*1 the circum- was committed. Under do not ex offense pre-1993 Guidelines That the stances, challenge to his post counting the ex under double pressly prohibit facto fail. sentence must disputed. be § § cannot 2B1.1 and 3B1.1 inadvertent, was not The omission accordingly Harris’ sentence is leading plan and recognized that generally AFFIRMED. aspects crim ning a crime are two distinct conduct, may treated as such for be inal Godfrey, 25 F.3d
sentencing purposes. See Smith, 281; Mandilakis, 264; at 23 F.3d
at 671-72; 1429; Wong, F.3d át
13 F.3d at Willis, 60-61; 999 F.2d at
Rappaport, 705; 418-19; Kelly, F.2d at Cur
F.2d at Boula, tis, 556-57; at 932 F.2d F.2d at MLSNA, Plaintiff-Appellee, 654-55. Eileen D. re that Harris The record reveals v. enhance “organizer or leader” ceived the COMMUNICATIONS, INC., UNITEL the crime was his idea ment because Party/Plaintiff- Defendant-Third accomplices to assist because he recruited Appellant, He of the crime.1 him in the commission planning” minimal the “more than
received sought assistance to because he enhancement MLSNA, M. Third weeks before it was the crime two commit Party/Defendant- committed; gate key to the sur obtained Appellee. lot; company chose a rounding trucking No. 94-1477. there would be the crime when time for meaning activity, less likeli minimal business Appeals, United States Court detection; transporta provided hood of Circuit. Seventh detection; tion; gloves to avoid wore Argued Sept. 1994. trips location to steal repeated made supplied thus equipment. The district court Decided Nov. enhancing Har a sufficient factual basis Rehearing Denied Jan. 1995.* § 2B1.1 ris’ sentence under both may overlap in findings That 3B1.1. respects persuade us differ some Haines, 293-94
ently. 32 F.3d at
(“[E]ven overlap in the factu there is some sentencing adjust two or more
al basis for
ments, long factual so as there is sufficient they may applied.”);
basis for each both (use
Curtis, F.2d at 556-57 of accom just upon in
plices was one element relied planning;
finding more than minimal defen more actions would have amounted to
dant’s planning minimal without involvement
than accomplices). clearly demon- preceding
As the discussion
strates, would have been Harris’ sentence ap- if the district court had same even at the time the
plied the effect Guidelines * petition Judge Cudahy grant challenge voted to the factual basis for 1. Harris does not under U.S.S.G. 3B1.1 for be- rehearing. the enhancement ing organizer or leader.
H25 *3 IL, (argued), Naperville, Denice A. Gieraeh plaintiff-appellee. Maguire (argued), Gregory Paula K. A. Friedman, Sr., Holtz, Chicago, Friedman & IL, defendant-appellant. FLAUM,
Before CUDAHY Circuit GRANT,** Judges, Judge. District FLAUM, Judge. Circuit (“Eileen”) Eileen against Mlsna filed suit (“Unitel”) Communications, alleg- Unitel Inc. ing that it violated the Consolidated Omnibus (“CO- Budget Act of 1986 Reconciliation BRA”), 1161-68, §§ by failing her with notice of her to elect coverage through continuation group Unitel’s husband, health after her Theodore (“Theodore”), resigned Mlsna from the com- pany. it did Unitel asserted not owe any notice or continuation because it had fired Theodore conduct, pay and that it did not have to Eileen’s medical bills because of her subse- quent addition, In actions. Unitel filed a third-party Theodore, complaint against al- leging liability that might the court find was due to actions. The his willful district granted summary judgment court for Eileen and Theodore. 825 862. We re- summary verse the award of judg- court’s ment to affirm its Eileen and award of sum- mary judgment to Theodore.
I. Theodore Mlsna worked as Unitel’s Con- February, troller January, 23, 1989, January 1989. On Theodore ten- his resignation dered with one week’s notice (“Mallín”), President, Paul Mallín Unitel’s ** Grant, by designation. The Robert A. Senior District Honorable Indiana, Judge sitting District of for the Northern
H27
leaving
pay
third-party
to work in
them. Unitel also filed a
saying that he was
Theodore,
canning
day
complaint against
alleging
family
business. The actual
he
failure,
departure,
remains in was liable to Eileen for his
Theodore’s
Con-
troller,
deposition
Theodore testified
to send her
dispute.
his
COBRA
before he
parties
Mallín told him to leave the office imme-
left Unitel’s
All
moved for
did, effectively
summary
diately,
judgment.
end-
which
day
employment with Unitel the same
his
The district court held that Theodore’s
resignation.
Mallín con-
that he tendered
tender of his
with notice consti
affidavit, saying
story in his
he
tradicts this
triggered
tuted a
event that
Uni-
25, 1989,
January
upon
on
fired Theodore
granted
tel’s duties under COBRA. It
Theo
compet-
learning that Theodore had formed a
summary judgment
dore’s motion for
in its
*4
business, Corporate Systems
of America
entirety, denied Unitel’s motion in its entire
(“CSA”),
employees
and had solicited Unitel
ty,
granted
Eileen’s motion as to liabili
and customers for CSA.
Communications, Inc.,
ty. Mlsna v. Unitel
(N.D.Ill.1993).
The court
Unitel,
employed by
Theodore
While
ordered Unitel to reimburse Eileen for medi
family
medical
insurance
received
during
cal costs
incurred
the time
she
she
through
employee group
plan.
health
Unitel’s
eligible
would have been
for continuation cov
never sent notice to the Mlsnas about
erage
plan.
under its
The court also im
right
coverage
to continue this
after
their
posed
statutory
per
on Unitel a
fine of
3,1989,
$10
left its
On March
Theodore
$15,740,
day, for a total of
and awarded
applied
through
Eileen
for medical insurance
attorney’s fees and costs to the Mlsnas in
carrier,
In-
CSA and its
Pan-American Life
$22,523.93.
appeal
amount of
This
followed.
Company.
application
On the
surance
stated that she had not received medical
II.
months,
treatment in the last 12
when in fact
problems
she had been treated for health
as
grant
We review district court’s
recently
January,
as
1989. Eileen subse-
summary judgment
of
de novo. Karazanos
coverage
quently
through
obtained
National
Transportation
v. Navistar
International
(“NIS”),
Insurance Services
a Pan-American
Cir.1991).
(7th
Corp., 948 F.2d
Like
June, 1989,
subsidiary.
surgery
She had
court,
record,
the district
we must review the
significant
and incurred
medical bills over
and all reasonable
can
inferences which
doing
months.
a rou-
the next several
While
it,
light
drawn from in the
most favorable to
paying
expenses,
tine check before
for these
non-moving party.
Liberty
Anderson v.
NIS realized that Eileen had made material
Inc.,
242, 255,106
Lobby,
S.Ct.
U.S.
misrepresentations
application.
on her
NIS
(1986).
2513-14,
Summary
91 L.Edüd
coverage
consequently rescinded her
retroac-
judgment
appropriate
plead
“the
where
time,
tively. During this
Eileen did not sub-
ings, depositions,
interrogatories,
answers to
any
mit
of these claims to Unitel’s
file, together with the
and admissions on
payment.
affidavits,
any,
genu
that there is no
show
fact
that
ine issue as to
material
insurance,
Left without health
Eileen filed
moving party
judgment as a
is entitled to a
Unitel,
asserting
plan’s
this suit
that
as its
56(c).
matter of law.” Fed.R.Civ.P.
administrator,
had
failed
her
right
coverage
her
to continue her medical
A.
through
plan,
required by
its
as
COBRA.
administrators,
primary
requires plan
that
such
Unitel raised three
defenses:
COBRA
Unitel,
triggered
duty
as
continued health insur-
event had
coverage
employees
ance
to covered
send the notice because
had fired Theodore
misconduct,
right
qualified
their
beneficiaries and to
Eileen’s
coverage upon
coverage
continued
had ended when she ob-
them of the
to elect such
NIS,
“qualifying
Ei-
event.” 29
through
tained insurance
and that
the occurrence of a
“quali-
leen’s failure to submit her claims to Unitel U.S.C.
1161. The statute defines
“any
timely
fying
part
of the
in a
fashion had relieved it of its
event”
relevant
which,
employment relationship
continua-
interim the
contin-
following events
but
required
part,
ultimately
would
coverage
Only
under
tion
ues.
when
qualified
loss of
of a
result
company, or has his hours reduced
leaves the
(2)
(other
beneficiary:
...
The termination
point
losing coverage,
quali-
does a
employee’s gross
of such
than
reason
occur, thereby triggering the ad-
fying event
hours,
misconduct),
or reduction
ministrator’s duties under COBRA.1
employee’s employment.” 29 U.S.C.
covered
Eileen,
spouse, is a
§ 1163.
as Theodore’s
that Theodore’s tender of his
Given
beneficiary.
U.S.C.
with notice was not a
1167(3)(A)(i).
event,
district court must determine
circumstances,
when,
Theo
and under what
that Theo
The district court held
dore left Unitel and whether a
resignation with notice
dore’s tender of his
regardless qualifying event
testified in a de
constituted a
event occurred. Theodore
actually stopped working for Uni-
whether he
position
him
that Mallín told
to leave the
day
January
or on
tel on
same
day
resignation,
same
he tendered his
while
him for
miscon
allegedly
Mallín
fired
in an
Mallín swore
affidavit
duct. The definition
working
continued
until Mallín fired him on
resignations
says nothing about
January
may
25. Because the actual date
*5
Instead,
qualify
that a
with notice.
it states
occurred,
qualifying
a
affect whether
event
at the “termination” of an
event occurs
conflicting testimony gives
we find that this
relationship.
employment
U.S.C.
genuine
rise to a
issue of material fact. The
1163(2).
a
§
read this to mean that
We
may
district court
also have to determine
employ
place
takes
when an
event
gross
whether Theodore committed
miscond
employer,
actually stops working for an
ee
uct.2
gives notice of his intention to
not when he
By holding
resignation
that a
with notice
Sometimes, as under the scenario
do so.
may
a
does not constitute
event we
Theodore,
by
happens
this
simul
recounted
easy way
times,
appear
giving employers
to be
an
employee may
taneously.
an
Other
weeks,
prior
to rid themselves of their COBRA duties:
give days,
or even months
no
tice,
employer
accept.
accept
employee’s
an
notice of
which an
will
the
notify
reading of the statute does not conflict
that Unitel had no
to
the Mlsnas or to
1. This
v,
analysis
in Gaskell Harvard
coverage
with the
contained
extend continuation
to them. An em-
(1st Cir.1993).
Co-Op Society,
provide promulgation Eileen with continuation regulations, employers are required operate obtained good compliance did not end when she other cover- to faith age. argues interpretation that it with a Unitel also does not have reasonable of these sub- rules, requirements, to reimburse Eileen’s medical costs stantive because etc.” H.R.Rep. 453, Cong., she did not submit her claims Unitel with- 99th 1st 563 Sess. No. (1985). occurrence, days in 20 required by Rodriguez-Arbreu of their v. Chase Bank, N.A., plan. 580, agree the terms of its We with the Manhattan 986 F.2d (1st Cir.1993) (bad recovery district court that Eileen’s cannot faith is a factor to consid- discretion); deficiency. be denied for this in exercising After Theo- er Van Hoove v. Maintenance, Inc., employment Bldg. dore terminated his with Unitel Mid-America (D.Kan.1993) (not plan longer F.Supp. its no impos- covered Eileen. She had claims, duty plan submit which she would fine because found administrator paid, faith); good have assumed would not be to a had acted in Paris v. F. Korbel Bros., Inc., (N.D.Cal. longer belonged. which she no & 1990) (good mitigating faith is a factor fine). determining daily C. the amount of the filing third-party In complaint addition, the district court should Theodore, against alleged attorney’s base its award of fees and costs on “ part failure on its Eileen with ‘losing party’s position whether the [was] COBRA notice was due to Theodore’s willful justified substantially good and taken in doing misconduct in not so before he left faith, party simply or was that out to harass appears Unitel’s While it that Theo opponent.’” Local v. Roadmaster sending dore’s duties at Unitel included out (7th Cir.1992) Corp., 954 F.2d already COBRA notices we have held that (quoting Meredith v. Navistar International with notice did not constitute (7th 124, 128 Transportation Corp., 935 F.2d only event. That would have Cir.1991)). occurred when stopped working reasons, foregoing For the this case is Unitel, after which time he had no to do part, part, reversed in affirmed in vacated in anything company. for the The district part and remanded. court, therefore, granted properly Theodore’s summary judgment. motion for *7 CUDAHY, Judge, concurring Circuit in part dissenting part: and in
D. majority’s If the conclusions about the fra Finally, the district court ordered gility of Eileen’s medical are cor pay statutory per day Unitel to a fine of $10 rect, there is indeed a health care crisis. for its failure to Eileen notice of her Despite points recog COBRA’s numerous of COBRA, rights under for a total fine of nition non-employee spouse enjoys that a $15,740. light of our decision that Theo rights quite independent of of those her em resignation dore’s with notice did not consti ployee spouse, majority the a somehow finds qualifying tute a we must vacate this statutory “plain meaning” contrary. attorney’s award and the court’s award of majority purport And nowhere does the to If, remand, fees and costs. on the district construe apply equi COBRA to “take care to court concludes that Unitel did not fire Theo principles table [to] fashion remedies to gross dore for misconduct so that it owed injured parties make whole.” Swint v. Pro Eileen coverage, notice and continuation the Co., tective F.Supp. Ins. 779 532 Life court will have the impose discretion to an (S.D.Ala.1991) (quoting Ingersoll-Rand other fine In exercising and fees. that dis McClendon, 478, 498 111 U.S. S.Ct. cretion the court should take into consider (1990)). L.Ed.2d presence ation good the or absence of faith part putting gross on Unitel’s in forth the eminently The district court was correct in Congress misconduct defense. did not saying Congress define that enacted COBRA to “gross “pending “protect spouses misconduct” but stated that dependents employ- of suming spouse’s legal rights losing health cover a into those of abruptly care
ees appears her husband.1 noting “[i]t unrea age” and employee of the could that the action sonable provision punitive The misc0nduct is protection spouse. of the COBRA the excuse anc¡ ought interpreted narrowly. to The Communications, Inc., 825 Mlsna v. Unitel intended, base, denial of to benefits at (N.D.Ill.1993). the ma F.Supp. Yet employee deter misconduct. Burke v. in its jority completely ignores these factors Plan, Employee American Stores Benefits very a solution a adoption of formalistic to (N.D.Ill.1993). It problem. real employ therefore makes little sense for an spouse ee’s misconduct be attributed to his (i.e. “plain language” termi- The statute’s (and dependents) deny purpose the of —for gross “qualify- misconduct is a nation ing coverage, things. of After insurance all obligation) a notice triggering event” all, hardly dealing we with are some windfall a not determine whether Unitel had does no reliance benefit to which interest attaches. Mlsna, notify non-employ- duty to the Instead, tamper we with health care cover spouses spouse. The statute conceives of ee' age, subject producing great a apprehension right. surprising- Not people their own as many Americans. therefore, independent ly, provides no- unnecessarily majority’s opinion § The spouses. U.S.C. also tice covered no- confuses states An administrator must “written cause The statute effect. employee spouse that “termination” is a event. tice to each covered occurs, surely, stops an employee” employee the time of This the at commencement 1166(a)(1). working. gross provision, § coverage. 29 This The misconduct U.S.C. given the again must be afforded the oc- looks to reason for which notice (i.e. employee working stops event. the cause of the currence termination). 1166(a)(4). by § fact that a sec- If termination was caused The different statute, 1168(2), misconduct, abrogates see then event tion of employee triggering employee if an obligations has COBRA’s If, however, not to was grossly misbehaved seems answer con- occurred. termination rights. Nor, by other spouse’s caused some than cerns about his factor conduct, matter, prescribed event plight it consider the of the as Here, Zagel place. Judge took dependents spouse obli- statute notice —no dependents might simply a matter of gation to those be- have determined as attaches as resignation spouse. law that Mlsna’s caused ter- the covered See 29 Mr. cause 1166(c) (“notification Then, resignation need to an mination.2 itself individu- U.S.C. event; in- qualified beneficiary statutory qualifying not be spouse is a al who stead, might merely negate covered shall be treated as gross mis- possibility of “termination for to all other beneficiaries notification *8 obligation no- residing spouse with at the such conduct.” The such time —and made”). begin running still majority’s opin- is The tice clock—would notification workplace. actually conveniently forgets provisions employee these leaves the ion favqr precise date majority’s The worries about the gross provision’s of the misconduct This, workplace are hence language.” despite fact that that Mr. Mlsna left “plain misplaced; undisputed it is that Uni- refrained because long the law has since from sub- colo- (discussing doctrine of coverture in the majority's approach harkens to the 1. The back coverture, legal-system). re- common law doctrine of which nial American indepen- recognize a married woman’s fused "By marriage, legal the husband dent existence. Judge justify Zagel his alternative does not law; is, very person wife are one holding did not terminate Theodore that "Unitel being legal suspend- or of the woman is existence precise gross misconduct” in these Mlsna for during marriage, incorporated or at least ed at 865. The cause terms. 825 I and consolidated into that husband." is, plausible reading analysis effect Blackstone, Law Commentaries on the William Judge Zagel’s conclusion. both the statute (1765). England See also Kermit L. of Hall, 430-33 (Oxford 1989) Magic Mirror 35-37 The notice, hardly timing tel failed to is
an issue in this case. If the exact date of all, anything at
termination is relevant to facts, seriously
I it doubt that is on these it is (i.e. to the cause of termination
relevant
whether Mr. Mlsna left work because he
resigned, or he was fired for because
misconduct). Upholding Judge Zagel here not, majority’s assertion, contrary to the an unfettered “to
preempt employer’s decision to terminate Instead, only
him for misconduct.” judges
entrusts trial with the to deter-
mine the cause of termination as a matter of
law. majority prom-
The result reached case, litigation only
ises extended
but also in to determine the others —all sim-
ple spouse issue whether an innocent is enti-
tled to notice that she must make her own
arrangements for health insurance. It unlikely Congress
most went to the prescribing independent
trouble of notice to spouse, dependent but that notice made
upon the sort of technical considerations the
majority dispositive. thinks reasons, respectfully
For I these dissent as indicated. matters DOWNES, Plaintiff-Appellee,
Robert J. AMERICA,
VOLKSWAGEN OF
INC., Defendant-Appellant.
No. 93-3758. Appeals,
United States Court of
Seventh Circuit.
Submitted Dec. 1993 *.
Decided Dec. * hearing argument After in this case on October final decision. The case was renumbered as No. 93-1639, panel 1993 as No. determined reassigned panel 93-3758 and 7, to this December finality that it suffered from absence of argument. 1993 for decision without further entry remanded it to the district court for