author: SUTTON, Circuit Judge.

text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 18, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Donley’s Inc.; Precision Environmental Company; Construction Employers Association; B&B Wrecking & Excavating, Inc.; Hunt Construction; Cleveland Cement Contractors, Inc., Proposed Intervenors.
    Nos. 16-1800/1969
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: September 7, 2016

      ON MOTIONS: Frank W. Buck, LITTLER MENDELSON, P.C., Cleveland, Ohio, for Proposed Intervenors.
    Before: KEITH, ROGERS, and SUTTON, Circuit Judges.
   ORDER

SUTTON, Circuit Judge.

When a party loses in an administrative proceeding before the National Labor Relations Board, it may ask a court of appeals to review the decision. The winning parties may intervene to defend the Board’s judgment in their favor. See Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 208, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965). That’s true to the extent that the relevant parties meet our procedural requirements, or to the extent that we waive those procedural requirements. Here we do the latter. Due to a scrivener’s error, when drafting the motion, one of the “charging parties” — a victor in the Board proceeding and a would-be intervenor in our review of that decision — failed to file a timely motion to intervene. No party objects to the addition of this late intervenor — Hunt Construction. We therefore permit the company to participate in the action here. In the process, we clarify that Federal Rule of Appellate Procedure 15(d), which sets forth the conditions for intervening in our review of Board decisions, is a “claim-processing rule” that does not affect our subject matter jurisdiction.

On May 6, 2016, the Board found that the International Union of Operating Engineers had violated the National Labor Relations Act by seeking to undermine the Board’s prior judgments. 363 NLRB No. 184. The Union petitioned for review on June 13. The Board cross-petitioned for review on July 6. On July 13, five of the six charging parties, all winners in the Board proceedings, moved to intervene in the Union’s petition for review. They filed another motion to intervene in both the Union’s petition and the Board’s cross-petition after the court clerk’s office directed them to do so. On August 2, more than thirty days after the Union filed its initial petition for review, the charging parties’ counsel filed another amended motion to intervene in both the Union’s and the Board’s petitions, clarifying that they had inadvertently omitted a sixth charging party, Hunt Construction, from their first two motions.

Unless otherwise provided by statute, “a person who wants to intervene in a proceeding under [Rule 15(d)] must file [a motion to intervene] ... or other notice of intervention authorized by statute ... within 30 days after the petition for review is filed.” Fed. R. App. P. 15(d). Through their counsel’s inadvertent omission, Hunt Construction missed the thirty-day window to intervene in the Union’s petition for review (though its motion is timely with regard to the Board’s cross-petition). No one objects to Hunt’s -motion to intervene. But we may allow Hunt into the action only if Rule 15(d) does not set a jurisdictional bar.

Some time-limitation provisions are imposed by Congress with the intent of denying the federal courts jurisdiction once a filing window has closed. The filing deadline for civil appeals, the Supreme Court has said, is one such jurisdictional rule. Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Many other statutory filing deadlines are not. See, e.g., United, States v. Wong, — U.S. —, 135 S.Ct. 1625, 1632-33, 191 L.Ed.2d 533 (2015) (Federal Tort Claims Act time limitations non-jurisdictional); Sebelius v. Auburn Reg’l Med. Ctr., — U.S. —, 133 S.Ct. 817, 824-26, 184 L.Ed.2d 627 (2013) (Medicare reimbursement time limit non-jurisdictional); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 441, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (deadline for appealing to Veterans Court non-jurisdictional); Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (federal habeas filing deadline non-jurisdictional); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (filing deadline to bring Title VII claim non-jurisdictional). These kinds of filing deadlines amount to (non-jurisdictional) claim-processing rules. And while courts generally enforce these deadlines as well, they retain authority to waive them or, for that matter, to permit the parties to - waive them. In the last decade, the Supreme Court has been on a mission “to ‘facilitate]’ clarity by using the term ‘jurisdictional’ only when it is apposite.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 510-12, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). We have picked up on the hint. See generally Maxwell v. Dodd, 662 F.3d 418, 421 (6th Cir. 2011); Pruidze v. Holder, 632 F.3d 234, 238 (6th Cir. 2011).

Appellate Rule 15(d) presents a straightforward case. The thirty-day filing deadline does hot implement any general jurisdictional statute, and it thus falls on the claim-processing-rule side of the line, a side that permits forfeiture and equitable exceptions to the deadline. To our knowledge, the only statutes that lay out a thirty day period for intervention are “the 30-day periods found in the Communications Act Amendments .,. and the Sugar Act of 1948.” Fed. R. App. P. 15 Comm. Note. That does not necessarily mean that the thirty-day window is jurisdictional in those settings. But the absence of any such requirement in the National Labor Relations Act — the relevant statuté here — at a minimum is a sufficient reason for concluding that the application of the Appellate Rule 15(d) deadline here is not jurisdictional.

And there indeed is no specific provision governing intervention in the National Labor Relations Act. See Scofield, 382 U.S. at 209-10, 86 S.Ct. 373. Even though “it is silent on the intervention problem,” 29 U.S.C. § 160(f) “serves as our: guide.” Id. at 209, 86 S.Ct. 373. That provision explains that petitions for review shall be filed “as provided in section 2112 of Title 28,” which in turn says that “[t]he rules prescribed under the authority of [28 U.S.C. § ] 2072 . . . may provide for the time and manner of filing.” Section 2072 codifies the (amended) Rules Enabling Act, which delegates to the Supreme Court the “power to prescribe general rules of practice and procedure.” See Pub. L. 101-650, §§ 315, 321, 104 Stat. 5115, 5117 (1990). One of those general rules is Appellate Rule 15(d).

Accordingly, this thirty-day filing deadline is a claim-processing rule that the courts of appeals can excuse. Neither the Union nor the Board opposes any of the motions for intervention, including Hunt’s. No prejudice will result if we permit Hunt to participate in these cases.

For these reasons, the amended motions to intervene are granted.


source: Caselaw Access Project

author: ROGERS, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Derryl L. TANNER, Defendant-Appellant.
    No. 15-3719
    United States Court of Appeals, Sixth Circuit.
    Argued: June 15, 2016
    Decided and Filed: September 13, 2016

      ARGUED: Christina Wong, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Mark S. Bennett, United States Attorney’s Office, Cleveland, Ohio, for Ap-pellee. ON BRIEF: Christina Wong, Melissa M. Salinas, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Mark S. Bennett, United States Attorney’s Office, Cleveland, Ohio, for Appellee.
    Before: SILER, ROGERS, and SUTTON, Circuit Judges.
   OPINION

ROGERS, Circuit Judge,

Derryl Tanner was convicted on a guilty plea for executing a series of fraudulent loans involving a house and two vehicles. He was sentenced to sixty months’ imprisonment, a below-Guidelines term. On appeal, Tanner challenges his sentence on several grounds. Tanner is not entitled to relief on his ineffective-assistance claims or on his challenge to a two-level role enhancement. However, because Tanner was given two criminal history points for. a state-court case that resulted in only one sentence — albeit for two crimes — his Guidelines range was not calculated properly. Resentencing is therefore required.

The indictment in this case centered on a bank fraud scheme involving a luxury home on Fitzroy Street in Westlake, Ohio (the Fitzroy house). The participants in the scheme — Tanner, co-defendant Julie Becker, and several unindicted co-conspirators — collaborated to obtain a mortgage and two lines of credit on the Fitzroy house. Tanner’s fraudulent vehicle loans, the result of his efforts alone, came later.

The bank fraud began in April .2006. As the Fitzroy house was.being built, Tanner learned that the owner of the company overseeing construction had fallen on tough financial times and wanted to sell the house' for construction costs. Tanner then conspired with Becker for her to serve as the straw buyer of the property. Under Tanner and Becker’s agreement, Becker would not have to provide a down payment, and she would also receive a kickback after the purchase of the house for her participation in the transaction. Although the construction costs amounted to $1,357 million, Tanner and a real estate agent prepared a purchase agreement in Becker’s name for $2.1 million. The difference between those two figures represented the amount that Tanner and his co-conspirators hoped to receive from the property sale.

After securing Becker’s agreement to join the scheme, Tanner worked on obtaining a loan from First Place Bank (First Place). Becker signed the purchase agreement for the house, falsely stating in that document that she had deposited $10,000 in earnest money with the seller. Tanner also conspired with Becker for her to sign a promissory note benefitting the seller in the amount of $315,000, and representing to First Place that the seller would have a second mortgage. Tanner knew all the while, however, that Becker would not be required to make the monthly payments on the note. Becker then submitted to First Place the loan application, which contained false information about her income and assets. An unindicted co-conspirator also provided $320,000 for a down payment. Before' First Place approved the loan, Tanner assured the bank that Becker was an associate producer with a film company that Tanner owned, and that the company paid Becker between $180,000 and $350,000 per year. Although Tanner did own a film company, none of the information about Becker’s employment or salary was true.

First Place approved the application in August 2006, funding a loan of $1.47 million. Most of the proceeds were distributed to the seller of the Fitzroy house. The balance went to the real estate.agent who prepared the purchase agreement and the co-conspirator who provided the down payment.

About a week later, Tanner coordinated applications in Becker’s name for two home-equity loans, from banks other than First Place. Tanner did so to withdraw the false equity created by the inflated purchase price for the Fitzroy house. For the first loan, Tanner submitted false tax returns grossly overstating Becker’s income. After the bank approved a $250,000 loan, Tanner transferred large sums from Becker’s personal bank account — where the funds were initially deposited — to his own accounts. Several weeks later, Tanner and Becker filed another fraudulent loan application in Becker’s name. That application, too, was approved, putting another $350,000 into the co-defendants’ pockets. Tanner then moved into the Fitzroy house with his partner, and lived there for four years. After several years, however, the mortgage payments proved overwhelming, and foreclosure soon followed. The plea transcript and the presentence investigation report (PSR) indicate that First Place lost $670,000 in the foreclosure. The other banks lost $250,000 and $350,000, the full amount of the loans.

In addition to the bank fraud, Tanner also scammed two companies for the purpose of obtaining new vehicles. After entering false information concerning his employment and income in loan applications, Tanner was approved for loans on a 2010 Acura TL and a 2010 Toyota Tundra. Both vehicles were repossessed and resold at a loss after Tanner failed to make payments. This fraud — perpetrated by use of the mail system — occurred between April and August 2010, near the end of Tanner’s stay in the Fitzroy house.

All of this led to a six-count indictment in October 2014. For Tanner’s and Becker’s actions regarding the mortgage and two home-equity loans, the indictment charged them with conspiracy to commit bank fraud and three counts of bank fraud. Tanner was also charged with mail fraud for his fraudulent car-loan applications. In February 2015, Tanner pled guilty to all six counts. At the plea hearing, following the prosecutor’s recitation of the facts, Tanner and his counsel expressed concern that a leader/organizer role enhancement would apply to Tanner as a matter of law based on the prosecutor’s recitation. The prosecutor stipulated, however, that Tanner was not agreeing that the enhancement applied by pleading guilty, and that the parties would argue the facts on this issue at sentencing.

The PSR that was filed by the probation department before sentencing contained a paragraph asserting that Tanner “was an organizer, leader, manager, or supervisor” of the bank fraud under U.S.S.G. § 3Bl.l(c). Tanner’s counsel objected to the so-called role enhancement, arguing that “in the big picture,” Tanner was not a leader or organizer. In arguing the applicability of the role enhancement at sentencing, Tanner’s counsel also asserted that unindicted, co-conspirators fed the bank-fraud scheme to Tanner and that Tanner “got swept up in the idea” that he should.be living a lavish lifestyle. Not persuaded, the district court applied the role enhancement.

The two-level increase for the enhancement and a three-level decrease for acceptance of responsibility put Tanner’s offense level at twenty-two. That number, combined with a criminal history score of seven, yielded a Guidelines range of 63-78 months. Of particular relevance here, two of the seven criminal history points were attributable to a state-court criminal case that included convictions for felonious, assault and domestic violence. After accounting for the 18 U.S.C. § 3553(a) factors, the district court sentenced Tanner to sixty months’ imprisonment, in addition to $1.3 million in restitution. Tanner appeals the judgment entering that sentence.

Tanner is entitled to ■ resentencing because he was erroneously. assessed two criminal history points for a state-court case instead of one point, an error that generated a higher Guidelines range than he should have had. None of Tanner’s remaining challenges to his sentence, however, has any merit. In the first place, Tanner’s claim that the district court committed procedural error by applying a role enhancement falls short, as the record supports the finding that Tanner was a leader and organizer of the bank fraud. Nor do the ineffective-assistance claims warrant relief. Not only does resentencing moot those claims, but the claims should not be reviewed at this juncture anyway.

I.

Tanner’s sole winning claim concerns the calculation of criminal history points based on Case No. 081793 in the Court of Common Pleas of Lorain County, Ohio. Tanner received only one sentence for the two' crime-of-violence offenses in that case. That means that he should have been assessed only one criminal history point under U.S.S.G. § 4A1.1, reducing his total points from seven to six. Such an error warrants resentencing under the correct Guidelines range.

This claim involves the application of § 4Al.l(e) to the judgment in Case No. 081793. Section 4A1.1 allows for the addition of criminal history points based on prior sentences. That section provides:

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
(e) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 -points for this subsection.

U.S.S.G. § 4A1.1. Subsection (e) carves out an exception to another provision of the Guidelines, § 4A1.2(a)(2), which indicates that multiple prior sentences must be treated as a single sentence if the underlying offenses were not separated by an intervening arrest, and “the sentences resulted from offenses contained in the same charging instrument ... or ... the sentences were imposed on the same day.” Under § 4Al.l(e), a sentence that would remain uncounted for purposes of a defendant’s criminal history calculation nonetheless receives a point if the underlying conviction was for a crime, of violence. In other words, if a defendant received two sentences for two crime-of-violence convictions, § 4Al.l(e) requires courts to assess a point for each sentence.-

In this case, the district court assessed two points under § 4A1.1 for Case No. 081793. That case arose from an incident on October 17, 2010, when Tanner struck his partner twice in the face and broke her arm by punching it. Charges for felonious assault, domestic violence, and endangering children followed soon after. All three charges were resolved on a guilty plea Neither party in this case disputes that felonious assault and domestic violence— felonies of the second and fourth degree, respectively — are crimes of violence for purposes of § 4Al.l(e),. and that misdemeanor child-endangerment is not. See § 4B1,2(a)(1) (defining crime of violence). At sentencing in this case, the district court relied on the PSR, which described the three charges and noted that Tanner had been sentenced to three years’ proba? tion, among other sanctions. In calculating Tanner’s points, the district court assessed him one point under § 4Al.l(c) and one point under § 4Al.l(e), ostensibly so that Tanner would receive points, for both the felonious-assault and domestic-violence counts.

Assessing two points was an error because the two crimes in question resulted in only one sentence. We apply plain-error review with respect to this issue, as recognized by the Government, because Tanner did not object specifically to the assignment of the two points. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc). Failure to calculate the Guidelines range correctly generally results in plain error. See United States v. McCloud, 730 F.3d 600, 603 (6th Cir.2013) (quoting United States v. Rosenbaum, 585 F.3d 259, 266 (6th Cir.2009)).

Here the error is plain. The fairest reading of the judgment in Case No. 081793 is that Tanner received one sentence on the three counts. The judgment indicates that Tanner pled guilty to the three charges and was “sentenced to Community Control on count(s) I, II & III.” The sentencing portion of the judgment shows that Tanner was sentenced to one term of three years’ probation and five additional sanctions, including community service. Under Ohio law, probation and other community-control, sanctions may be combined to form a single sentence, see Ohio Rev. Code §§ 2929.15(A), 2929.17, and nothing in the judgment indicates that some of the sanctions correspond to one of the crime-of-violence convictions but riot the other. To the contrary, the judgment states that the “defendant [is] sentenced to Community Control” before listing the probation term and additional sanctions. That language suggests that the sanctions constitute just one sentence. Nor does the part of the judgment addressing what would happen .if Tanner violated the sanctions indicate the term of imprisonment that Tanner would receive for each offense if probation was revoked. This, too, suggests that Tanner received only one sentence.

.[3,4] Ohio’s “allied offenses” rule explains why the judgment likely contains one sentence even though Tanner pled guilty to three crimes. In Ohio, every conviction must generally receive its own sentence. See State v. Saxon, 109 Ohio St.3d 176, 846 N.E.2d 824, 828 (2006). Courts are thus prohibited from “grouping offenses together and imposing a single, lump’ sentence for multiple felonies.” Id, The rule against imposing a single sentence for multiple offenses is limited, however, by a statute providing that “[w]here the same conduct by [a] defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.” Ohio Rev. Code § 2941.25(A). The word “convicted” in the statute has been interpreted to refer to both the conviction “and the imposition of a . sentence or penalty.” State v. Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 182, 185 (2010). Defendants, then, “may be indicted and tried for allied offenses of similar import, but may be sentenced on only one of the allied offenses.” Id, at 187 (citation omitted). “[T]he trial court [thus] effects the merger at sentencing.” Id. (citation omitted).

Such a merger probably happened here. The facts in the PSR concerning Case No. 081793 suggest that felonious assault and domestic violence are allied offenses in the context of that case, and that Tanner therefore received .only one sentence for those convictions. In determining whether offenses should be merged at sentencing, Ohio courts assess whether the offenses involved separate conduct, whether the offenses were “committed with separate animus or motivation,” and whether the offenses “involv[ed] separate victims or [separate] harm.” State v. Trigg, No. 26757, 2016 WL 1730270, at *3 (Ohio Ct. App. Apr. 29, 2016). Each factor points in favor of merging felonious assault and domestic violence. First, both charges were likely based on the same conduct — Tanner hitting his partner twice with a remote control and punching her arm, all within the span of a few seconds. Indeed, domestic violence requires proof of the same elements as felonious assault, along with the additional requirement that the victim be a family or household member. See Ohio Rev. Code §§ 2903.11(A)(1) (felonious assault), 2919.25(A) (domestic violence). Second, the only motivation for Tanner to hit his partner appeared to involve Tanner’s anger about his partner’s comment concerning another woman. Third, the same person was the victim of both crimes. In similar circumstances, the Ohio Court of Appeals has required merger of these two felonies at sentencing. That case is on all fours. There, as here, a defendant punched the same victim multiple times in a short time period, and that conduct led to felonious assault and domestic violence charges. See Trigg, 2016 WL 1730270, at *1, *3. The allied-offenses rule thus explains why the judgment in Case No. 081793 does not on its face provide for multiple sentences.

That conclusion is not affected by the trial court’s failure to explicitly link the sentence to one of the two allied offenses. It is true that under state law, the prosecutor has the authority to decide which allied offense the defendant will be sentenced on, and that a court must specify in the judgment the offense to which the sentence attaches. See Whitfield, 922 N.E.2d at 188. It is also true that if Tanner had appealed thé community-control sentence, the Ohio Court of Appeals may have remanded for specification of which allied offense served as the basis for the sentence. Even so, any error in that respect does not relate to whether the trial court imposed more than one sentence. “Whether a prior sentence counts for criminal history purposes is a question of federal, not state law.” United States v. Morgan, 390 F.3d 1072, 1074 (8th Cir.2004) (citation omitted). Our inquiry for purposes of § 4Al.l(e) is whether the judgment contained one sentence, not whether the judgment met every requirement of state law.

In short, the judgment in question is better read to include only one sentence for the felonious-assault and domestic-violence convictions. Tanner should have therefore not been assessed a criminal history point under § 4Al.l(e) for that case. What is more, the one criminal history point would have made a difference. With a criminal history score of seven, Tanner was in Category IV. Decreasing Tanner’s score by one point, however, puts him in Category III. See U.S.S.G. ch. 5, Sentencing Table. That category, when combined with an offense level of 22, results in a range of 51-63 months instead of 63-78. The new baseline must provide the starting point for Tanner’s sentence.

A final point deserves brief mention. The applicability of § 4Al.l(e) does not turn on whether the conduct underlying Case No. 081793 occurred in a single episode or on the same day. As that provision allows for the addition of points to a defendant’s criminal history score based on pri- or sentences, not offenses, see United States v. Scott, 654 F.3d 552, 556-57 (5th Cir.2011), the relevant question is whether Tanner received multiple sentences. The record strongly suggests that only one sentence was entered in Case No' 081793.

II.

Tanner’s other claim of procedural error, on the other hand, does not warrant relief. Because the evidence supported a finding that Tanner was a leader and an organizer of the bank fraud, a two-level enhancement for Tanner’s role was proper. The Guidelines provision at issue allows for a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” other than the activity described in other subsections of that section. U.S.S.G. § 3Bl.l(c). In holding that Tanner’s conduct warranted the enhancement, the district court reasoned:

But I think decidedly, Mr. Tanner, your admitted behavior was that of either or both an organizer or leader, minimally. I think relative even to Ms. Becker, whose culpability is less than your own, who was not involved until she was invited in by you, who was led by you, so that certainly qualifies you as a leader.
But then the organizer component. ...
There is no way, and I think you can agree with this, that you could have maintained or obtained possession of the Fitzroy property and the home equity lines without organizing the activity of those who were unindicted but involved and also Ms. Becker, at a minimum.

Later in the sentencing proceeding, the district court also rejected the idea that the real estate agent duped Tanner into participating in the fraud, noting that Tanner was intelligent- and articulate. Review of the district court’s factual findings supporting this enhancement is limited to clear error. See United States v. Wilson, 630 Fed.Appx. 422, 431 (6th Cir.2015) (citing United States v. Washington, 715 F.3d 975, 982-83 (6th Cir.2013)).

The record supported these findings. The primary question for a § 3Bl.l(c) enhancement is whether the defendant exerted control over at least one individual within a criminal organization. See United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir.2000). Factors relevant to control 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, [and] the degree of participation in planning or organizing-the offense.” United States v. Salyers, 592 Fed.Appx. 483, 485 (6th Cir. 2015) (quoting U.S.S.G. § 3B1.1 cmt. n.4). The control criterion is satisfied by virtue of Tanner’s relationship to Becker. As an initial matter, Tanner recruited Becker to be a straw buyer for the Fitzroy house. Because no evidence suggests that Becker would have become involved in the scheme without Tanner, he served as the link between Becker and the unindieted co-conspirators. As thé district court found, that Tanner was involved in the scheme before Becker and used her name to buy the house thus strongly supports the notion that he was a leader of the conspiracy. So does the fact that Tanner — not Becker— lived in the multi-million dollar house for four years. Still more, Tanner organized the scheme by telling First Bank that Becker worked for his company and that she earned -a salary well into the six figures. Moreover, it was Becker’s name that Tanner used to obtain $600,000 in' home-equity loans. Finally, the plea transcript suggests that Tanner moved funds in and out of Becker’s bank account at will after the home-equity loans were deposited. This, too, indicates control. In short, Tanner acted as more than a mere foot soldier by coordinating the fraudulent mortgage and by cashing in on- the false equity created by the sale of the house. That is enough to warrant application of § 3B1.1.

Tanner counters by arguing that he did not recruit Becker and that the record does not indicate that he obtained more proceeds than Becker, but neither point requires a different conclusion. First, it is appropriate to characterize as “recruitment” Tanner’s acts of inviting Becker to participate in the scheme, using Becker as a straw buyer for the house, and using Becker’s information for the home-equity-loan applications. Our decision in Vandeberg, 201 F.3d 805 (6th Cir.2000), is not to the contrary, as there is a world of difference between that case and this one. In Vandeberg, not only did the prosecutor agree with the defendant that the role enhancement did not apply, see id. at 811, but the defendant’s participation in the conspiracy consisted primarily of providing information to a co-conspirator that facilitated the co-conspirator’s burglary of a house, see id. at 808, 811. The defendant did not physically participate in the burglary. Id. at 808. Nor did any evidence suggest that the defendant recruited the co-conspirator or initiated the criminal activity. Id. at 811. Tanner bears little resemblance to the defendant in Vandeberg, because Tanner was directly responsible for Becker’s involvement and his participation in the bank fraud was , hands-on.

Second, as. for the division of the spoils of the fraud, the record supports the inference that Tanner obtained more proceeds than Becker. Tanner lived for four years in a house worth far north of a million dollars. In addition, the plea transcript indicates that Tanner transferred large amounts of the loan proceeds into his own account. Tanner’s sentencing memorandum also admitted that “Tanner received the larger share of the equity” from the lines of credit. Even if the evidence regarding Tanner’s proceeds were not as strong, the touchstone “control” requirement-is nonetheless satisfied by Tanner’s recruitment of Becker, his planning of the fraud, and his use of Becker to perpetrate the offense. At bottom, Tanner’s quarrel with the role enhancement is that he did not come up with the idea to commit bank fraud. Yet a conspirator in a fraud scheme may be a leader or organizer even if the fraud was not his brainchild. The district court’s findings on this enhancement were not clearly erroneous.

III.

Although Tanner also asserts several claims of ineffective assistance of counsel, now is not the time to bring those claims. This is a direct appeal. The general rule is that ineffective-assistance claims cannot be brought on direct appeal, see United States v. Martinez, 430 F.3d 317, 338 (6th Cir.2005) (citation omitted), and this case is no exception. In any event, those claims — which' relate solely to sentencing — are mooted by the conclusion that resentencing is necessary.

The judgment of the district court is vacated, and the case is remanded for proceedings consistent with this opinion.

      . The five remaining criminal history points were attributable to three sentences in unrelated matters, as well as the fact thát Tanner committed the bank fraud while serving two of those sentences.

      . As child endangerment is not a crime of violence, we need not determine whether that offense is an allied offense as well.


author: ROGERS, Circuit Judge.

text:
    David Alan SMITH, Plaintiff-Appellee/Cross-Appellant, v. LEXISNEXIS SCREENING SOLUTIONS, INC., Defendant-Appellant/Cross-Appellee.
    Nos. 15-2329/2330
    United States Court of Appeals, Sixth Circuit.
    Argued: June 14, 2016
    Decided and Filed: September 13, 2016

      ARGUED: Thomas J. Piskorski, Sey-farth Shaw LLP, Chicago, Illinois, for Appellant/Cross-Appellee. James A. Francis, Francis & Mailman, P.C., Philadelphia, Pennsylvania, for Appellee/Cross-Appel-lant. ON BRIEF: Thomas J. Piskorski, Frederick T. Smith, Kara L. Goodwin, Seyfarth Shaw LLP, Chicago, Illinois, for AppellanVCross-Appellee. John Soumilas, Francis & Mailman, P.C., Philadelphia, Pennsylvania, Ian B. Lyngklip, Lyngklip & Associates Consumer Law Center, PLC, Southfield, Michigan, for Appellee/Cross-Appellant. Alan Butler, Electronic Privacy Information Center, Washington, D.C., for Amicus Curiae.
    Before: SILER, ROGERS, and SUTTON, Circuit Judges.
   OPINION

ROGERS, Circuit Judge.

Great Lakes Wine and Spirits contracted with LexisNexis to carry out criminal history checks for employment applicants. Great Lakes provided Lexis with David Alan Smith’s date of birth but not his middle name. Lexis’s check returned a fraud conviction of a man named David Oscar Smith, resulting in six weeks’ delay in David Alan Smith’s being hired. Lexis had requested, but' not required, the input of a middle name, and did not cross-reference the criminal history report with a credit report that showed Smith’s middle initial. Smith sued under the Fair Credit Reporting Act (FCRA). Following a jury trial, the court awarded Smith $75,000 in compensatory damages for six weeks of lost wages, emotional distress, and harm to his reputation, plus $150,000 in punitive damages. Both parties appeal. Although a reasonable jury could conclude that Lexis negligently violated the FCRA by not requiring Smith’s middle name, there is not sufficient evidence of willfulness to support punitive damages. A partial reversal is accordingly required.

David Alan Smith’s employer, Tasson Distributing, was sold to Great Lakes Wine and Spirits in 2012. Former Tasson employees were not guaranteed a position with Great Lakes. Each employee had to apply for a Great Lakes job. Smith applied for the position of delivery driver, the same position he held at Tasson.

Great Lakes sent Smith an email less than a week later offering him a full-time merchandiser position instead of his desired job. The merchandiser position paid $11 per hour, which was $5 less per hour than he made as a delivery driver at Tas-son. The employment' offer stated that “[cjontinued employment, subsequent to this offer, is conditional based upon your satisfactory completion of a ... credit check ... and criminal, history check.” Smith, authorizing the checks, provided Great Lakes with his first, middle, and last name, Social Security number, driver’s license number, date of birth, sex, .street address, and phone number. ■

Great Lakes contracted with LexisNexis Screening Solutions to complete the checks. Neither party disputes that Lexis is a consumer reporting agency (CRA) as defined by the FCRA. When Lexis received Smith’s credit report from Equifax, the report listed his name as “David A. Smith.” For the criminal history check, Great Lakes wanted Lexis to perform a database report, for which Lexis searches its database that contains raw criminal data from court systems and other government agencies.

In conducting a database search, Lexis inputs the information provided to it by the customer — in this case, Great Lakes. Lexis required Great Lakes to provide, per its standard procedure: Smith’s first name, last name, and date of birth. Lexis will only include a criminal record on a criminal background report if the record matches all three of these pieces of information. Lexis also had fields in its order form for Smith’s middle name and Social Security number, but Lexis did not require this information. Great Lakes did not provide Smith’s middle name to Lexis but did provide Smith’s Social Security number. There was evidence suggesting that Lexis’s processes and procedures for running the criminal history check meet or exceed industry standards.

At the time of Smith’s criminal history check, Lexis ran and sold roughly 10 million criminal background reports a year. Lexis tracks the overall dispute rate for its criminal background reports. Lexis’s data shows that 99.8% of its reports are never disputed, which means that the dispute rate is only .2%. This .2%'rate includes database searches like the one Lexis conducted on Smith for Great Lakes.

' Lexis searched its database for criminal records that matched Smith’s first name, last name, and date of birth. The search returned two sources — Bay County, Florida Circuit and County Courts, and the Florida Department of Corrections — as having criminal records for a David Smith born on March 12, 1965. This, however, was David Oscar Smith, not the David Alan Smith who applied for the job with Great Lakes. The records were for David Oscar Smith’s uttering a forged instrument. Because Lexis did not receive a middle name from Great Lakes, it could not exclude the middle name “Oscar” from the results. The criminal records did not contain a Social Security number, so Lexis could not exclude them on that basis. Because the criminal records matched Smith’s first name, last name, and date of birth, Lexis included them in the report it provided to Great Lakes.

About December 17, 2012, Smith received a letter from Great Lakes stating that it was rejecting his application for employment. The letter stated that the action was “influenced by information in a consumer report” made by Lexis at the request of Great Lakes, but that Lexis “did not make the adverse decision and cannot provide the reason for the decision.” The letter included a copy of the background report. Although Vicki Straw-sine, the Human Resources Director for Great Lakes, was suspicious of the report, she did not hire Smith and believed that it was his responsibility to contact Lexis in order -to correct the report before Great Lakes would hire him.

The same day that Smith saw the letter and the attached report, Smith contacted Great Lakes to state that the information in the report was incorrect. Great Lakes directed him to Lexis to dispute inaccuracies. Smith then contacted Lexis and faxed Lexis his driver’s license so that Lexis could conduct a proper investigation into the inaccuracies. Lexis sent Smith a letter on January 11, 2013, stating that the investigation had concluded and the disputed criminal history had been removed. The letter also stated that Lexis sent Great Lakes a copy of the corrected report. On January 29th, six weeks after receiving the initial letter from Great Lakes revoking his employment offer, Smith began working for Great Lakes -as a delivery driver.

Smith’s lost wages for the job of merchandiser during this period allegedly amounted to' $2,640. With Smith and his wife’s financial situation already unsteady, his lack' of employment during the six-week stretch caused them to fall on hard times. Smith stated that he was “down in the dumps,” “depressed,” and ■ did not know how he was going to make a living. He did not seek medical treatment for these negative feelings. He also claimed that the owner of a party store at one point referred to Smith in a jocular manner as the owner’s “favorite felon.”

The testimony of Smith’s wife corroborated Smith’s downward turn in mood during the six-week period. She testified that Smith was “a bit angry about not being able to pay the bills, ... short with [her], ... [and] depressed that he couldn’t provide for his family.” She said that the struggle to make ends meet financially was the main reason why Smith was stressed during the time he was unemployed. When Smith and his wife were both employed, they brought home “just enough” money after taxes to pay their monthly bills, Without Smith’s income stream, the couple went into the red. In order to pay the bills during the six-week period, Smith had to borrow money from his parents and his sister, an action that left him feeling “ashamed.”

Smith filed suit against Lexis, asserting that Lexis violated 15 U.S.C. § 1681e(b), part of the FCRA, by failing to follow reasonable procedures that would assure maximum possible accuracy in the information it reported to Great Lakes. The case proceeded to a jury trial. Lexis made an oral motion for judgment as a matter of law .pursuant to Fed. R. Civ. P,. 50(a). The district court took Lexis’s motion under advisement and submitted the case to the jury. The jury found in Smith’s favor, finding that Lexis both negligently and willfully violated the FCRA provision, and awarded Smith $75,000 in compensatory damages as well as $300,000 in punitive damages. The district court then denied Lexis’s motion for judgment as a matter of law after requiring supplemental briefing. Smith v. LexisNexis Screening Solutions, Inc., 76 F.Supp.3d 651, 653, 657 (E.D.Mich. 2014) (order denying motion for a judgment as a matter of law).

After the court denied the initial motion, Lexis filed a renewed motion for-judgment as a matter of law or, in the alternative, for a new trial and/or remittitur. The district court denied the renewed motion for judgment as a matter of law. Smith v. LexisNexis Screening Solutions, Inc., 138 F.Supp.3d 872, 877 (E.D.Mich.2015) (order denying renewed motion for a judgment as a matter of law). The court held that there was sufficient evidence from which a reasonable jury could conclude that Lexis’s failure to require a middle name and its failure to cross-reference the credit report, which contained Smith’s middle initial, with the criminal records were both negligent and willful violations of the FCRA provision. See id. at 879-82. The district court also held that there was sufficient evidence of economic loss and emotional distress to submit the claim to the jury. Id. at 887-89. Thus, the court denied in full Lexis’s renewed motion for judgment as a matter of law.

The district court denied in part and granted in part Lexis’s motion for a new trial and/or remittitur. The court reiterated its analysis regarding the sufficiency of the evidence and held that it also supported a denial of the, motion for a new trial, because the jury’s verdict was not “against the weight of the evidence.” Id. at 890. Also, Lexis did not meet its burden of showing that mistakes were made during trial that warranted a new trial. Id. at 899. However, on the issue of remittitur, the court granted the motion and reduced the punitive damages to $150,000. Id. at 888— 98. The court first stated that the award of $75,000 for compensatory damages, although possibly sitting “on the high end of what would be appropriate,” did not warrant remittitur, because it did not shock the court’s conscience or differ too greatly from awards that other courts in analogous cases had deemed appropriate. Id. at 893. The court then analyzed whether the award of $300,000 for punitive damages was excessive, and the court concluded that it was. Id. at 898. According to the court, because Lexis’s conduct in this case was not very reprehensible, and because the highest constitutional ratio of compensatory damages to punitive damages was 2:1 in this case, the punitive damages award had to be reduced to $150,000. Id. at 895-96.

Lexis appeals and argues that there is no evidence from which a reasonable jury could conclude that Lexis either negligently or willfully violated the FCRA. Lexis also argues that the evidence does not support the awards of compensatory or punitive damages. Smith appeals the district court’s decision to reduce the punitive damages to $150,000, arguing that Lexis’s conduct was sufficiently, reprehensible and that, the 4:1 ratio between the jury’s awards for .compensatory and punitive damages was constitutionally appropriate. Because there is sufficient evidence of negligence but not of willfulness, only compensatory but not punitive damages were appropriate in this case.

Although it is a close call, the evidence in the record was sufficient to support the jury’s finding of negligence. Lexis required Smith’s birthdate in addition to his first and last name, and this additional requirement certainly lowered the possibility of a false positive. Lexis also has a policy of using Social Security numbers— when provided — to further lower that possibility. Further, Lexis points to the fact that this was a single mix-up corrected shortly after Smith made Lexis aware of it and argues that its .2% dispute rate is evidence that the risk of this inaccuracy’s occurrence was close to non-existent. But the relevant statutory language and Smith’s particular situation cut against Lexis. 15 U.S.C. § 1681e(b) mandates that CRAs “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” “David Smith” is an exceedingly common first- and-last-name combination — to the tune of over 125,000 individuals living in the United States. The jury could conclude that a reasonably prudent CRA, when presented with such a common name, would have required additional identifying information — like a middle name — to heighten the accuracy of its reports. The fact that requiring a middle name is an inarguably reasonable procedure' (considering Lexis already had a field for middle names on the form that Great Lakes filled out) is what tips the scales against Lexis. Moreover, because the Florida' criminal records for David Oscar Smith did not contain a Social Security number, Lexis’s use of Smith’s Social Security number would not have helped. Thus, although there is evidence that Lexis attempted to ensure that its reports produced a very low rate of false positives, there is sufficient record evidence supporting the jury’s conclusion that Lexis’s failure to require a middle name constituted negligence.

The discrepancy between the credit report from Equifax, which named “David A. Smith,” and the criminal records, which named “David Oscar Smith,” provides a little additional weight in Smith’s favor. At the time Lexis provided the report to Great Lakes, Lexis had within its possession a credit report from Equifax that named “David A. Smith” as the subject. Lexis could have cross-referenced this name with the- name on the criminal records, which was “David Oscar Smith.” A failure to cross-reference such information, standing alone, might not have any bearing on whether a CRA’s actions were reasonable. See Sarver v. Experian Info. Sols., 390 F.3d 969, 972 (7th Cir.2004). In this case, however, the fact that Lexis possessed a report with Smith’s middle initial serves as additional evidence supporting the jury’s finding as to negligence.

Although the jury could find that Lexis was negligent in compiling Smith’s report, that is a far cry from being willful. In order to willfully violate the FCRA, a CRA’s action must entail “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (internal quotation marks and citation omitted). According to Smith, the risk of which Lexis should have known was that failing to require a middle name before it ran a report would not “assure maximum possible accuracy” as required by the FCRA. This argument, however, fails to acknowledge Lexis’s efforts to combat inaccuracies: requiring an individual’s first name, last name, and birthdate, and also— when provided — using a middle name and Social Security number. These procedures have kept Lexis’s dispute rate at just .2%, which is remarkably low. Furthermore, a single inaccuracy, without more, does not constitute a willful violation of the FCRA. See Nelski v. Trans Union, LLC, 86 Fed.Appx. 840, 844 (6th Cir.2004). Although this inaccuracy might have resulted from Lexis’s carelessness, it did not result from Lexis’s disregarding a high risk of harm of which it should have known. The district court thus should have granted judgment as a matter of law with respect to the willfulness claim.

Dalton v. Capital Associated Industries, Inc., 257 F.3d 409 (4th Cir.2001), buttresses this conclusion. In that case, a CRA conducted a criminal history check and reported that the plaintiff had been convicted of a felony. Id. at 413. As a result, the plaintiffs prospective employer withdrew its offer of employment. Id. In analyzing the plaintiffs FCRA claim against the CRA, the Fourth Circuit stated that no reasonable jury could conclude that the CRA acted willfully. Id. at 418. The record, according to the court, lacked any evidence of willfulness: there was no evidence that other individuals had lodged complaints similar to the plaintiffs, the CRA’s track record with its procedures had been reliable, and the CRA corrected its mistake shortly after the plaintiff challenged the accuracy of the report. Id. The Fourth Circuit also held that, despite these facts, a reasonable jury could conclude that the CRA acted negligently. Id. The same is true in this case. Smith has presented no evidence that anyone had lodged similar complaints against Lexis. Further, Lexis’s low dispute rate showed that its procedures had been generally reliable. Finally, Lexis corrected the mistake not long after Smith complained — there was no protracted process before the record was set straight. The facts of the present case therefore line up neatly with the facts in Dalton, and Dalton supports the conclusion that Lexis negligently- — but not willfully — violated the FCRA.

Regarding damages, the record evidence is sufficient to support the jury’s award of compensatory damages. Smith and his wife testified that Smith was depressed, angry; stressed, and “down in the dumps” due to their financial woes when he was unemployed. Smith testified that he had to borrow money from family members to make ends meet, which made him feel “ashamed.” Smith further testified that the owner of a party store in town jokingly called Smith his “favorite felon,” a comment that a reasonable jury could conclude caused embarrassment and anger. Plaintiffs are required to allege more than “mere conclusory statements” and must “reasonably and sufficiently explain[] the circumstances” surrounding their emotional injuries. Bach v. First Union Nat’l Bank, 149 Fed.Appx. 354, 361 (6th Cir. 2005). Lexis argues that Smith’s and his wife’s testimony is merely conclusory and is not sufficient to warrant an award for emotional distress. Smith’s and his wife’s statements, however, are extensive. They describe his shame, anger, and stress that stemmed from financial hardships. This situation, and particularly the financial hardships involved in it, is one with which reasonable jurors could identify and infer that a reasonable person in the same situation would suffer emotional distress. In Wantz v. Experian Information Solutions, 386 F.3d 829, 834 (7th Cir.2004), abrogated on other grounds by Burr, 551 U.S. 47, 127 S.Ct. 2201, 167 L.Ed.2d 1045, the Seventh Circuit preserved the possibility of mental distress damages where “the facts are so inherently degrading that a jury could infer ... emotional distress.” Here, Smith elicited enough evidence for a reasonable jury to conclude that he suffered emotional distress and was accordingly due damages.

The district court did not err in denying Lexis’s motion to remit the award of $75,000 in compensatory damages. That amount was not too far afield from awards in similar cases. Smith’s alleged lost wages amounted to $2,640, which means that the remaining non-economic damages totaled at least $72,360. The jury did not allocate the amount of damages among lost wages, emotional distress, and harm to reputation. Smith v. LexisNexis Screening Solutions, Inc., 138 F.Supp.3d 872, 890-91 (E.D.Mich. 2015) (order denying renewed motion for a judgment as a matter of law). Lexis argues that the $72,360 amount is clearly excessive in light of other, similar cases. Lexis breaks down the awards in the other cases into per-weék amounts and multiplies those amounts by the four weeks it took Lexis to correct Smith’s credit report in order to demonstrate the excessiveness of the award in this case. Although the $72,360 might be a higher per-week amount than the awards in many of the cases Lexis cites, juries are not required to award compensatory damages based only on the temporal extent of suffering. Furthermore, as stated above, there was ample record evidence of Smith’s distress. A district court is allowed to interfere with a jury’s award “only when, after reviewing all the evidence in the light most favorable to the prevailing party, [the court] is convinced that the verdict is clearly excessive; resulted from passion, bias, or prejudice; or is so excessive or inadequate as to shock the conscience of the court.” Am. Trim., L.L.C. v. Oracle Corp., 383 F.3d 462, 475 (6th Cir.2004). This is a very deferential standard, as juries have broad discretion to set damages amounts. The severity and the extent of Smith’s woes, viewed through an appropriately deferential lens, demonstrate that the district court’s denial of Lexis’s motion to remit the $75,000 award was not in error.

Punitive damages, however, are not appropriate in this case. The FCRA provides for an award of punitive damages only for willful violations of the statute. 15 U.S.C. § 1681n(a)(2); see also Bach, 149 Fed.Appx. at 364. Because the record contains no evidence of willfulness, the award of punitive damages cannot stand.

The district court’s judgment is accordingly reversed regarding willfulness and punitive damages, and the judgment is affirmed on all other grounds. The case is remanded for entry of an order consistent with this opinion.

      . The court analyzed the distinction between claims that punitive damages are constitutionally excessive and claims for remittitur. Id. at 896-98, Because Lexis argued that the punitive-damages award was constitutionally excessive, the court tailored its relief to that claim.

      . In fact, Lexis's FCRA violation was the but-for cause of Smith's unemployment for six weeks, not four.