§430 Aggravating Role: Organizer, Leader, Manager or Supervisor
1st Circuit says that no leadership finding is needed to find defendant was trusted by leaders. (430) At defendant’s sentencing for drug trafficking, the district court based the sentence in part on the fact that defendant had “gained the trust” of the drug organization’s leaders. Defendant argued that this was improper because the district court stated that he was not a leader. The First Circuit held that the district court could draw the inference that, though he was not a leader, he was trusted within the organization. U.S. v. Reyes-Gomez, __ F.3d __ (1st Cir. June 11, 2019) No. 17-1757.
6th Circuit affirms where defendant failed to preserve objection to presentence report. (219)(430)(855) On appeal from his conviction for several fraud offenses, defendant challenged the district court’s decisions to add two offense levels under § 2B1.1(b)(2)(A) for mass marketing, two levels under § 2B1.1(b)(4) for being a “person in the business of receiving and selling stolen property,” and four levels under § 3B1.1(a) for being an organizer or leader. The Sixth Circuit found that defendant had not objected in the district court to the presentence report’s factual recommendations on these three enhancements, so there was nothing for the court of appeals to resolve. U.S. v. Roberts, __ F.3d __ (6th Cir. Mar. 28, 2019) No. 17-6512.
8th Circuit finds person who supplied co-defendant with pseudoephedrine was “participant” in offense. (430) Defendant pled guilty to conspiracy to manufacture methamphetamine. He received a three-level enhancement under §3B1.1(b) for being a manager of supervisor of criminal activity involving five or more participants, including Kohl. Co-defendant Duhme testified that Kohl supplied him with pseudoephedrine and that Kohl “knew what to get” because she previously had distributed meth. The Eighth Circuit held that Kohl was properly counted as a participant under §3B1.1(b). A participant only needs to give “knowing aid in some part of the criminal enterprise.” Kohl knowingly aided defendant and Duhme’s criminal enterprise by suppling Duhme with boxes of pseudoephedrine on two occasions, and one of these boxes was used to manufacture drugs on the night of the fire. Circumstantial evidence showed that Kohl understood that her purchases would be used to make meth. Also, after a fire broke out while making the meth, Kohl helped Duhme cut his singed hair in an attempt to conceal from police his involvement in the drug-manufacturing attempt. U.S. v. Starks, __ F.3d __ (8th Cir. Mar. 8, 2016) No. 15-1574.
8th Circuit approves criminal livelihood increase. (240)(430)(530) The drug guideline provides for a two-level enhancement in § 2D1.1(b)(15)(E) if the defendant played an aggravating role in the offense, such as organizer or leader, and “committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.” Defendant received an aggravating role adjustment, and the Eighth Circuit held that he also properly received the criminal livelihood adjustment. A government investigator testified that defendant had no reported income. Other trial evidence established that he was selling large quantities of methamphetamine every week, always paid his rent on time, purchased a car for $13,300 in cash, paid cash for $14,000 worth of repairs and improvements on his home, and purchased several businesses. U.S. v. Morris, __ F.3d __ (8th Cir. July 2, 2015) No. 14-2406. XE “U.S. v. Morris, __ F.3d __ (8th Cir. July 2, 2015) No. 14-2406.”
1st Circuit says judicial fact-finding to preclude safety valve relief did not violate Alleyne. (430) Defendant argued that the district court committed error under Alleyne v. U.S., 133 S.Ct. 2151 (2013), by finding by a preponderance of the evidence that he occupied a managerial role in the conspiracy. This finding made him ineligible for safety-valve relief from the mandatory minimum sentence. Alleyne, by its terms, applies to facts that “increase the mandatory minimum.” Defendant argued that Alleyne applies to any fact that “mandate[s] a greater punishment than a court would otherwise have had discretion to impose.” The First Circuit refused to read Alleyne so expansively, holding that judicial fact-finding that precludes safety-valve relief is permissible because it does not increase that baseline minimum sentence. A fact that precludes safety-valve relief does not trigger or increase the mandatory minimum, but instead prohibits imposition of a sentence below a mandatory minimum already imposed as a result of the guilty plea or jury verdict. U.S. v. Harakaly, 734 F.3d 88 (1st Cir. 2013).
1st Circuit remands where use of disjunctive “or” meant no clear finding of five participants. (430) Defendant sold six firearms to an undercover agent over a period of a year. At least eight individuals, in addition to himself, were present for one or more of the transactions. Defendant disputed whether some of these individuals were criminally responsible participants under § 3B1.1. The district court imposed a § 3B1.1(a) leadership enhancement, finding defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. The First Circuit remanded. Because of the judge’s use of the disjunctive “or,” there was no clear finding that the offense involved five criminally responsible participants. The only circumstances in the PSR that would support an “otherwise extensive” finding was that nine individuals, whether criminally responsible or not, were present during the six transactions. An “otherwise extensive” finding, however, must be warranted by “the totality of the circumstances, including not only the number of participants but also the width, breadth, scope, complexity and duration of the scheme.” U.S. v. Van, 87 F.3d 1 (1st Cir. 1996).
1st Circuit holds that considering loss and leadership role was not double counting. (430) Defendant was involved in two fraud schemes. He contended that it was improper double counting for his sentence to be enhanced under § 2F1.1(b) for the amount of the loss, and also under § 3B1.1(a) for his leadership role. The 1st Circuit rejected his claim. First, he failed to raise the claim below. Second, there was no double counting because the two enhancements measure different things. Section 2F1.1(b) measures the gravity of an offense, with loss serving as a proxy for the seriousness of an offense. Section 3B1.1 measures the culpability of a defendant’s conduct, increasing or decreasing his punishment in rough proportion to his involvement. Although the two enhancements have a degree of relatedness, this did not constitute improper double counting. U.S. v. Lilly, 13 F.3d 15 (1st Cir. 1994).
1st Circuit considers unwitting participants in determining that activity is otherwise extensive. (430) Defendant received a four-level enhancement under section 3B1.1(a) for leading a criminal activity that involved five or more participants or was otherwise extensive. The 1st Circuit held that in determining defendant’s role, it was proper to consider individuals who were innocently involved in the fraud. There is no requirement that a defendant control four other criminally responsible individuals to qualify for enhancement under section 3B1.1(a). Such an interpretation would nullify the “otherwise extensive” language. Once the minimum of two participants is met, “the extensiveness of a criminal activity is not necessarily a function of the precise number of persons, criminally culpable or otherwise, engaged in the activity. Rather, an inquiring court must examine the totality of the circumstances, including not only the number of participants, but also the width, breadth, scope, complexity, and duration of the scheme.” U.S. v. Dietz, 950 F.2d 50 (1st Cir. 1991).
1st Circuit articulates two step analysis for applying aggravating role enhancement. (430) The 1st Circuit stated that in order to increase a base offense level for managerial role under section 3B1.1(c), the court must apply a two-part analysis. First, it must make a factual finding that there were at least two participants in the criminal enterprise. Second, the evidence must show that the defendant exercised control over, or was otherwise responsible for organizing the activities of, at least one other individual committing the crime. U.S. v. Veilleux, 949 F.2d 522 (1st Cir. 1991).
1st Circuit affirms that interstate prostitution ring involved more than five participants. (430) The 1st Circuit affirmed a four-level enhancement under guideline § 3B1.1 based upon defendants’ leadership role in an interstate prostitution ring that involved five or more participants. Defendants were the president and vice-president of the organization. At its peak, the ring had between 15 and 30 employees providing services in three states. Even if all of the employees did not work in the business at the same time and did not all engage in interstate prostitution, this would not change the analysis. The commentary to § 3B1.1 makes it clear that in counting the number of participants, all persons involved during the course of the entire offense are to be considered. U.S. v. Sabatino, 943 F.2d 94 (1st Cir. 1991).
1st Circuit remands case where record did not reflect five or more participants. (430) Defendant received a four-level enhancement in offense level based on his role as an organizer or leader of an offense involving five or more participants. The 1st Circuit remanded for resentencing, finding no evidence in the record that five or more participants were involved. Although the presentence report recommended the upward adjustment, the report neither suggested who the five participants might have been nor discussed why five or more participants were involved. Only four individuals who might qualify as participants, including defendant, were named in the report. The judge made no findings in this regard and the government’s brief did not address the issue. U.S. v. McDowell, 918 F.2d 1004 (1st Cir. 1990).
1st Circuit holds that “5 or more participants” under 3B1.1(a) includes the “organizer” himself. (430) Defendant argued that once the court found him to be the “organizer or leader,” he should not have also been counted as one of the “participants” in the organization under § 3B1.1 of the guidelines. The 1st Circuit disagreed, ruling that the plain language of the guidelines mandates that the organizer be counted as a participant. U.S. v. Preakos, 907 F.2d 7 (1st Cir. 1990).
1st Circuit upholds finding that defendant was an organizer or leader. (430) Defendant exercised a high degree of decision making in organizing cocaine shipments. He also exercised control over four distributors for over a year. He ran the cocaine operation out of his home and was a major retail distributor of cocaine in his local area. Given these facts, the 1st Circuit upheld a district court’s conclusion that defendant was the organizer or leader of a drug operation. U.S. v. Preakos, 907 F.2d 7 (1st Cir. 1990).
2nd Circuit bases leadership adjustment on role in overall RICO enterprise. (430) Defendant was a member of a violent Albanian racketeering organization based in New York. He challenged his sentence on the ground that any aggravating role enhancements should have been based on the conduct alleged in the underlying predicate acts, rather than on his role in the RICO enterprise as a whole. The Second Circuit disagreed, holding that a defendant’s role adjustment is to be made on the basis of the defendant’s role in the overall RICO enterprise. This makes more sense than considering defendant’s role in each underlying predicate act. In the case of a § 3B1.1(b) role enhancement, it makes little sense to allow a defendant who acts in a leadership capacity in a wide-ranging criminal enterprise to have his offense level adjusted on the basis of his participation in discrete racketeering acts. Also, the language of the Guidelines makes it clear that the requirement to look at each individual act in a RICO offense is only for the purpose of establishing the base level offense, not for applying the Chapter Three adjustments. U.S. v. Ivezaj, 568 F.3d 88 (2d Cir. 2009).
2nd Circuit says enhancement is mandatory once court finds defendant is manager. (430) The government argued that the court erred in failing to enhance defendant’s sentence after it found that he was a manager of a drug conspiracy. The Second Circuit agreed, holding that the managerial role enhancement in § 3B1.1 is mandatory once its factual predicates have been established. The district court determined that defendant was a manager or supervisor of the drug organization, thus requiring a § 3B1.1 enhancement. However, the court did not decide whether the offense involved five or more participants. On remand, the court must determine which enhancement applies—§ 3B1.1(b) or (c). U.S. v. Jimenez, 68 F.3d 49 (2d Cir. 1995).
2nd Circuit remands where court made no findings on role. (430) Over defendants’ objections, the district court imposed a four level leadership enhancement under section 3B1.1(a) on one defendant and a two level minor role reduction under section 3B1.2(b) on another defendant. The 2nd Circuit remanded, because in both cases, the district court made no factual findings. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).
2nd Circuit rejects double counting challenge to leadership and more than minimal planning enhancements. (430) The 2nd Circuit rejected defendant’s claim that a leadership enhancement under section 3B1.1(a) and a more than minimal planning enhancement under section 2F1.1(b)(2)(A) constituted impermissible double counting. Double counting is legitimate where a single act is relevant to two dimensions of the guidelines analysis. Leading and planning are two different aspects of criminal conduct. U.S. v. Rappaport, 999 F.2d 57 (2nd Cir. 1993).
2nd Circuit rejects two level increase for supervisor of activity involving more than five people. (430) The 2nd Circuit found that defendant was the supervisor of a cocaine conspiracy, and not merely a telephone dispatcher, as she contended. Defendant decided which runners to send to make particular deliveries and determined specific details of their assignments. She was a signatory of the lease for the premises used as the drug ring’s office and the cellular telephones used by members of the ring were in the name of the alias she used. However, because it was undisputed that defendant’s criminal activity involved more than five persons, it was error for the district court to impose a two level enhancement. Section 3B1.1(b) specifies a three level enhancement for supervisors of criminal activity involving five or more participants. However, since the case was being remanded for another reason, the district court was instructed to give the defendant the opportunity, if she chose, to withdraw her challenge to the enhancement and allow the two level enhancement to stand. U.S. v. Cotto, 979 F.2d 921 (2nd Cir. 1992).
2nd Circuit determines that extortionate collection of debt is “otherwise extensive” based upon its connection to gambling activity. (430) Defendant was convicted of using extortionate means to collect a debt. The 2nd Circuit affirmed a three-level enhancement under guideline § 3B1.1(b) based upon defendant’s managerial role of a criminal activity that involved five or more participants or was otherwise extensive. Recent circuit precedent established that a defendant’s role in an offense can be determined on the basis of uncharged relevant conduct. Here, defendant ran an extensive gambling operation which was relevant to the offense of conviction. The gambling operation furthered defendant’s extortion since it created the debt that defendant unlawfully sought to collect. U.S. v. Lanese, 937 F.2d 54 (2nd Cir. 1991).
2nd Circuit upholds managerial role for defendant who obtained cocaine and recruited co-defendant. (430) The 2nd Circuit found the district court’s determination that defendant played a managerial role was not clearly erroneous. Defendant had obtained cocaine and hired a co-defendant to carry it for him. U.S. v. Jacobo, 934 F.2d 411 (2nd Cir. 1991).
2nd Circuit denies minor status to defendant who participated with brothers in drug business on an equal basis. (430) The 2nd Circuit rejected defendant’s claim that he was entitled to a reduction based upon his minor status in the drug transaction. Evidence revealed that defendant and his two brothers participated on an equal basis in their drug enterprise. Defendant was present on both occasions when a police detective negotiated to purchase drugs from the brothers. On the day the kilogram was delivered, defendant guarded the detective and the money while defendant’s brothers obtained the cocaine. Moreover, on that day, defendant alone among the brothers possessed a weapon. U.S. v. Pimental, 932 F.2d 1029 (2nd Cir. 1991).
2nd Circuit holds that defendant’s role in offense can be based upon uncharged relevant conduct. (430) Defendant contended it was improper to increase his offense level based upon his leadership role in uncharged conduct, contending that a court may only make this determination based upon a defendant’s role in the offense of conviction. The 2nd Circuit rejected this, finding that a court may properly determine a defendant’s role in an offense based upon all relevant uncharged conduct. The commentary to the guidelines was amended November 1, 1990 to specifically provide this. The Sentencing Commission viewed the new language as simply clarifying the guidelines. Although the commission’s instructions are not dispositive, they are entitled to considerable deference. .S. v. Perdomo, 927 F.2d 111 (2nd Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. McKay, 183 F.3d 89 (2nd Cir. 1999).
2nd Circuit finds failure to hold a hearing concerning defendant’s managerial status to be erroneous. (430) In remanding the case on other grounds, the 2nd Circuit noted that it was erroneous for the district court to ascribe managerial status to defendant without holding a hearing, since both the probation department and the prosecution agreed a hearing was necessary. U.S. v. Mickens, 926 F.2d 1323 (2nd Cir. 1991).
3rd Circuit focuses “otherwise extensive” analysis on the number of others involved. (430) The circuits disagree how to analyze whether criminal activity is “otherwise extensive” for § 3B1.1 purposes. In U.S. v. Carrozzella, 105 F.3d 796 (2d Cir. 1997), the Second Circuit held that a court must focus initially on the number of participants, and the number of knowing or unknowing persons involved in the activity, and then determine whether all those persons constitute the functional equivalent of five “participants.” Other circuits permit a broader inquiry into the other characteristics of the activity. The Third Circuit adopted the Second Circuit’s view in Carrozzella, holding that a court should focus upon the number and roles of the individuals knowingly and unknowingly involved in the scheme. However, not every individual tangentially involved in the activity can be fairly considered in the analysis. A court should use a three-step inquiry to determine which individuals should be counted. First, a court must separate participants from non-participants involved in the activity. Next, the court must determine whether defendant used each non-participants’ services with specific criminal intent. Finally, the court must determine the extent to which the services of each non-participant were “peculiar and necessary” to the scheme. U.S. v. Helbling, 209 F.3d 226 (3d Cir. 2000).
3rd Circuit says more than minimal planning and leadership enhancements are not double counting. (430) The 3rd Circuit held that enhancements under §2B1.5(b)(5) for more than minimal planning and §3B1.1(c) for being an organizer or leader of criminal activity did not constitute double counting. These enhancements address different concerns, and the Sentencing Commission intended both enhancements to be applied, in tandem when appropriate. The more than minimal planning enhancement was intended to distinguish between relatively simple crimes and more sophisticated ones. The adjustment for role in the offense addresses the relative responsibilities for those involved. It is possible for an offense to involve more than minimal planning, but not other people. Similarly, it is possible for someone to be an organizer or leader in a scheme that does not require a great deal of planning. U.S. v. Wong, 3 F.3d 667 (3rd Cir. 1993).
3rd Circuit affirms aggravating role of defendant who organized pension fraud scheme. (430) The 3rd Circuit affirmed a two level enhancement under guideline § 3B1.1 based upon defendant’s aggravating role in a pension fraud scheme. Even if the other two defendant’s exercised decision-making authority over the scheme, this would not preclude defendant from also being a leader. Defendant did far more than merely suggest the commission of the offense. Defendant first approached the codefendants with the scheme. He demanded that one codefendant obtain a 20 percent commission rate to increase their return, and told the other codefendant that if the codefendant accepted defendant’s plan, the codefendant would be “taken care of.” Defendant participated in organizing all aspects of the scheme, including the financial transactions. U.S. v. Cusumano, 943 F.2d 305 (3rd Cir. 1991).
3rd Circuit says court can consider only offense of conviction in making role adjustments for offenses prior to November 1, 1990. (430) Following several other circuits, the 3rd Circuit held that for offenses committed prior to November 1, 1990, a district court may not consider all relevant conduct in determining a defendant’s role in the offense. Rather, a court may consider only the conduct comprising the offense of conviction and any conduct in furtherance of the offense of conviction. For offenses committed after November 1, 1990, a court should consider all relevant conduct under guideline § 1B1.3. In this case, the finding that defendant supervised criminal activity involving five or more participants was clearly erroneous, since it was based on relevant conduct unrelated to the offense of conviction. U.S. v. Murillo, 933 F.2d 195 (3rd Cir. 1991).
3rd Circuit holds “clearly erroneous” standard of review proper in finding that defendant was an “organizer.” (430) The 3rd Circuit found that the appropriate standard of review in determining whether a defendant was an organizer, leader, manager or supervisor is the “clearly erroneous” standard, because these conclusions are essentially factual. Applying this standard, the district court’s conclusion that the defendant was an organizer or leader of five or more persons under § 3B1.1(a) was proper. The four point increase in the base offense level was therefore justified, given the defendant’s control of the location of the drug transaction, the quantity, price to be paid and the responsibilities and actions of the other participants. U.S. v. Ortiz, 878 F.2d 125 (3rd Cir. 1989).
4th Circuit rules leadership enhancement properly applied after grouping. (430) Defendant was convicted of conducting an illegal gambling business, money laundering, and income tax charges. The district court grouped all of the counts under § 3D1.2. Defendant’s sentence was determined with reference to the highest offense level, which was for money laundering. To this adjusted offense level, the court then applied a § 3B1.1(a) leadership enhancement. Defendant claimed that the guidelines required the application of the role adjustment to individual offenses before grouping. In addition, he claimed that an adjustment to the money laundering sentence based on his leadership role in the gambling offenses was improper because the latter was not relevant to the former. The Fourth Circuit held under circuit law, a role in the offense adjustment is applied after related offenses are grouped. Since defendant did not challenge the grouping of his offenses, the role adjustment was properly applied after grouping. Moreover, defendant’s leadership in the gambling operation was relevant conduct to the money laundering. Without the illegal gambling, there would have been no ill-gotten gains to launder. The gambling business was relevant conduct under § 1B1.3(a)(2) because the money laundering counts themselves were grouped based on the amount of money laundered under § 3D1.2(d). U.S. v. Nicolaou, 180 F.3d 565 (4th Cir. 1999).
4th Circuit holds that one can be a manager without supervising people. (430) Defendant challenged a section 3B1.1(b) managerial enhancement on the ground that he did not supervise people. The 4th Circuit agreed that there was insufficient evidence that defendant supervised people, but held that one who manages property without supervising people can be section 3B1.1(b) manager. Neither mere possession of property nor mere service as a courier supports such an enhancement. However, in certain cases, a defendant’s extensive management over property, assets, or activities of a criminal organization may justify the managerial enhancement. The case was remanded for specific factual findings in light of the factors in application note 3. Judge Widener dissented from the portion of the opinion requiring more specific factual findings. Judge Murnaghan dissented from the portion of the opinion that applied section 3B1.1 to the management of inanimate objects. U.S. v. Chambers, 985 F.2d 1263 (4th Cir. 1993).
4th Circuit says adjustment for both managerial role and more than minimal planning was not “double counting.” (430) Defendant used a fraudulently obtained government identification badge to persuade a store owner that the government would pay for the furniture, and had two friends pose as government agents. The 4th Circuit rejected defendant’s argument that there were no other participants and thus he was not a manager or organizer of the crime. Defendant’s friends actively participated in the crime by posing as government agents, and defendant exercised authority over them. Moreover, it was not double counting to enhance defendant’s sentence for more than minimal planning. Defendant’s use of his friends was just one of the elements relied upon by the court to find more than minimal planning. On his own, defendant also set up a corporation used in committing the crime, obtained the identification badge, and visited the store on more than one occasion. These actions alone, without the involvement of his friends, would have constituted more than minimal planning. U.S. v. Curtis, 934 F.2d 553 (4th Cir. 1991).
4th Circuit determines role based on relevant conduct, not just offense of conviction. (430) The 4th Circuit, disagreeing with several other Circuits, held that defendant’s role determination was to be based upon his role in the entirety of his relevant conduct, not solely on his role in the offense of conviction. A court should look beyond the count of conviction when considering adjusting his sentence based on his role in the offense, and consider all relevant conduct. Thus defendant’s sentence was properly adjusted for his leadership role, even though he was not a leader for the counts on which he was convicted. U.S. v. Fells, 920 F.2d 1179 (4th Cir. 1990).
4th Circuit rules increase in offense level based partly upon uncorroborated hearsay and two dismissed state charges was proper. (430) Defendant’s base offense level was increased by four points under guideline § 3B1.1(a) because there was evidence that he was an “organizer or leader of a criminal activity that .ÿ.ÿ. was otherwise extensive.” He appealed the sentence claiming that this increase was based upon hearsay evidence of an informant which was insufficiently reliable. The 4th Circuit affirmed the sentence. Although guideline § 1B1.4 and 18 U.S.C. § 3661 permit the use of hearsay evidence in determining sentences if it is sufficiently reliable, the court found that the uncorroborated hearsay was of questionable reliability. However, the enhancement was nevertheless proper given other information contained in the record, including two dismissed state charges. U.S. v. Roberts, 881 F.2d 95 (4th Cir. 1989).
4th Circuit holds minor participant status is subject to clearly erroneous review. (430) Defendant’s role in the drug transaction was that of a messenger. He argued that he should have received a two point decrease in his base offense level due to his minor status under § 3B1.2(b). The 4th Circuit affirmed the sentence, holding that the district court’s finding was not clearly erroneous. The court was not required to rely upon the police officer’s characterization of the defendant in determining his culpability. U.S. v. White, 875 F.2d 427 (4th Cir. 1989).
5th Circuit says court erred in interpreting phrase “otherwise extensive.” (430) Defendant was convicted of violating the Clean Air Act for using untrained workers to remove asbestos from a hospital building he owned. The government sought a four-level enhancement for defendant’s status as an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. § 3B1.1(a). The court instead imposed only a two-level enhancement under § 3B1.1(c), concluding that defendant’s criminal activity did not involve five or more participants and was not otherwise extensive. The Fifth Circuit found that the district court misinterpreted the phrase “otherwise extensive.” The district court apparently interpreted this phrase to require an ongoing criminal organization of a kind that would justify an upward departure under application note 2. This interpretation misreads note 3, which instructs the court to examine the number of persons involved in the activity, not the nature of the criminal organization. The district court erred by interpreting the phrase “otherwise extensive” in § 3B1.1(a) to refer to the nature of the criminal organization, as distinguished from the number of participants and persons involved. U.S. v. Ho, 311 F.3d 589 (5th Cir. 2002).
5th Circuit says increase was based on leadership role, not firearms. (430) Defendant argued that the district court improperly increased his sentence based on his possession of firearms when he had already been convicted of using or carrying the same firearms. He pointed to the court’s statement that it was adopting the four level increase recommended by the PSR because of his leadership role and his possession of firearms during the drug trafficking offense. The Fifth Circuit held that the district court did not apply a firearm enhancement. The PSR recommended a four level increase for his leadership role under § 3B1.1(a). In doing so, the PSR expressly rejected any increase based on possession of a firearm. Although the court adopted the four level increase partly because of defendant’s possession of firearms, the court did not use § 2D1.1(b)(1) to calculate the four level increase. U.S. v. Brown, 102 F.3d 1390 (5th Cir. 1996), overruled on other grounds by U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).
5th Circuit says enhancements for organizer role and more than one fraud victim are not double counting. (430) Defendant argued that his organizer enhancement under § 3B1.1(a) and his enhancement under § 2F1.1(b)(2) for more than minimal planning or involvement in a scheme to defraud more than one victim was double counting. The 5th Circuit affirmed both enhancements. Even if U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992) was the law in this Circuit, it was distinguishable. Section 2F1.1(b)(2) allows an increase if defendant engaged in more than minimal planning or engaged in a scheme to defraud more than one victim. The district court found that defendant’s conduct fit either of the two options. In such a circumstance, even the 6th Circuit does not follow the Romano rule. scheme to defraud more than one victim. U.S. v. Godfrey, 25 F.3d 263 (5th Cir. 1994).
5th Circuit views drug conspiracy as “otherwise extensive.” (430) The district court enhanced defendants’ drug sentences under 3B1.1(a) because of their roles as organizers or leaders in a criminal activity involving five or more participants or that was “otherwise extensive.” Though the district court did not specify five participants, it specifically found that the conspiracy was “otherwise extensive.” Noting the “extremely large” quantity and street value of the heroin involved, its high purity, and the specification of some other participants, the 5th Circuit upheld this finding. U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).
5th Circuit upholds consideration of related transactions to determine leadership role. (430) Defendant pled guilty to two counts of structuring transactions to evade reporting requirements. Defendant contended that the district court improperly determined that he was a leader based upon evidence that defendant directed participants in currency transactions other than the those for which he was convicted. The 5th Circuit found that the leadership enhancement was proper because the transactions in which defendant controlled other persons were part of the same underlying scheme and course of conduct as the offense of conviction. Following its recent opinion in U.S. v. Mir, 919 F.2d 940 (5th Cir. 1990), the court found that it was proper for the sentencing court to consider all conduct linked to the transaction, “even if it falls outside the four corners of the conviction itself.” U.S. v. Rodriguez, 925 F.2d 107 (5th Cir. 1991).
5th Circuit remands for reconsideration of defendant’s leadership role where co-defendant’s conviction is reversed. (430) Defendant was found to be an organizer, leader, manager or supervisor based upon the district court’s finding that defendant led a co-defendant into the commission of the drug offense. However, the 5th Circuit found that there was insufficient evidence to sustain the co-defendant’s conviction. Therefore, the appellate court also vacated defendant’s sentence and remanded the case to the district court for reconsideration of defendant’s role in the offense. U.S. v. Pigrum, 922 F.2d 249 (5th Cir. 1991).
5th Circuit upholds role adjustment based on relevant conduct in underlying scheme. (430) The 5th Circuit explained that its recent decision in U.S. v. Barbontin, 907 F.2d 1494 (5th Cir. 1990) merely established that under § 3B1.1, the government cannot “delve into unrelated transactions in an attempt to round up the requisite number of conspirators.” Although Barbontin said that leadership should be evaluated in the context of the transactional participants, it did not define § 3B1.1’s “offense” so narrowly as to limit it to the precise activity comprising the bare elements of the offense charged. “[T]he plain language of § 3B1.1 permits the sentencing court to consider all conduct linked to the transaction, even if it falls outside the four corners of the conviction itself.” In this case, the “anchoring transaction “was the sale of 27 grams of cocaine. Although this sale did not involve other participants, the upward adjustment was still proper. Defendant controlled his own source of drugs, and his drug distribution ring was the source of the 27 grams of cocaine sold. U.S. v. Mir, 919 F.2d 940 (5th Cir. 1990).
5th Circuit looks beyond offense of conviction to find that defendant was leader of amphetamine ring. (430) Defendant ran a large scale amphetamine distribution ring, and was responsible for the production of approximately 7,000 grams from her laboratory in Oklahoma. However, defendant pled guilty only to distributing two ounces of amphetamine, and argued that since she was the only participant in the offense charged, it was improper to treat her as a leader of a criminal activity involving five or more participants. The 5th Circuit agreed that the “offense” in guideline § 3B1.1(a) refers only to the offense charged. However, the court held that the court could consider “the underlying activities and participants that directly brought about the more limited sphere of the elements of the specific charged offense” as relevant conduct. In this case, defendant established an extensive manufacturing and distribution system. The sale to the agent was “but the final link in a chain of extensive drug activities.” Therefore, it was proper to find that defendant was a leader under § 3B1.1(a). U.S. v. Manthei, 913 F.2d 1130 (5th Cir. 1990).
5th Circuit requires five participants in offense of conviction for defendant to be a “leader.” (430) A DEA agent testified that defendant was the leader of a drug enterprise involving at least 10 others, whom the agent identified by name. The agent also testified that “several” of these named individuals were involved in the particular transaction underlying defendant’s conviction. The 5th Circuit struck down an upward adjustment in defendant’s offense level based upon his leadership of an enterprise involving five or more individuals. The court held that a district court may only consider those members of defendant’s organization involved in the transaction of conviction in order to increase defendant’s offense level under guideline § 3B1.1(a). The case was remanded for the district court to determine whether at least five individuals were involved in the transaction leading to defendant’s conviction. U.S. v. Barbontin, 907 F.2d 1494 (5th Cir. 1990).
6th Circuit refuses to consider claim that court should have applied amendment. (430) In a § 2255 petition, defendant claimed that the district court erred by failing to apply a 1993 amendment to § 3B1.1 to determine whether he deserved a leadership enhancement. He claimed that the court based a § 3B1.1 enhancement on his control of property rather than his control of another participant. Amendment 500 makes clear that § 3B1.1 requires a defendant to manage, supervise, lead or organize at least one participant. The Sixth Circuit held that defendant’s claim could not be considered in a § 2255 motion. Although defendant challenged the § 3B1.1 enhancement on direct appeal, he did not argue that Amendment 500 should be applied. An argument not raised on direct appeal is waived. Moreover, a § 2255 motion may not be used to relitigate an issue that was raised and considered on direct appeal absent exceptional circumstances, such as an intervening change in the law. There was no intervening change in the law. Amendment 500 became effective November 1, 1993, one month before defendant’s direct appeal. Finally, an error in the application of the Sentencing Guidelines does not warrant collateral relief under § 2255 absent a complete miscarriage of justice. Jones v. U.S., 178 F.3d 790 (6th Cir. 1999).
6th Circuit holds that clarifying amendment should be applied retroactively even though not listed as such. (430) Defendant challenged the denial of his § 2255 petition, claiming that a recent amendment to § 3B1.1 required the district court to grant him a new sentencing hearing. Amendment 500, effective a year after defendant was sentenced, added an application note to § 3B1.1 stating that the enhancement is only justified where the defendant has organized, led, or supervised at least one other participant. According to the Sentencing Commission, the amendment “clarifies” the operation of the section. The district court found that although Amendment 500 was an intervening change in the law, it was not applicable to defendant because it was not listed as retroactive in § 1B1.10. The Sixth Circuit held that Amendment 500 was a clarifying amendment and the district court erred in not applying it to defendant. The Commission probably did not see the need to list Amendment 500 in § 1B1.10(c), because the amendment is supposed to be a clarification of the law rather than a substantive change. A petitioner is entitled to receive the sentence he would have received had the Commission initially drafted an unambiguous provision. Jones v. U.S., 161 F.3d 397 (6th Cir. 1998).
6th Circuit rules that multiple victim and leadership enhancement is not double counting. (430) Defendant received a leadership enhancement under section 3B1.1(a) and an enhancement under section 2F1.1(b)(2) for an offense involving more than minimal planning or multiple victims. Defendant argued that the more than minimal planning enhancement was impermissible double counting under U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992). The 6th Circuit rejected the argument since section 2F1.1(b)(2) requires an enhancement when either of two elements is present: more than minimal planning or more than one victim. While the minimal planning element is penalized by section 3B1.1(a), the multiple victim element is not. Here, unlike Romano, the district court found both elements were present. U.S. v. Aideyan, 11 F.3d 74 (6th Cir. 1993).
6th Circuit says acquitted conduct can be considered in determining role in offense. (430) The 6th Circuit, relying on U.S. v. Moreno, 933 F.2d 362 (6th Cir.), affirmed that acquitted conduct could be considered in determining role in offense under section 3B1.1. U.S. v. August, 984 F.2d 705 (6th Cir. 1993).
6th Circuit says enhancements for organizer role and more than minimal planning are improper double counting. (430) The 6th Circuit held that it was impermissible double counting to enhance defendant’s sentence under section 3B1.1(a), for being the organizer and manager of criminal activity, and section 2F1.1(b)(2), for engaging in more than minimal planning. The court rejected U.S. v. Curtis, 934 F.2d 553 (4th Cir. 1991), which upheld such enhancements. Instead, it agreed with the 8th Circuit in U.S. v. Werlinger, 894 F.2d 1015 (8th Cir. 1990), which held that the Commission did not intend for the same conduct to be punished cumulatively under separate guideline provisions. Application note 3 to section 3B1.1(a) states that factors to consider in determining whether to apply the organizer enhancement include “the degree of participation in planning or organizing the offense.” Thus, under the guidelines, the district court is instructed to take into account the planning that went into the offense under section 3B1.1(a). It would violate due process and principles of lenity to enhance defendant’s sentence again for the same conduct under section 2f1.1(b)(2). Judge Siler dissented from this portion of the opinion. U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992), superseded by Guideline as stated in U.S. v. Perkins, 89 F.3d 303 (6th Cir. 1996).
6th Circuit reverses increase for role in the offense under 3B1.1(c) because only one criminally culpable person was involved. (430) Defendant was convicted of attempted escape and the district court increased the offense level by two levels for her role in the offense under 3B1.1(c). The only other party to the attempted escape was an undercover government agent. The 6th Circuit held that application of the guideline was erroneous because only one offender was involved and that no criminal enterprise or organization existed. The guideline requires that the defendant engage in criminal activity with at least one other criminally culpable person. U.S. v. Carroll, 893 F.2d 1502 (6th Cir. 1990).
7th Circuit says manager can be a minor participant. (430) Defendant argued that the court erred in ruling that because defendant received an managerial role increase under § 3B1.1, he was not eligible for a mitigating role reduction under § 3B1.2. Defendant based this argument on U.S. v. Jackson, 207 F.3d 910 (7th Cir. 2000) rev’d on other grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000), where the court commented that “Section 3B1.2 does not say that a manager or supervisor cannot be a minor participant; all that is required is that he be less culpable than most of the other participants.” Based on Jackson, the Seventh Circuit held that the district court erred in categorically excluding him from eligibility for a role reduction under § 3B1.2. However, the panel held that the error was harmless, because defendant was not a minimal or minor participant in the scheme; in fact, he was significantly involved. Even if defendant were correct that the other conspirators were more involved, that alone did not entitle him to a reduction because he was an essential component in the conspiracy. U.S. v. Doe, 613 F.3d 681 (7th Cir. 2010).
7th Circuit says imposition of organizer and use-of-minor enhancements was not double counting. (430) At sentencing on defendant’s conviction for possession of illegal explosives, the district court enhanced defendant’s sentence under § 3B1.4 for using a minor in the commission of the offense and under § 3B1.1 for being an organizer or leader. Defendant argued that because one of the people whom he organized or led was the minor who formed the basis for the § 3B1.4 enhancement, imposition of both enhancements constituted impermissible double counting. The Seventh Circuit held that imposition of the two enhancements was not double counting because the organizer enhancement would have applied regardless of the age of defendant’s accomplices, and the use-of-a-minor enhancement would have applied regardless of whether the offense was otherwise extensive. U.S. v. Shearer, 479 F.3d 478 (7th Cir. 2007).
7th Circuit says court abused discretion in not granting continuance so that government could supplement record. (430) The parties agreed under defendant’s plea agreement that he should receive a three-level increase under § 3B1.1(b) for being a manager or supervisor of criminal activity involving five or more participants. At sentencing, the court refused to apply the enhancement, finding that the government had not provided sufficient evidence to support the increase. The government asked the court for a continuance so that witnesses could be brought to testify about defendant’s role in the offense, but the court declined to grant one. The Seventh Circuit held that the court’s refusal to grant the continuance under these circumstances was an abuse of discretion. Ordinarily, when both parties agree to a sentencing adjustment, they do not come to court armed with the testimonial, documentary and physical evidence necessary to prove the basis of their agreement. Since both parties had agreed to the managerial role enhancement, when the court found that the facts in the record were insufficient to support that increase, the court should have notified the parties in advance of the sentencing hearing of the issue in dispute, or at sentencing granted a continuance to the party seeking to supplement the record on that issue. U.S. v. Sienkowski, 359 F.3d 463 (7th Cir. 2004).
7th Circuit reverses for insufficient findings to support managerial role enhancement. (430) Defendant pled guilty to a cocaine distribution conspiracy. In imposing a § 3B1.1(b) enhancement over defendant’s objection, the court explained only that defendant clearly was “a manager in the cocaine business.” The Seventh Circuit held that these findings were insufficient to support the § 3B1.1(b) enhancement. Although there may have been evidence in the record to support the enhancement, the district court made no findings and did not refer to the recommendations in the PSR. The court did not identify any other participant in the criminal activity who was controlled by defendant, and did not discuss whether the activity involved five or more participants or was otherwise extensive. When an issue under the guidelines is disputed, the court either must adopt the PSR’s recommended findings or make independent findings sufficient to support its conclusion. The court did neither here. U.S. v. Patel, 131 F.3d 1195 (7th Cir. 1997).
7th Circuit remands for consideration of whether defendant was entitled to minor role status. (430) The district court held that defendant was not entitled to a four-level minimal role reduction under guideline section 3B1.2. The 7th Circuit remanded because it was unclear from the record whether the district court considered giving defendant a two-level reduction as a minor participant. Senior Judge Burns dissented. U.S. v. Gutierrez, 978 F.2d 1463 (7th Cir. 1992).
7th Circuit rules that defendant was manager, but not leader, of drug ring. (430) The 7th Circuit held that defendant should only have received a three-level enhancement under section 3B1.1(b) for being a manager or supervisor of a drug ring, rather than a four-level enhancement under section 3B1.1(a) for being a leader or organizer of the ring. In imposing the enhancement, the district court noted that defendant was “an organizer, leader, manager or supervisor” without properly distinguishing among these classifications. The record revealed that defendant was only a manager in the marijuana distribution scheme, which was at all times organized and controlled by another individual. U.S. v. Brown, 944 F.2d 1377 (7th Cir. 1991).
7th Circuit affirms enhancement based upon either managerial role or use of special skill. (430) The district court gave defendant a two-point enhancement based upon his managerial role in a drug offense under guideline section 3B1.1. In the alternative, the court justified the enhancement under section 3B1.3 based upon defendant’s use of a special skill in producing methamphetamine. The 7th Circuit agreed that either guideline was an adequate ground for the enhancement. Defendant directed and controlled his younger brother-in-law’s activities. With respect to the special skill enhancement, defendant founded a chemical company which he used to buy and make batches of the drugs. Although not a chemist, defendant had a degree in biology and formerly worked as the chief lab technician for the surgery department at a Texas hospital. He used his knowledge of chemistry to purchase chemicals for his company, and put them together in the “right combination” to make methamphetamine. U.S. v. Fairchild, 940 F.2d 261 (7th Cir. 1991).
7th Circuit affirms enhancement for both more than minimal planning and leadership of “otherwise extensive” criminal activity. (430) Defendants conducted a massive mail fraud scheme. The district court enhanced defendants’ offense level by two under guideline § 2F1.1(b)(2) for more than minimal planning and by four points under guideline § 3B1.1(a) for their roles as leaders of criminal activity that was “otherwise extensive.” The 7th Circuit rejected defendants’ claim that this constituted impermissible double counting. The “otherwise extensive” language applies to the number of the people involved in the operation, not the extent of the criminal activity. The purpose of § 3B1.1 is to increase the sentence due to a defendant’s leadership role in an offense, not because the nature of the offense itself. Moreover, § 2F1.1(b)(2) allows for a two-point enhancement for either more than minimal planning or when the scheme to defraud involves more than one victim. Thus, defendants’ offense level could have been increased by two levels regardless of their degree of planning, simply because there were 3,000 victims in their scheme. U.S. v. Boula, 932 F.2d 651 (7th Cir. 1991).
7th Circuit upholds defendant’s organizing role even though another defendant also played an organizing role. (430) Defendant argued that he could not have been an organizer or supervisor because a co-defendant organized and supervised the transaction. The 7th Circuit rejected this argument. While the co-defendant played a significant role in the transaction, a finding that the co-defendant was an organizer would not preclude defendant from also receiving such an enhancement. Defendant need not control all aspects of the scheme to be an organizer or a supervisor. U.S. v. Ramos, 932 F.2d 611 (7th Cir. 1991).
7th Circuit holds that “organizer” adjustment applies only where the defendant organizes other criminals. (430) The defendant argued that U.S.S.G. 3B1.1 is applicable only where the offender organizes the services of criminally responsible participants rather than unknowing or unwitting actors. The 7th Circuit agreed, holding that “the sentencing commission intended § 3B1.1 to apply only to situations where the offender organizes or leads “criminally responsible individuals.” Here the defendant organized numerous unknowing victims of his fraudulent schemes as well as unwitting family members. Since the defendant did not organize even one criminally responsible individual his sentence was vacated. The court noted that its opinion was in accord with the 6th Circuit and in disagreement with the 9th Circuit. U.S. v. DeCicco, 899 F.2d 1531 (7th Cir. 1990).
7th Circuit vacates role enhancement where defendant was the only person involved in the offense of conviction. (430) Defendant pleaded guilty to possession of 500 grams of cocaine with intent to distribute. There was evidence that defendant’s son and daughter were also involved in distributing drugs for him. Accordingly, the district court increased his base offense level by two points for playing a primary role in the offense under U.S.S.G. § 3B1.1(c). The 7th Circuit reversed, holding that “the elements of the offense enhanced under guideline § 3B1.1(c) must include the participation of more than one person.” Since the defendant acted alone in the offense for which he was convicted, the two level increase was improper. U.S. v. Tetzlaff, 896 F.2d 1071 (7th Cir. 1990).
7th Circuit rules quantity or quality of drugs alone does not determine defendant’s role in the offense. (430) The government argued that the quality and quantity of the drugs defendant possessed tended to show his organizer role. The Seventh Circuit rejected the argument, stating that a large quantity of drugs may imply that a large organization exists but this “does not address the defendant’s relative role in that large organization.” The court added, however, that this “is not to say that quantity and quality may never be used to support a finding that a defendant played an aggravating role in the offense.” U.S. v. Herrera, 878 F.2d 997 (7th Cir. 1989).
8th Circuit says two-level increase was erroneous where offense involved more than five participants. (430) The district court found that defendant was an organizer, leader, manager or supervisor pursuant to § 3B1.1(c). However, the court also found that the number of individual participants involved in the offense was more than five. Therefore, the court’s only options were a four-level increase under § 3B1.1(a) or a three-level increase under § 3B1.1(b). The district court erroneously imposed only a two-level increase. The Eighth Circuit found that reversal was not necessary because defendant’s sentence was already capped at the maximum sentence allowed by Apprendi v. New Jersey, 530 U.S. 466 (2000). The court finding that defendant was an organizer, leader, manager or supervisor was not clearly erroneous. Cooperating conspirators testified that defendant was Beal’s number one man. They each said Beal was the true leader of the conspiracy, but that he instructed them to go to defendant for their supply of crack of cocaine or with their questions whenever Beal was unavailable. Thus, defendant was more than a mid-level supplier. U.S. v. Johnson, 278 F.3d 749 (8th Cir. 2002).
8th Circuit says using defendant’s role in wire fraud to adjust money laundering counts required grouping. (430) The district court grouped defendant’s money laundering counts and fraud counts separately. He argued that the court erred by applying a leadership increase to the money laundering group based in his role in the wire fraud activity. He argued that this was inconsistent with § 3D1.2(c), which requires grouping when “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” The Eighth Circuit found no fault with the district court’s consideration of defendant’s role in the underlying wire fraud offense to adjust the money laundering counts. The guidelines require that a defendant’s role in the offense be determined on the basis of all relevant conduct, and not solely on the basis of elements and acts in the count of conviction. USSG Ch. 3 pt. B, introductory cmt. However, the court agreed that using conduct from one group of counts to adjust the offense level of another group of counts without thereafter grouping all the counts together was inconsistent. The panel concluded that § 3D1.2(c) requires money laundering and fraud counts to be grouped together when a district court relies solely on fraud conduct to adjust the money laundering guidelines. However, defendant did not challenge the district court’s grouping decision in this appeal; he only challenged the § 3B1.1 adjustment. U.S. v. Ross, 279 F.3d 600 (8th Cir. 2002).
8th Circuit holds that failure to seek evidentiary hearing on leadership increase was not ineffective. (430) Defendant’s theory of defense at trial was that co-conspirator Newsome was the leader of the drug conspiracy. After defendant was convicted, his attorney filed a motion requesting a evidentiary hearing on whether he should receive a leadership increase. At sentencing, defendant’s attorney advised the court that an evidentiary hearing would not be necessary. He then argued that the trial evidence established that Newsome was the leader, and pointed to evidence supporting this position. The district court nonetheless applied the § 3B1.1(c) increase. In the current § 2255 petition, defendant claimed that his counsel improperly waived the evidentiary hearing. The district court denied the petition, and the Eighth Circuit affirmed. At sentencing, defendant’s attorney reminded the court about the evidence presented at trial. The district court indicated that it was fully aware of this evidence, and found there was substantial evidence that defendant was a leader in the conspiracy. Since most of the evidence defendant claimed would have been uncovered by an evidentiary hearing was highlighted by his attorney and already known by the court, he could not show a reasonably probability that if the court had held an evidentiary hearing, he would not have received the increase. U.S. v. Etheridge, 241 F.3d 619 (8th Cir. 2001).
8th Circuit remands where court made no findings on other participants or extensiveness of criminal activity. (430) Defendant objected to the four-level role in the offense enhancement recommended in the PSR. In imposing only a two-level enhancement, the district court stated that it was going to “partially grant” defendant’s objection because although defendant “played a primary role and an organizer role, [the court did] not believe that he alone was responsible for what went on in [the scheme].” The Eighth Circuit remanded for a finding on whether the criminal activity involved five or more participants or was otherwise extensive. The court clearly found that defendant was an organizer or leader of the activity, and there was ample evidence to support this finding. Less clear, however, was the court’s finding, if any, regarding the number of participants involved or the extensiveness of the activity. The court’s comments showed a finding that other persons were also responsible for the fraud; however, this was not relevant to whether the criminal activity involved five or more participants or was otherwise extensive. U.S. v. Ross, 210 F.3d 916 (8th Cir. 2000).
8th Circuit says leadership and more than minimal planning enhancements were not double counting. (430) Disagreeing with the 6th Circuit’s decision in U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992), the 8th Circuit held that an enhancement under §3B1.1 for being a leader of criminal activity involving five or more participants did not double count conduct used to support a more than minimal planning enhancement under §2F1.1(b)(2). The two sections consider different aspects of a defendant’s conduct. The court agreed with the dissent in Romano that “if the crime has its base offense level increased for more than minimal planning it should be enhanced again if the defendant is the one who organized or led the planning of the offense.” U.S. v. Willis, 997 F.2d 407 (8th Cir. 1993).
8th Circuit says Burns does not require notice of intent to apply adjustment. (430) The 8th Circuit rejected defendant’s claim that the district court failed to give notice under Burns v. U.S., 111 S.Ct. 2182 (1991) of its intent to apply a three level managerial adjustment under section 3B1.1(b), rather than the two level adjustment under subsection (c) recommended by his presentence report. While Burns requires that both parties be given adequate notice before a court departs from the applicable guideline range, it does not require notice of intent to apply an adjustment or enhancement. The terms “manager” and “supervisor” in sections 3B1.1(b) and (c) have the same meaning. Based on the presentence report’s recommendation, defendant had adequate notice of a role enhancement. The only thing he did not have notice of was the possibility that his sentence might be enhanced by three levels instead of two. U.S. v. Adipietro, 983 F.2d 1468 (8th Cir. 1993).
8th Circuit finds that role enhancement was improperly based on role in collateral conduct. (430) The 8th Circuit ruled that the district court improperly based an aggravating role adjustment on defendant’s role in conduct outside the offense of conviction. At the time defendant was sentenced, circuit law interpreted section 3B1.1 to permit an enhancement only for a defendant’s role in the offense of conviction, not his role in collateral offenses. Although section 1B1.3(a)(2) was amended effective November 1, 1990 to provide that aggravating role enhancements may be based on a defendant’s role in all relevant conduct, this amendment was not in effect at the time defendant was sentenced. Judge Gibson dissented because he believed that the conduct in question was part of the offense of conviction. U.S. v. Furlow, 952 F.2d 171 (8th Cir. 1991).
8th Circuit finds that there can be more than one organizer of extensive criminal operation. (430) Defendant and codefendant organized and ran three companies which they used to fraudulently obtain $250,000. The 8th Circuit found that where a criminal enterprise is “extensive,” there can more than one organizer. Since defendant’s operation took in over a quarter of million dollars, it was properly regarded as extensive. Although defendant did not personally handle this sum of money, in evaluating whether a criminal enterprise is extensive, “the magnitude of the criminal operation in which she participated must be assessed as a whole.” Morphew v. U.S., 909 F.2d 1143 (8th Cir. 1990).
8th Circuit rules that “organizer” enhancement cannot apply where defendant is the sole participant, but here there were others. (430) The 8th Circuit agreed that the enhancement for being an “organizer” under 3B1.1 does not apply where the defendant is the sole participant in the offense. But here there were two other defendants who pleaded guilty to charges from the common indictment, and the district court found that defendant’s crime was not a single-person crime. U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit counts government informant as participant in criminal enterprise. (430) Defendant received a four-level enhancement for being a leader or organizer in a criminal enterprise involving five or more people. Defendant argued that it was improper to count a government informant as a participant in the enterprise. The 8th Circuit rejected this argument, since the informant was part of the drug dealings before becoming a government informant. U.S. v. Dyer, 910 F.2d 530 (8th Cir. 1990).
8th Circuit finds court did not improperly link defendant’s acceptance of managerial role with acceptance of responsibility. (430) Defendant argued that he was “coerced” into accepting the three level increase for his role as a manager or supervisor because his counsel agreed to accept it without his knowledge. When he voiced dissatisfaction with the increase the court warned him that he risked losing the acceptance of responsibility decrease. The 8th Circuit held that the district court did not improperly link defendant’s acceptance of the managerial role in the enterprise to acceptance of responsibility. “By accepting the increase in his offense level in the district court [defendant] acknowledged the extent of his culpability in the entire drug enterprise.” The court added that the arrangement worked to the defendant’s advantage because the district court could have justifiably applied the managerial role increase even if defendant had chosen to contest it. U.S. v. Johnson, 906 F.2d 1285 (8th Cir. 1990).
8th Circuit holds that organizer or leader need not “directly control” other individuals. (430) The 8th Circuit held that a finding that a defendant is functioning as an organizer or leader “does not necessarily mean that he is directly controlling other individuals”. Here the record showed that defendant recruited a codefendant into the enterprise and instructed him on the techniques of drug dealing. He directed the deliveries of cocaine to Chicago. He was the supplier to two other codefendants entire drug distribution scheme. Accordingly, the 8th Circuit upheld a four level upward adjustment for his role as organizer and leader. U.S. v. Johnson, 906 F.2d 1285 (8th Cir. 1990).
8th Circuit counts innocent employees in finding that defendant’s criminal activity was “otherwise extensive.” (430) The district court concluded that there were at least eight employees who “knowingly or unknowingly participated in the instant offense of which this defendant was an organizer and leader.” Defendant contended that the other employees were not “participants” under guideline § 3B1.1(b) because they were not criminally involved. Reviewing this issue de novo, the 8th Circuit upheld the enhancement. While it is true that the word “participants” refers to persons criminally responsible for their acts, a defendant’s aggravating role can also be based upon supervision of an “otherwise extensive” criminal activity. This refers to the number of persons involved in the operation, including outsiders who did not have knowledge of the facts. Judge Heaney dissented from this portion of the opinion, finding that the involvement of eight company employees was not sufficient to make defendant’s criminal activity “otherwise extensive.” U.S. v. West, 942 F.2d 528 (8th Cir. 1991).
9th Circuit holds enhancements for management role, using minor are not double counting (430) Defendant received an enhancement under § 3B1.4 for using a minor in the commission of an offense and another enhancement under § 3B1.1(c) for being a leader or organizer of the offense based on her recruitment of the minor. The Ninth Circuit held that each enhancement accounted for a different kind of harm and thus imposition of both enhancements was not impermissible double counting. U.S. v. Gonzalez, 262 F.3d 867 (9th Cir. 2001).
9th Circuit holds innocent workers are not “participants” for role enhancement. (430) Defendant’s sentence was increased by four levels under § 3B1.1(a) on the ground that he was an organizer or leader of criminal activity involving five or more participants or that was otherwise extensive. “Participant” is defined in Application Note 1 as a person who is criminally responsible for the commission of the offense. Defendant argued at sentencing that the other persons involved were innocent workers and that the activity was not “otherwise extensive” because only he and his wife were involved. Because the sentencing court made no findings on either issue, the Ninth Circuit remanded to determine if the employees were actually “participants” or the scheme was otherwise extensive. U.S. v. King, 257 F.3d 1013 (9th Cir. 2001).
9th Circuit holds customers who are solely end users of drugs are not “participants” in offense. (430) Guideline § 3B1.1(b) provides for a three-level increase if the defendant managed or supervised a criminal activity involving five or more participants. Application Note 1 defines “participant” as “a person who is criminally responsible for the commission of the offense, but need not have been convicted.” The Ninth Circuit held that “merely purchasing drugs from the seller, without more, does not qualify that customer as a participant. Rather, the facts must support an inference that the seller “knew or should have known that the customer would subsequently distribute drugs to others outside his household.” This is consistent with other circuits. See U.S. v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996); U.S. v. Baez-Acuna, 54 F.3d 634, 639 (10th Cir. 1995). Nevertheless, on the facts of this case, the Ninth Circuit found sufficient evidence that there were five participants in defendant’s criminal activity in addition to his customers. The defendant himself may be included as one of the five participants. U.S. v. Egge, 223 F.3d 1128 (9th Cir. 2000).
9th Circuit rules court failed to resolve factual disputes in finding aggravating role. (430) Defendant challenged a number of specific factual statements in the PSR relevant to the role enhancement. While some of her statements were “little more than conclusory denials of the district court’s ultimate finding,” others stated “specific facts” that conflicted with statements in the PSR. At the sentencing hearing, the district court said it believed defendant was the leader’s “lieutenant,” and then found that she was a “supervisor, manager.” The court neither resolved the disputed factual issues nor indicated they were irrelevant. On appeal, the Ninth Circuit reversed, relying on its recent opinion in U.S. v. Standard, 207 F.3d 1136 (9th Cir. 2000), where the court reversed because the district court failed to resolve controverted matters in accordance with Fed. R. Crim. P. 32. In this case, “[b]ecause the district court did not explicitly resolve those factual disputes, we have no way of knowing which disputed statements, if any, the district court relied on in making its findings.” U.S. v. Carter, 219 F.3d 863 (9th Cir. 2000).
9th Circuit refuses to consider challenge to role adjustment to which defendant agreed. (430) Defendant’s only challenge to the organizer/leader enhancement under 3B1.1 was that the district court “did not make specific findings” to support it. The Ninth Circuit held that defendant waived his right to challenge the enhancement when he agreed to it and failed to present the issue in the district court. Because he agreed below, “he cannot now complain that the district court should have made additional findings.” U.S. v. Flores, 172 F.3d 695 (9th Cir. 1999).
9th Circuit says court need not make specific findings for upward role adjustment. (430) Defendant argued that the district court did not make any specific factual findings as to his leadership role. The Ninth Circuit agreed, but relied on U.S. v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995), for the proposition that it was not required to do so because a “district court need not make specific findings of fact in support of an upward role adjustment.” U.S. v. Govan, 152 F.3d 1088 (9th Cir. 1998).
9th Circuit finds no double counting in aggravating role and more than minimal planning. (430) Defendant argued that upward adjustments for both aggravating role and more than minimal planning constituted improper double counting. The 9th Circuit found the argument was foreclosed by U.S. v. Kelly, 993 F.2d 702, 704 (9th Cir. 1993), which held that imposition of an adjustment for both aggravating role and more than minimal planning does not constitute double counting. U.S. v. Camper, 66 F.3d 229 (9th Cir. 1995).
9th Circuit reviews role enhancement for clear error; does require specific findings. (430) The Ninth Circuit held that the district court’s determination that a defendant was an “organizer or leader” is reviewed for clear error. Relying on U.S. v. Rigby, 906 F.2d 392 (9th Cir. 1990), the court said that “the district court need not make specific findings of fact in support of an upward role adjustment.” U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit upholds aggravating role where court adopted the government’s argument. (430) There was sufficient evidence in the record to show that defendant was a leader or organizer of the conspiracy and that he exercised control over other members of the conspiracy. Defendant failed to present evidence controverting these facts, or to object to the district court’s failure to make specific factual findings in support of its conclusion. Relying on its opinion in U.S. v. Peters, 962 F.2d 1410, 1415 (9th Cir. 1992), the 9th Circuit held that under these circumstances, specific findings of fact are not required. It was sufficient that the court adopted the government’s argument and that defendant had an opportunity to present evidence to the contrary. U.S. v. Leung, 35 F.3d 1402 (9th Cir. 1994).
9th Circuit says defendant need not know or exercise control over all five participants. (430) The district court found that defendant played a leadership role in the crime of murder for hire and that the crime involved five or more participants, justifying a four level increase under guideline §3B1.1(a). On appeal, defendant argued that he had no knowledge or control of two of the participants and could not foresee that they would become involved. The 9th Circuit affirmed, noting that §3B1.1 does not require the defendant to know of or exercise control over all of the participants. Rather, the section requires a finding only that he was an “organizer or leader” of a “criminal activity that involved five or more participants.” Moreover, even though one of the defendants was acquitted, he could still be a participant. U.S.S.G. §3B1.1 application note 1. U.S. v. Dota, 33 F.3d 1179 (9th Cir. 1994).
9th Circuit says argument over role did not raise factual dispute, so findings not required. (430) If defendant alleges a factual inaccuracy in the presentence report, the court is required either to make a finding as to the accuracy of the challenged factual proposition or to indicate that it is not taking it into consideration. Here, however, defendant’s claims “were not objections to the accuracy of the presentence report, but rather were claims of the existence of evidence which was not presented at trial, which might have led to the conclusion the [defendant] played a minor role in the offense.” The district court considered these, but rejected them. Therefore, it was proper for the court simply to adopt the presentence report’s finding as to defendant’s role. U.S. v. Hanoum, 33 F.3d 1128 (9th Cir. 1994).
9th Circuit says fact that defendant was more culpable than others was not sufficient for “role” adjustment. (430) The 9th Circuit said that for an increase under § 3B1.1 “there must be evidence to support a finding that the defendant occupied one of the four specified roles, not merely that the defendant was more culpable than others who participated in the crime.” In this case, the judge made no finding that defendant controlled or organized the other members of the conspiracy. The inference that she must have been an organizer because of her knowledge of ATM service procedures was “untenable.” The judge did not purport to make such an inference but simply applied a “but for” test, i.e. but for the defendant’s knowledge and participation, the crime could not have been completed. The sentence was reversed. U.S. v. Harper, 33 F.3d 1143 (9th Cir. 1994).
9th Circuit permits enhancement for both role and more than minimal planning. (430) Relying on U.S. v. Kelly, 993, F.2d 702, 705 (9th Cir. 1993), the court reaffirmed that it is proper to apply an enhancement for organizer role as well as an enhancement for more than minimal planning. U.S. v. Licciardi, 30 F.3d 1127 (9th Cir. 1994).
9th Circuit sustains 4 level increase for role in “otherwise extensive” fraud. (430) Defendant was convicted of several fraud and money laundering counts arising out of his organization and control of two companies involved in fraudulent money lending and laundering activities. Without objection by defendant, the district court increased his offense level under § 3B1.1(a), finding he was an organizer or leader of an otherwise extensive criminal enterprise. The Ninth Circuit reviewed the issue under a plain error standard and upheld the 4 level increase. Defendant was the final decision maker in the corporate group and was the mastermind. The activity involved 60 or more knowing or unwitting employees or outside accountants and untold other outsiders. It was not necessary to find 5 or more criminally responsible participants where the activity was “otherwise extensive.” U.S. v. Rose, 20 F.3d 367 (9th Cir. 1994).
9th Circuit says absence of specific finding that defendant was organizer did not invalidate enhancement. (430) The district court accepted the government’s argument that the defendant did not submit any rebuttal evidence and the record supported the conclusion that the defendant designed and led the scheme. Accordingly, the enhancement under U.S.S.G. Section 3B1.1 for being an “organizer” was not clearly erroneous. U.S. v. Peters, 962 F.2d 1410 (9th Cir. 1992).
9th Circuit holds that manager must have managed at least one other criminally responsible person. (430) The 9th Circuit held that “in order for a defendant to receive an adjustment under 3B1.1(b) for his role as a manager or supervisor, the defendant must have managed or supervised at least one other participant–that is, a person who was criminally responsible for the commission of the offense.” A person may be deemed criminally responsible even though that person has not been convicted. In the present case, the district court found that defendant’s concealment of the exports required three shipping companies, three storage facilities, at least five knowing participants, and numerous unknowing participants. Since the district court did not find that any of these persons were criminally responsible, the sentence was vacated and remanded to make the required determination. U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).
9th Circuit finds “more than minimal planning” and aggravating role not double counting in fraud case. (430) In determining the offense level for defendant’s steroid counterfeiting conviction, the district court increased for both “more than minimal planning” and aggravating role. The 9th Circuit affirmed application of both enhancements finding it did not result in impermissible double counting. The increase for “more than minimal planning” results from the complexity of the overall scheme and the aggravating role increase is a result of defendant’s role within the group of conspirators. The crime of fraud does not automatically include “more than minimal planning” or aggravating role. U.S. v. Kelly, 993 F.2d 702 (9th Cir. 1993).
9th Circuit finds defendant can have leadership role without supervising all 5 participants. (430) Defendant took the position that as a matter of law he could not be considered an organizer or leader because he did not supervise all 5 participants in the reverse sting drug conspiracy. The 9th Circuit rejected the claim, finding the increase would be proper as long as defendant supervised at least one of the participants. The fact that a co-defendant occupied a leadership role did not preclude finding that defendant was also an organizer or leader. U.S. v. Barnes, 993 F.2d 680 (9th Cir. 1993).
9th Circuit upholds managerial role enhancement for selling drug paraphernalia. (430) Defendant pleaded guilty to selling drug paraphernalia in violation of 21 U.S.C. section 857 (now 21 U.S.C. section 863). On appeal, he argued that the judge erred in enhancing his sentence for his managerial role because the statute is vague as applied with respect to sales of goods to which he did not plead guilty and which were not necessarily drug paraphernalia. The 9th Circuit declined to reach the argument, holding that the enhancement was properly based on the one sale to which the defendant pleaded guilty. The enhancement is appropriate where there is only a single criminal transaction and where only two participants have been identified. U.S. v. Sandsness, 988 F.2d 970 (9th Cir. 1993).
9th Circuit remands where court failed to state that it accepted the probation officer’s recommendation. (430) There was nothing in the record to indicate whether or not the district court accepted the probation officer’s recommendation to enhance the base offense level for defendant’s leadership role. “Although evidence exists that would satisfy the requirements of section 3B1.1(a), the district court’s utter failure to perform the requisite inquiry of evaluating that evidence on the record requires us to remand this issue.” U.S. v. Harrison-Philpot, 978 F.2d 1520 (9th Cir. 1992).
9th Circuit holds that amendment to 3B1.1 was a mere “clarification” and was therefore retroactive. (430) Effective November 1, 1990, the introductory commentary to Part B of Chapter 3 of the Guidelines was amended to state that the defendant’s role in the offense is to be based on all relevant conduct, and not solely on the count of conviction. Defendant argued that using this commentary to calculate his sentence for crimes committed before November 1990 violated the ex post facto clause. Relying on prior circuit precedent, the 9th Circuit rejected the argument, stating that the introductory commentary “merely clarified” section 3B1.1, and therefore may be applied retrospectively. U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992).
9th Circuit holds there can be more than one leader or organizer. (430) The 9th Circuit ruled that the fact that two other persons played a leadership role in the initial phases of the conspiracy “is not dispositive.” Commentary Note 3 to § 3B1.1 says that “there can be more than one leader or organizer.” Here the defendant played a “decisive” role in the decision to ship the marijuana through Mexico, rather than directly to the United States.” It was he who had connections with Mexican customs officials and underworld figures who would assure transportation in the United States.” The district court’s finding that defendant was an organizer or leader was not clearly erroneous. U.S. v. Monroe, 943 F.2d 1007 (9th Cir. 1991).
9th Circuit, en banc, holds that aggravating role adjustment only applies when the offense is committed by more than one criminally responsible person. (430) Reversing the panel opinion in U.S. Anderson, 895 F.2d 641 (9th Cir. 1990), the en banc 9th Circuit joined the 6th, 7th and 11th Circuits in holding that the aggravating role adjustment in guideline § 3B1.1 “only applies when the offense is committed by more than one criminally responsible person.” Thus, the district court erred in finding that defendant was an organizer, leader, supervisor or manager of the bank robbery where the only other participant was the getaway driver who did not know that defendant was robbing the bank until after they had arrived back at the house. U.S. v. Anderson, 942 F.2d 606 (9th Cir. 1991) (en banc), overruled on other grounds by Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
9th Circuit rules that organizer or leader need not directly manage all five codefendants. (430) Defendant argued that guideline § 3B1.1 did not apply to his case because he did not directly manage all five codefendants. The 9th Circuit rejected the argument, noting that 3B1.1 only requires that the activity involve five or more participants. The commentary also recognizes that there can be more than one organizer or leader. The court upheld the four-level adjustment in this case. U.S. v. Smith, 924 F.2d 889 (9th Cir. 1991).
10th Circuit reviews defendant’s role in offense for clear error. (430) Defendant pled guilty to a methamphetamine conspiracy. He challenged a § 3B1.1(a) leadership enhancement. The government cited cases suggesting that the court’s conclusion that a defendant is a leader is a legal question, and therefore reviewed de novo. Defendant cited cases stating that the leadership determination is a factual finding subject to the clearly erroneous standard of review. Resolving the conflict, the Tenth Circuit held that an organizer or leadership enhancement should be reviewed for clear error rather than given de novo review. The role of a defendant is “among the sophisticated factual determinations a district court makes which depend upon an assessment of the context of the crime.” U.S. v. Cruz-Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit says organizer and more than minimal planning enhancement was not double counting. (430) Following its decision in U.S. v. Smith, 13 F.3d 1421 (10th Cir. 1994), the 10th Circuit held that enhancements under § 2B1.2(b)(4)(B) for more than minimal planning and under §3B1.2(c) for being an organizer or supervisor did not constitute double counting. U.S. v. Mandilakis, 23 F.3d 278 (10th Cir. 1994).
10th Circuit finds more than minimal planning and role enhancement was not double counting. (430) The 10th Circuit, rejecting the 6th Circuit and following the majority of circuits that have addressed this issue, concluded that a more than minimal planning enhancement under § 2F1.1(b)(2) and a role in the offense enhancement under § 3B1.1 did not constitute impermissible double counting. The enhancement for more than minimal planning is intended to distinguish between relatively simple crimes and more sophisticated ones, while the role in the offense enhancement addresses concerns about the relative responsibilities of those involved in the offense. U.S. v. Smith, 13 F.3d 1421 (10th Cir. 1994).
10th Circuit holds role enhancement requires a second criminally responsible participant. (430) The district court enhanced defendant’s sentence under 3B1.1(c) based in part on defendant’s control over a government informant. Though the district court acknowledged that the informant would not count as a criminally responsible “participant” as required by 3B1.1(a)-(b), it concluded that defendant’s relationship with the informant could be considered under 3B1.1(c), which does not use the term “participant.” The 10th Circuit disagreed, holding that the terms “organizer, leader, manager, or supervisor” imply the presence of more than one criminally responsible participant. However, the court affirmed because the district court’s findings with respect to defendant’s dealing with other participants supported the adjustment independently. U.S. v. Bauer, 995 F.2d 182 (10th Cir. 1993).
10th Circuit reviews enhancement for organizer role de novo. (430) Defendant challenged a four-level enhancement for his organizer role in the offense under section 3B1.1(a). The 10th Circuit held that since the applicability of the guideline was an issue of law, its review would be de novo. U.S. v. Smith, 951 F.2d 1164 (10th Cir. 1991).
10th Circuit rules it was plain error to consider relevant conduct in determining defendant’s aggravating role. (430) Defendant claimed for the first time on appeal that the district court improperly based its an aggravating role adjustment on conduct outside the offense of conviction. Under circuit precedent, an adjustment under section 3B1.1 could only be based on defendant’s role in the offense of conviction. The 10th Circuit held that the district court’s erroneous consideration of defendant’s relevant conduct in making the aggravating role adjustment constituted “plain error,” which was reversible on appeal despite defendant’s failure to raise the issue below. U.S. v. Saucedo, 950 F.2d 1508 (10th Cir. 1991), abrogated on other grounds by Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
10th Circuit orders court to reconsider role in offense based solely on offense of conviction. (430) Defendant contended that the district court improperly considered conduct outside the offense of conviction to impose a supervisory role enhancement. The government agreed that the adjustment must be based upon defendant’s role in the offense of conviction, but contended that there was sufficient evidence in the record based upon defendant’s role in the offense of conviction to support the enhancement. Since the case was being remanded on other grounds, the 10th Circuit ordered the district court to reconsider its determination, even though there was sufficient evidence to support the enhancement based solely on the offense of conviction. The district court sentenced defendant without the benefit of U.S. v. Pettit, 903 F.2d 1336 (10th Cir. 1990), which held that the factual basis for such an adjustment must come from a defendant’s role in the offense of conviction. U.S. v. Padilla, 947 F.2d 893 (10th Cir. 1991).
10th Circuit finds that defendant’s suppliers and customers were not participants in criminal activity. (430) Defendant was involved in a drug distribution conspiracy with three others. The 10th Circuit found that it was error for the district court to include defendant’s two suppliers and his 100 unidentified customers as “participants” in defendant’s criminal activity, for the purpose of determining that defendant was a leader of a criminal activity that involved five or more participants or was otherwise extensive. In order for a supplier or customer for personal use to be a participant, the government must “prove at least an interdependence between the defendant and the supplier or customer that would support an inference that the supplier or customer for personal use is answerable to the defendant.” However, the court found that the drug conspiracy could be considered “otherwise extensive,” because it involved defendant and three subordinates, and relied upon the knowing services of at least two suppliers to supply hundreds of customers over a three week period. Therefore, the district court did not err in determining that defendant was an organizer or leader under guideline § 3B1.1(a). U.S. v. Reid, 911 F.2d 1456 (10th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit rules that “role in offense” guideline is not unconstitutionally vague. (430) The 10th Circuit rejected defendant’s argument that guideline § 3B1.1(c) is unconstitutionally vague. The court concluded that “terms such as organizer, leader, manager, or supervisor are terms that have well-accepted, ordinary meanings and that the court’s application of those terms to the facts of this case was within the scope of their ordinary meanings.” The court ruled that in order to be a supervisor, “one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given.” The court noted however, that the district court’s inclusion of customers as possible supervised persons was erroneous. The court found the error harmless, because the defendant did supervise at least one other person. U.S. v. Backas, 901 F.2d 1528 (10th Cir. 1990).
11th Circuit says court must consider relevant conduct in determining role in the offense. (430) Defendant lied to the court about his financial status, and was convicted of perjury. Several people helped defendant hide his assets, but the district court refused to impose a leadership enhancement under § 3B1.1 because defendant acted alone in committing the perjury. The 11th Circuit held that a court must consider a defendant’s relevant conduct in determining whether to apply a § 3B1.1 enhancement. In deciding whether individuals are participants, the court must consider both the criminal acts themselves and the individuals’ involvement in the events surrounding the criminal act. Here, as many as five people assisted defendant by imparting an air of legitimacy to his perjurious statements. The district court should have considered these events before rejecting the § 3B1.1 enhancement. U.S. v. Holland, 22 F.3d 1040 (11th Cir. 1994).
11th Circuit rules role adjustment must be based solely on role in offense of conviction. (430) The 11th Circuit held that an aggravating role adjustment under guideline section 3B1.1 must be based on a defendant’s role in the offense of conviction, rather than other relevant criminal conduct. Since defendant was convicted only of possession of marijuana with intent to distribute, which by its nature, involves no more than one participant, the three level enhancement under section 3B1.1(b) was improper. U.S. v. Rodgers, 951 F.2d 1220 (11th Cir. 1992), amended, 972 F.2d 1253 (11th Cir. 1992).
11th Circuit remands to district court to clarify standard of proof in supervisor enhancement. (430) Defendant contended that the district court used the wrong standard of proof in determining that he was an organizer, leader, manager or supervisor of the criminal activity. The court concluded that “the evidence [was] sufficient to show that at least two people were possibly working for [defendant].” The 11th Circuit found that it could not tell from the court’s language whether it utilized the proper standard, and thus remanded for resentencing to ensure the proper preponderance of the evidence standard was applied. U.S. v. Cornog, 945 F.2d 1504 (11th Cir. 1991).
11th Circuit upholds leadership enhancement based upon defendant’s role in offense of conviction. (430) The government contended that the district court should have increased defendant’s offense level by three based upon his role as a high level manager of a criminal enterprise involving five or more participants. Defendant only received a two level increase based upon his role as an organizer of criminal activity involving less than five participants. The 11th Circuit upheld the district court’s determination. Although defendant may have been involved with other individuals in other criminal activity, a sentencing court may only focus upon a defendant’s role in the offense of conviction rather than other criminal conduct in which he may have engaged. Defendant’s offense of conviction was money laundering, in which he acted with only two other individuals. U.S. v. De La Rosa, 922 F.2d 675 (11th Cir. 1991).
11th Circuit holds defendant need not take greater share of profits in order to be manager of drug conspiracy. (430) Defendant contended that he was merely a subordinate of the leader of a drug ring, and that under the background commentary of guideline § 3B1.1, a manager or supervisor must profit more from the criminal enterprise than the other participants, be a greater danger to the public, or be more likely to be a recidivist. The 11th Circuit upheld a three-point leadership enhancement. Defendant’s subordinate role to the conspiracy’s leader did not absolve him of the supervisory role he played in coordinating and managing the delivery and transportation of the marijuana from Jamaica into the United States. Defendant helped his co-conspirators plan the operational aspects of the smuggling efforts. He made unilateral decisions regarding landing and loading locations and the timing of such trips. Moreover, defendant misread the commentary background of § 3B1.1. U.S. v. Jones, 933 F.2d 1541 (11th Cir. 1991).
11th Circuit reviews district court’s finding as to “role in offense” under the “clearly erroneous” standard. (430) The 11th Circuit concluded that the district court was not clearly erroneous in finding that defendant was not entitled to a reduction in his offense level for being a minimal or minor participant. The court found that the sentencing judge placed the burden of persuasion on the government, but found that the evidence was such that without more from the defendant, it could not conclude that the defendant was entitled to any reduction in the offense level. The court found that this ruling was not “clearly erroneous.” U.S. v. Taxacher, 902 F.2d 867 (11th Cir. 1990).
D.C. Circuit reverses sentence because judge may have relied on erroneous conviction in setting guidelines. (430) The D.C. Circuit reversed defendant’s conviction for employing a minor to violate the narcotics laws. Even though his other sentences were concurrent, the court reversed them because “it appears from the record that [the district judge] may have relied upon defendant’s conviction for employing a minor when she determined that defendant’s sentence should be bumped up three offense levels because of his aggravating role as a manager or supervisor.” The court expressed no opinion as to whether such an increase under U.S.S.G. § 3B1.1 would be appropriate on remand. U.S. v. McDonald, 877 F.2d 91 (D.C. Cir. 1989).
Ohio District Court rules that defendant cannot be an “organizer” if he is the only culpable person. (430) Following anonymous tips, defendant was discovered to be dumping hazardous wastes at a county airport. The government asked for a four level increase in offense level claiming defendant was an “organizer” of a criminal activity. The district court refused to grant the increase because there was no proof of culpability presented on the part of the workers who dumped the waste. An increase for “organizer” status cannot be granted if defendant was the only culpable person. U.S. v. Bogas, 731 F.Supp. 242 (N.D. Ohio 1990).
Commission resolves split in circuits over definition of “manager.” (430) To resolve a split in the circuits, the Sentencing Commission on effective November 1, 1993, amended the Commentary to section 3B1.1 to state that “[a]n upward departure may be warranted . . . in the case of a defendant who did not organize, lead, manage or supervise another participant but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.”