Sentencing Partners (July) 2013 - Part V

Posted by Chris Morales on Wed, Aug 28, 2013 @ 11:05 AM

Sentence Adjustments
Chapter 3

United States v. Weaver
2013 WL 2402851 (7th Cir. 2013)
Three-level enhancement for supervisory role improperly applied

While investigating a methamphetamine conspiracy operating in Indianapolis, the FBI learned that the defendant was supplying (fronting) Wilkey and Sysine with two ounces, two or three times a week. Wilkey and Dale, with help from Wilkey’s girlfriend and Dale’s boyfriend, resold the methamphetamine from their homes. All five were charged with conspiracy and the defendant pled guilty without a plea agreement. The PSR did not say how Weaver obtained the methamphetamine he fronted to Wilkey and Dale, but in a summary of the facts claimed that the defendant “controlled how much and how often” Wilkey and Dale “ would receive methamphetamine” and “instructed them to promptly sell it so he could distribute more to them” and at times he “would pressure” Wilkey and Dale to make sales. Based on this summary, the PSR recommended (without explanation) a four-level upward adjustment under §3B1.1 (a), which applies to a defendant who was “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” A detective testified that the defendant did not control to who or at what price Wilkey and Dale sold the fronted drugs. The district court declined to apply a four-level increase, but did assess three levels under §3B1.1 (b) (“manager or supervisor”) , finding that the defendant exercised decision-making authority in the conspiracy. On appeal, the defendant argued that he was not a manager or supervisor and the Seventh Circuit agreed, finding that the defendant did not provide sufficient “ongoing supervision and coercive authority to warrant the enhancement. He simply fronted methamphetamine to Wilkey and Dale, urging them to sell it quickly and pay him. Yet supplying drugs and negotiating the terms of their sale do not by themselves justify a Section 3B1.1 increase, for these things do not indicate that the person who does them has a greater degree of responsibility for putting together the drug operation or a particular deal than anyone else involved, including the customer.” Under the facts in this case, the government did not offer any evidence that [the defendant] assumed quintessential managerial or supervisory task of the type we have concluded warrant an increase. For those reasons, we Vacate the judgement and Remand the case for resentencing.”

United States v. Berry
2013 WL 3198609 (10th Cir. 2013)
Commercial truck driving was special skill warranting enhancement under §3B1.3

The defendant, a commercial truck driver, stopped at the Gallup, New Mexico port of entry in his tractor-trailer. Because his logbook had no information about the cargo or the total miles logged, a “Level 2 safety inspection” was performed and officers ultimately found eight boxes containing thirty-three bundles of marijuana. The defendant was arrested and charged with possession with intent to distribute 100 kilograms or more of marijuana. He was released on bond, but failed to appear for his trial and remained a fugitive until he was located in Canada. The PSR calculated a sentencing range of 78 to 97 months. The government objected, arguing that the sentence should include a two-level enhancement under §3B1.3 because the defendant used a special skill - commercial truck driving - to facilitate the commission the offense. The district court, decided the “special skill” adjustment applied, increasing the sentencing range 97 to 121 months and sentenced him to 97 months. The Tenth Circuit affirmed the enhancement, relying on United States v Lewis, 41 F.3d 1209 (7th Cir. 1994) and United States v. Mendoza, 78 F.3d 460 (9th Cir. 1996). The court explained that to impose the adjustment, “the court must find two things: (1) [d]efendant possessed a special skill . . . And (2)[d]efendant used that skill . . . to significantly facilitate the commission or concealment of the offense.” “Special skill” means “a skill not possessed by the members of the general public and usually required substantial education, training or licensing. Examples include pilots, lawyers, doctors, accountants, chemists, and demolition experts.” Further, “the skill must be more than the mere ability to commit the offense.” In this case, the defendant’s commercial truck driving significantly facilitated the commission of the offense; thus, the only question was whether commercial truck driving was a special skill. In holding that it was a “special skill” the court noted that the defendant had almost five years of truck driving experience and had received his license after a year of truck-driving school and on-the-job training. “This training is small potatoes compared to the training necessary to become a pilot, lawyer, doctor, accountant, chemist or demolition expert - the profession listed in the application note to the guideline. But the listed professions are mere examples of special skills; they are by no means an exhaustive list. Moreover, a defendant need not complete formalized educational or licensing requirements to possess a special skill; it can also come from experience or self-teaching.” “Under these circumstances, the ‘special skill’ finding was proper.”

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys 

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We would like to thank our friends Joaquin & Duncan, L.L.C for sharing this information with us. 

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Tags: defendant, drugs, marijuana, evidence, testified, arrested, criminal activity