Case: 13-10538    Date Filed: 09/25/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10538
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:11-cr-00482-TWT-JFK-3



UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                    versus

WAYNE CUNNINGHAM,

                                                          Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (September 25, 2013)

Before CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.

PER CURIAM:
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      Wayne Cunningham appeals his 87-month sentence after pleading guilty to

one count of bank fraud and one count of aggravated identity theft. See 18 U.S.C.

§§ 1028A(a)(1) and 1344.       He claims that the district court clearly erred by

applying a three-level role enhancement under United States Sentencing Guideline

§ 3B1.1(b) for being a manager or supervisor.

                                            I.

      Cunningham’s sentence stems from his role in a bank fraud scheme. The

scam was relatively simple. Gafor Balogun would gain access to individuals’

credit reports through a credit-reporting website, look for businesses’ names on

images of deposited checks, and then use state websites to obtain the businesses’

tax identification numbers and the names of their owners.                   He gave that

information to “suppliers” who would recruit “runners” to go to various banks and

withdraw funds from the businesses’ accounts through cash withdrawals,

negotiated unauthorized cashier checks, and wire transfers. The runners used fake

identification obtained by Balogun. After each withdrawal, the funds were divvied

up.   Runners got $500 per withdrawal.           Balogun and the supplier split the

remainder, with the supplier typically taking at least fifty percent and Balogun

taking about thirty-five percent.

      Balogun had at least two suppliers who ran their own separate groups under

his general supervision. Cunningham worked as a runner in Christian Okafor’s



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group. But Cunningham did more than a typical runner: He recruited others to

join Okafor’s group as runners.

      Following his indictment by a federal grand jury, Cunningham pleaded

guilty to one count of bank fraud and one count of aggravated identity theft. See

18 U.S.C. §§ 1028A(a)(1) and 1344.              The presentence investigation report

calculated a base offense level of 7 under U.S.S.G. § 2B1.1(a)(1). It added 12

levels under § 2B1.1(b)(1)(G) because the loss was greater than $200,000 but less

than $400,000, and added 3 levels under § 3B1.1(b) because Cunningham was a

“manager or supervisor” of the bank fraud scheme and it involved more than five

participants.   The PSR subtracted 3 levels under § 3E1.1 for acceptance of

responsibility, resulting in a total offense level of 19. That offense level combined

with his criminal history category of VI to give Cunningham a guidelines range of

87 to 102 months.

      Cunningham objected to the three-level role enhancement, arguing that he

had only recruited runners into the scheme and more is required to warrant the

enhancement. The district court overruled Cunningham’s objection, finding that

his recruitment of others into the scheme was sufficient. The court then sentenced

him to 87 months imprisonment. This is his appeal.

                                          II.




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      Cunningham’s sole contention is that he should not have received a three-

level enhancement under U.S.S.G. § 3B1.1(b) because his only managerial act was

recruiting other runners to join the bank fraud scheme. We review only for clear

error the sentencing court’s decision to impose that aggravating role enhancement.

United States v. Phillips, 

, 1055 (11th Cir. 2002).

      The guidelines require a three-level enhancement to a defendant’s base level

offense if “the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(b). The guidelines commentary explains

that district courts may consider a number of factors in assessing the defendant’s

role in the offense, including:

      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.
Id., comment. (n.3). The commentary factors “are merely considerations for

the sentencing judge,” so there is no requirement that a certain number of

factors be present for the enhancement to apply. United States v. Martinez,

, 1026 (11th Cir. 2009) (quotation marks omitted). There

must, however, ultimately be an “exertion of some degree of control,

influence, or leadership.” Id. (quotation marks omitted).


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      Cunningham argues that he did not exercise the necessary degree of

control, influence, or leadership because he did not have any authority over

others’ actions after he recruited them into the bank fraud scheme. But the

“influence” he exerted over individuals by recruiting them into the scheme

was enough for § 3B1.1(b) to apply. See United States v. Thomas, 

, 1355 n.2 (11th Cir. 2006) (finding no clear error where the defendant

received a role enhancement under § 3B1.1(a) based solely on the fact that

he recruited others into the conspiracy). The district court therefore did not

clearly err in applying a three-level enhancement under U.S.S.G. § 3B1.1(b).

      AFFIRMED.




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