U.S. v. Fuller

• Decision Date: 06 February 1990
• Docket Number: No. 89-1880,89-1880
• Citation: 897 F.2d 1217
• Parties: UNITED STATES of America, Appellee, v. Leonard R. FULLER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1217

897 F.2d 1217

UNITED STATES of America, Appellee, v. Leonard R. FULLER, Defendant, Appellant.

No. 89-1880.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 1990.

Decided March 12, 1990.

James Michael Merberg, Boston, Mass., for defendant, appellant.

Deborah C. Sharp, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief for U.S.

Before CAMPBELL, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

Leonard Fuller appeals from a judgment of the United States District Court for the District of New Hampshire sentencing him to 63 months imprisonment for the crime, to which he pleaded guilty, of conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846. The issue on appeal is whether the district court erred in finding that Fuller was a leader, organizer, manager, or supervisor in the commission of drug distribution crimes, so as to subject his sentencing level to an upward adjustment by two levels. Because we conclude that the district court's finding was clearly erroneous, we vacate the sentence and remand for resentencing.

BACKGROUND

The government's case against Fuller was based primarily on information provided by a confidential informant, William Morley. Morley met Fuller through a mutual friend, Andy Lebel, sometime in the fall of 1987. From the fall of 1987 to the spring of 1989, Morley made several purchases of marijuana from Fuller. Morley has advised the government that in the fall of 1987, he received 15 pounds of marijuana and Lebel received 5 pounds from Fuller. Morley reported that on another occasion, he delivered Fuller's marijuana in a truck to Fuller's house in Freedom, New Hampshire. Morley further reported that the next day, he helped Fuller unload the marijuana, from which he purchased 289 pounds, and that he observed an individual appear in a car with Colorado license plates and receive approximately 500 pounds of marijuana.

Sometime in 1989, Morley began operating as a confidential informant for the Drug Enforcement Administration ("DEA") and in this capacity, he went to Fuller and offered to purchase marijuana. On April 13, 1989, Fuller provided Morley with approximately 75 pounds of marijuana. Morley turned this over to the DEA and reported that he had observed an additional 100 pounds of marijuana at Fuller's residence in Medfield, Massachusetts. Fuller was arrested by federal authorities on April 16, 1989.

On April 14, 1989, Massachusetts police officers searched Fuller's residence in Medfield and found approximately 35 pounds of marijuana contained in several containers, 27 tubes of silicon, 3 thermos coolers, a caulking gun, and a scale. After Fuller's arrest on April 16, Massachusetts officials found approximately 94 pounds of marijuana in Fuller's car, which was registered in the name of Fuller's girlfriend.

On May 3, 1989, Fuller was indicted in the United States District Court for the District of New Hampshire on charges of engaging in a criminal enterprise, conspiracy to distribute over 100 kilograms of marijuana, and possession with intent to distribute over 100 kilograms of marijuana, in violation of 21 U.S.C. Secs. 848, 846, and 841(a). The government also sought forfeiture of all proceeds from the illegal activity. On June 27, 1989, Fuller entered into a plea bargain with the government, under which he pled guilty to one count of conspiracy to distribute approximately 370 pounds (168 kilograms) of marijuana in violation of 21 U.S.C. Sec. 846. Pursuant to the agreement, Fuller also agreed to pay the government $120,000 in satisfaction of any further criminal or civil forfeiture liability.

Following the guilty plea, a presentence investigation report was prepared by a United States probation officer. The probation officer concluded that Fuller had been a "leader, manager, or facilitator" of criminal activity. The officer therefore recommended an upward adjustment by Fuller's base offense level was determined to be 26, which applies to offenses involving 100-399 kilograms of marijuana. ¹ See Sentencing Guidelines Sec. 2D1.1(a)(3) and Drug Quantity Table. His offense level was reduced two levels, pursuant to section 3E1.1(a), for accepting responsibility for his criminal conduct. The offense level was then increased by two levels for conduct as an "organizer, leader, manager, or supervisor," under section 3B1.1(c). Accordingly, the total offense level was 26. The sentencing range for level 26 is 63-78 months imprisonment. See Sentencing Guidelines Part 5A (Sentencing Table). The district court sentenced Fuller to the lower end of the range, 63 months in prison, followed by 48 months of supervised release.

two levels of Fuller's sentencing offense level, pursuant to section 3B1.1(c) of the Federal Sentencing Guidelines, which provides for a two level increase if the defendant was an "organizer, leader, manager, or supervisor" of criminal activity. At the sentencing hearing, the government recommended, pursuant to the plea agreement, that the 2 level upward adjustment not be made. However, the district court rejected the government's recommendation and adopted that of the probation officer, making a two level upward adjustment. The court found that Fuller had supplied substantial quantities of marijuana to more than one person and that Morley had on one occasion assisted Fuller in unloading a shipment of marijuana from which Morley purchased a large quantity and that on another occasion Morley assisted Fuller in transporting and unloading a shipment of marijuana, a portion of which was to be purchased by Morley. The court ruled that these findings justified the conclusion that Fuller was an organizer or manager.

DISCUSSION

The relevant sections of the Guidelines provide:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by three levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any other criminal activity other than described in (a) or (b), increase by 2 levels.

Sentencing Guidelines Sec. 3B1.1.

Fuller argues that the district court erred in holding that he was an "organizer, leader, manager, or supervisor" within the meaning of section 3B1.1(c). He argues that there was no evidence that he ever employed or recruited any persons to assist him with his unlawful activity and that he never organized or directed other persons in criminal activities. He claims that the evidence showed no more than that he had distributed marijuana on six occasions and that the distributions were, with one exception, to the same person--Morley. He also notes that there was no evidence of anyone referring to Fuller as a leader or boss and that the evidence showed that he was merely one of several sources of supply for Morley, who had been engaged in extensive drug trafficking before meeting Fuller.

The government argues that the court reasonably concluded that Fuller's possession of coolers containing large quantities of marijuana, some of it sealed, as well as other drug paraphernalia, justified an inference that he was distributing to several persons. The government also contends that the facts that Fuller profited from his dealings and stored and transported the marijuana in his own car further support the finding that he was an organizer or manager.

Since the district court's determination that Fuller was an "organizer, leader, manager, or supervisor" involves application of the Guidelines to a particular set of facts, we will reverse this finding only if clearly erroneous, see United States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989), or if premised on misapprehension of the applicable law. See 18 U.S.C. Sec. 3742(f)(1).

Although the Guidelines do not specifically define "organizer, leader, manager, or supervisor," the commentary to the Guidelines provide some basis for discerning when an upward adjustment for an aggravated role under section 3B1.1(c) is appropriate. ² First, the comments clearly indicate that section 3B1.1 is intended to apply only to criminal activity engaged in by more than one participant. The introductory commentary to Chapter 3, Part B of the sentencing guidelines states that "[w]hen an offense is committed by more than one participant, Sec. 3B1.1 or Sec. 3B1.2 (or neither) may apply." The "Background" comment to section 3B1.1 states, "This section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense." (emphasis added). Section 3B1.4 of the Guidelines provides, in any case other than those specified in Part 3B, "no adjustment is made for the role in the offence." The commentary to this section states, "Many offenses are committed by a single individual or by individuals of roughly equal culpability so that none of them will receive an adjustment under this Part." Courts have accordingly held that section 3B1.1 applies only to criminal activity engaged in by more than one participant. See, e.g., United States v. William M. Carroll, 893 F.2d 1502 at 1511 (6th Cir.1990) ("We hold that enhancement pursuant to Sec. 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed."); United States v. Mejia-Orosco, 867 F.2d 216, 220 (5th Cir.) ("The introductory statement to this part of the guidelines clearly indicates that there must be more than one participant in the...