnecessarily harsh” in Vasquez’s case and
lowered the sentence to 96 months. Vasquez now chal-
lenges the district court’s application of three sen-
tencing guideline enhancements.
No. 11-1373 7
II. A NALYSIS
A. Standard of Review
Before reviewing the application of the sentencing
guidelines, we must first determine the appropriate
standard of review. The government argues that de-
fense counsel’s failure to object to the PSR constitutes
waiver of Vasquez’s argument on appeal. In contrast,
Vasquez argues that her objections to the sentencing
enhancements were merely forfeited. “Forfeiture takes
place when counsel or a defendant negligently bypasses
a valid argument.” United States v. Anderson, 604 F.3d
997, 1001 (7th Cir. 2010). Waiver, on the other hand,
involves an intentional abandonment of a known right,
id., and precludes all appellate review on that
issue, United States v. Turner, 651 F.3d 743, 747 (7th Cir.),
cert. denied, 132 S. Ct. 863 (2011). “Where the govern-
ment cannot proffer any strategic justification for a deci-
sion, we can assume forfeiture.” Anderson, 604 F.3d at 1001-
02. If we determine that the defendant forfeited an ar-
gument, we review only for plain error. Id. at 1002.
“Our duty when considering waiver is to divine from
the record an intent to forego an argument.” United States
v. Rodriguez-Gomez, 608 F.3d 969, 972 (7th Cir. 2010).
Waiver is to be construed liberally in favor of the defen-
dant. United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th
Cir. 2005). In this case, the government argues that
Vasquez intentionally abandoned her right to chal-
lenge the application of the sentencing enhancements
by choosing instead to focus on the mitigating factors
of her case. At sentencing, defense counsel argued for
8 No. 11-1373
a below-guidelines sentence by highlighting several
mitigating factors. For instance, counsel noted that the
illegal immigrants who were involved in the scheme
previously held jobs and paid taxes. In addition, counsel
downplayed Vasquez’s knowledge of the immigrants’
undocumented status. The government alleges that
Vasquez strategically chose not to challenge the sen-
tencing enhancements in the PSR to avoid discussion of
the aggravating factors of her offense. Perhaps
sympathetic to Vasquez’s mitigating factors, the district
court departed from the guidelines and lowered
Vasquez’s sentence from 135 months to 96 months.
Vasquez argues that there was no strategic reason
for failing to raise objections to the sentencing enhance-
ments. The three enhancements increased Vasquez’s
offense level by ten. Challenging these enhancements
would not have prevented defense counsel from
presenting a mitigation argument. Moreover, Vasquez
notes that many of defense counsel’s arguments
during sentencing were erroneous.
Ultimately, it does not matter whether we find waiver
or forfeiture as Vasquez’s argument still fails under
plain error review. Accord United States v. Lewis, 597
F.3d 1345, 1347 (7th Cir. 2010).
B. Sentencing Guidelines
Under plain error review, the court reverses only when
there is: “(1) an error or defect (2) that is clear or obvious
(3) affecting the defendant’s substantial rights (4) and
No. 11-1373 9
seriously impugning the fairness, integrity, or public
reputation of judicial proceedings.” Anderson, 604 F.3d
at 1002. Vasquez challenges the application of three
sentencing enhancements, which we address separately.
1. Organizer or Leader
The district court applied a four-level enhancement
to Vasquez’s sentence under § 3B1.1(a) of the United
States Sentencing Guidelines. Under this section, a defen-
dant’s sentence may be increased by four levels “[i]f
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) (2009).1 A “par-
ticipant” is defined as “a person who is criminally respon-
sible for the commission of the offense, but need not
have been convicted.” Id. § 3B1.1 cmt. n.1. The defendant
must have organized or led one or more participants.
Id. § 3B1.1 cmt. n.2.
“The ‘central concern’ of § 3B1.1 is the defendant’s
relative responsibility for the commission of the of-
1
Vasquez’s original sentencing hearing was to be held on
September 21, 2010. Accordingly, the PSR applies the 2009
sentencing guidelines. But Vasquez’s sentencing hearing did
not take place until January 2011. At that time, the 2010 sen-
tencing guidelines would have been in effect. See U.S.S.G.
§ 1B1.11(a). Because the specific guidelines applied to Vasquez’s
sentence are identical in the 2009 and 2010 versions, we find
no error in the district court’s reliance on the 2009 guidelines
as applied in the PSR.
10 No. 11-1373
fense.” United States v. Mendoza, 576 F.3d 711, 717 (7th
Cir. 2009). The court considers factors such as the defen-
dant’s decision-making authority, nature of participation,
recruitment of accomplices, “claimed right to a larger
share of the fruits of the crime,” role in planning and
organizing, scope of illegal activity, and control and
authority exercised over others. U.S.S.G. § 3B1.1 cmt. n.4;
United States v. Knox, 624 F.3d 865, 874 (7th Cir. 2010).
In order to apply a § 3B1.1(a) adjustment to a
defendant’s sentence, “the defendant must have
exercised some degree of control over others involved in
the commission of the offense or he must have been
responsible for organizing others for the purpose of
carrying out the crime.” Knox, 624 F.3d at 874.
Vasquez contends that the four-level adjustment was
improper because she did not have control over and did
not organize the individuals who came to her for assis-
tance. Vasquez likens her case to United States v.
Reneslacis, 349 F.3d 412 (7th Cir. 2003). In Reneslacis, the
defendant referred people seeking immigration papers
to an undercover agent who, for a bribe, would tender
the papers and provide a kickback to the defendant. Id.
at 414. We found that the defendant did not act as a
leader because the individuals he referred to the under-
cover agent were merely customers, not subordinates
subject to his control. Id. at 417. In addition, the defen-
dant was not an organizer because there was no common
criminal objective; “everyone whom Reneslacis worked
with had their own agenda . . . making it impossible to
say that Reneslacis was organizing them for concerted
action.” Id. at 418. We held that the defendant’s actions
No. 11-1373 11
were similar to those of a narcotics broker, to whom the
four-level adjustment under § 3B1.1(a) does not apply.
Id. (citing United States v. Schuh, 289 F.3d 968, 973 (7th
Cir. 2002)).
Vasquez’s case differs significantly from Reneslacis.
Vasquez did not merely refer customers to Snell at the
IDES office. Instead, Vasquez exercised near total
control over the entire scheme. She received payment
up front to fill out the unemployment insurance applica-
tions—which then remained in her sole possession until
she turned them over to Snell. She recruited others to help
in her efforts, including her boyfriend Barajas.
After benefits were awarded, she was responsible for
calling Tele-Serve to certify continuing eligibility. Vasquez
created a PIN for each claimant and had the ability to
reroute checks if she was not compensated. Through
these payments, which were paid directly to her or
Barajas, Vasquez received a large share of the proceeds
of the criminal activity. Thus, she shared a common
interest with her clients in seeking unemployment bene-
fits. Finally, there is sufficient evidence to find that five or
more participants (including Vasquez, Barajas, Snell, and
numerous undocumented immigrants) were involved in
the criminal activity alleged. In light of these facts, the
district court properly considered Vasquez to be an
organizer or leader and did not err in applying § 3B1.1(a).
2. Identity Theft
The district court also applied a two-level enhancement
under U.S.S.G. § 2B1.1(b)(10)(C)(i) (2009). This section
12 No. 11-1373
applies if the defendant’s offense involved “the unautho-
rized transfer or use of any means of identification unlaw-
fully to produce or obtain any other means of identifica-
tion.” Id. Congress enacted this section as a deterrent
to “affirmative identify theft” or “breeding.” Id. § 2B1.1
cmt. background. In these types of cases, “a defendant
uses another individual’s name, social security number,
or some other form of identification . . . to ‘breed’ (i.e.,
produce or obtain) new or additional forms of identifica-
tion.” Id. As an example, if a defendant obtains a bank
loan by unlawfully using another’s name and social
security number, the bank account number is considered
the “other means of identification” and the sentencing
enhancement applies to the defendant’s conduct.
Id. § 2B1.1 cmt. n.9. Similarly, if a defendant uses
another’s name and address to obtain a credit card in
that individual’s name, the enhancement applies. Id.
In contrast, the enhancement does not apply to a
defendant who merely uses a stolen credit card or forges
a signature to cash a stolen check. Id.
Means of identification is defined as “any name or
number that may be used, alone or in conjunction with
any other information, to identify a specific individual,”
18 U.S.C. § 1028(d)(7), except such means “shall be of
an actual (i.e., not fictitious) individual, other than the
defendant or a person for whose conduct the defendant
is accountable . . . .” U.S.S.G. § 2B1.1 cmt. n.1. A means
of identification as defined in § 1028(d)(7) may include
an “access device,” the definition of which includes a
“personal identification number . . . that can be used . . .
to obtain money, goods, services, or any other thing
No. 11-1373 13
of value, or that can be used to initiate a transfer of
funds.” 18 U.S.C. § 1029(e)(1).
Vasquez acknowledges that actual individuals’ social
security numbers were used unlawfully as the first
means of identification. At issue is whether the PINs
created for purposes of accessing the Tele-Serve system
may be considered the “other means of identification.”
Vasquez argues that the PINs do not meet the guideline
definition since each PIN only served to identify the
benefits claimant himself. In other words, no actual
individual, other than the claimant, was identified by
the PIN.
A claimant’s PIN is obtained by calling Tele-Serve
and inputting one’s social security number. A social
security number is all that is required. The PIN is then
used in conjunction with the claimant’s social security
number to access Tele-Serve each time the claimant calls
in to verify continuing eligibility. Claimants are warned
to safeguard their PIN since it has the same legal effect
as a signature on a paper document. IDES personnel
do not have access to each claimant’s PIN.
We agree with the district court that the PIN is a “num-
ber that may be used . . . to identify a specific individual.”
18 U.S.C. § 1028(d)(7). But does the PIN identify an
actual individual other than the defendant (or in this
case, the unlawful claimant) within the meaning of
U.S.S.G. § 2B1.1? We believe it does. Under the IDES
system, a claimant’s PIN is linked to an individual’s
social security number. Both are required to access Tele-
Serve, and the social security number is required to
14 No. 11-1373
create the PIN. IDES uses a claimant’s social security
number to track the payment of benefits within its sys-
tem. Accordingly, when a PIN is created through the
unlawful use of an actual individual’s social security
number, that PIN represents an additional means of
identification linked to that actual individual.
The fact that the claimants used their own names and
other personal information on their applications does not
change our analysis. Other courts examining cases in
which social security numbers of actual individuals
were paired with new photographs or names have held
that these “hybrid” means of identification still qualify
for the sentencing enhancement. See, e.g., United States v.
Newsome, 439 F.3d 181, 185-86 (3d Cir. 2006) (alteration
of existing means of identification by changing the photo-
graph created a “hybrid” means of identification sub-
jecting the defendant to a two-level enhancement);
United States v. Williams, 355 F.3d 893, 900 (6th Cir. 2003)
(enhancement applied to defendants who obtained
bank loans by using their actual names with others’
social security numbers). Here, the PIN was affiliated
with an actual individual’s social security number as
well as the claimant’s personal information. This link
between the PIN and the claimant’s personal informa-
tion does not sever the tie that remains between the PIN,
social security number, and victim. See United States v.
Melendrez, 389 F.3d 829, 835-36 (9th Cir. 2004) (using
fictitious names on identification documents does not
sever the link between the victim and his social security
number).
No. 11-1373 15
We find that the district court did not plainly err in
applying a two-level means of identification enhance-
ment to Vasquez’s sentence.
3. Number of Victims
Finally, Vasquez’s sentence included a four-level en-
hancement under U.S.S.G. § 2B1.1(b)(2)(B) (2009), which
applies if a defendant’s offense involved fifty or more
victims. A “victim” is anyone who sustained actual loss
or bodily injury, or “any individual whose means of
identification was used unlawfully or without authority.”
Id. § 2B1.1 cmt. n.1, 4. Vasquez argues that the enhance-
ment should not apply because only nine victims were
involved. In support of this argument, Vasquez notes
that she was charged with committing only nine counts
of mail fraud and only one social security number was
used in each of those discrete offenses.
We reject Vasquez’s reasoning. Vasquez engaged in a
scheme involving numerous participants over the course
of seven years. The government produced evidence of
approximately seventy-two claimants who used unlaw-
fully obtained social security numbers in applying
for benefits with Vasquez’s assistance. These social
security numbers represent the victims whose means
of identification were used illegally.
Vasquez was charged with nine counts of mail fraud.
A scheme to defraud is required to establish mail fraud.
See 18 U.S.C. § 1341 (“Whoever, having devised or intending
to devise any scheme or artifice to defraud . . . places in
16 No. 11-1373
any post office . . . any matter or thing whatever to be
sent or delivered by the Postal Service . . . shall be fined
under this title or imprisoned not more than 20 years,
or both.” (emphasis added)). Thus, the nine counts of
mail fraud represent Vasquez’s use of the Postal Service
to execute her unemployment benefits scheme. Because
the entire scheme is an element of the crime, the
district court did not err in considering all of the victims
involved in the scheme instead of only the nine victims
associated with Vasquez’s use of the Postal Service. See
United States v. Boone, 628 F.3d 927, 934 (7th Cir. 2010)
(“[A] mailing in furtherance of a scheme to defraud is
simply the element that confers federal jurisdiction
under the mail fraud statute.”).
III. C ONCLUSION
We hold that it was not plain error for the district court
to apply the sentencing guideline enhancements set
forth in the PSR to Vasquez’s sentence and thus A FFIRM .
3-12-12