United States v. Burnley, 021921 FED4, 19-4176

Docket Nº:19-4176
Opinion Judge:GREGORY, CHIEF JUDGE
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WAYNE THOMAS BURNLEY, Defendant-Appellant.
Attorney:Neal Lawrence Walters, SCOTT KRONER, PLC, Charlottesville, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Thomas T. Cullen, United States Attorney, R. Andrew Bassford, Assistant United States Attorney, OFFICE OF THE UNITED STA...
Judge Panel:Before GREGORY, Chief Judge, KING, and DIAZ, Circuit Judges.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

WAYNE THOMAS BURNLEY, Defendant-Appellant.

No. 19-4176

United States Court of Appeals, Fourth Circuit

February 19, 2021

Argued: December 11, 2020

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:17-cr-00013-NKM-1)

ARGUED:

Neal Lawrence Walters, SCOTT KRONER, PLC, Charlottesville, Virginia, for Appellant.

Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

ON BRIEF:

Thomas T. Cullen, United States Attorney, R. Andrew Bassford, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before GREGORY, Chief Judge, KING, and DIAZ, Circuit Judges.

GREGORY, CHIEF JUDGE

While in prison for fleeing a traffic stop, the defendant discussed his drug business with friends and family on the outside. His communications attracted the attention of a federal narcotics trafficking investigation. He was eventually indicted and convicted on conspiracy charges as part of a sweeping crackdown on the methamphetamine supply in Virginia. At sentencing, the district court imposed three enhancements. The defendant now challenges its application of the enhancement for reckless flight under U.S.S.G. § 3C1.2 and the "manager or supervisor" leadership enhancement under U.S.S.G. § 3B1.1(b). Though we find no error in the district court's reckless flight conclusion, we find that its explanation for applying the leadership enhancement precludes meaningful appellate review. We vacate and remand with instructions.

I.

Wayne Burnley was a methamphetamine dealer in central Virginia. Burnley was driving in Nelson County late one night in April 2015, accompanied by a friend, when officers pulled him over for running a stop sign. Deputy Sergio Sanchez and Officer Brian Sites of the Nelson County Sheriff's Office asked the passenger to exit the vehicle. As the officers spoke with the passenger, Burnley fled the scene, rolling over Officer Sites's foot as he pulled away. A high-speed pursuit followed on winding country roads. Burnley turned onto a logging road, leading to a collision of the vehicles, and the chase briefly continued until Burnley ended up stuck in an embankment.

Burnley was subsequently convicted on state charges of eluding the police and sentenced to five years of incarceration. In letters, emails, and phone calls from prison, Burnley communicated with his family, friends, and associates from the drug trade about their ongoing criminal activities. Local law enforcement passed along Burnley's messages to DEA agents who were investigating organized drug trafficking in the region.

To broadly summarize, the communications revealed Burnley's attempts to continue earning money while incarcerated and to secure the well-being of certain love interests and family members. Burnley's primary asset was his connection to Alonso Campos-Zacharias, known only as "Mario" to the conspirators. As Burnley's supplier prior to his arrest, Mario was able to source bulk quantities of methamphetamine from Mexico. From prison, Burnley attempted to connect Mario with trusted friends on the outside in exchange for a cut of the resulting proceeds. Burnley attempted to "hook up" at least three contacts this way: his cousin, his ex-girlfriend, and his niece. In each instance, Burnley was denied his end of the bargain. At one point, Mario and Burnley's cousin were distributing more methamphetamine together than Burnley ever had. They agreed to deceive Burnley about their dealings because they feared he was talking too much from prison. Much of Burnley's writings consist of his grievances against those who have not paid him his due, alongside his attempts to cajole them into doing right by him.

Ultimately, federal charges were filed against over a dozen defendants connected along the methamphetamine supply chain in Virginia, including Burnley and several of his contacts. Burnley and three co-defendants were charged with conspiring to possess, with intent to distribute, 500 grams or more of methamphetamine from January 2014 to December 2017. Burnley alone proceeded to trial. At trial, Deputy Sanchez testified regarding the initial arrest, DEA Agent Todd Farris testified regarding the federal investigation, and Burnley took the stand himself. Seven additional witnesses-many of them among the cast of characters from the prison letters, all of them implicated by the investigation-testified against Burnley.

The jury found Burnley guilty. At sentencing, the pre-sentence report ("PSR") calculated a base offense level of 34 and recommended three enhancements: a three-point leadership enhancement under U.S.S.G. § 3B1.1(b) for acting as a "manager or supervisor"; a two-point enhancement for obstruction of justice under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of death or injury while fleeing the police; and a two-point enhancement for obstruction of justice under U.S.S.G. § 3C1.1 for attempting to impede the administration of justice. This resulted in a total offense level of 41 and, with Burnley in criminal history category VI, a guidelines range of 360 months to life.

Burnley objected to the leadership enhancement and the flight-based obstruction enhancement. The district court overruled his objections, adopting the PSR's calculation. The court sentenced Burnley to 300 months of imprisonment, minus the 36 months served in state prison, for a total term of 264 months; a downward variance. Nevertheless, the sentence was the longest of any conspirator. Burnley timely appealed.

II.

First, Burnley argues that the district court erred in imposing the three-point leadership enhancement for acting as a manager or supervisor of criminal activity. He contends that the evidence does not support a finding that he managed or supervised anyone. Second, Burnley challenges the district court's finding that his flight from the police created a substantial risk of death or bodily harm. He argues that the district court's reasoning amounts to a categorical rule under which any flight from the police would be subject to the enhancement. We review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Pena, 952 F.3d 503, 512 (4th Cir. 2020).

We agree that there is some contrary evidence as to the leadership enhancement. Ultimately, though, the district court's explanation is insufficient to facilitate meaningful appellate review, so we remand for further fact-finding and resentencing. We also agree that the reckless flight enhancement should not categorically apply to all flights by car. That is of no moment here, however, because we find no error in the conclusion that Burnley's flight created a heightened degree of risk, appropriately justifying the enhancement.

A.

Section 3B1.1 of the Sentencing Guidelines allows for sentencing enhancements based on a defendant's leadership role in the offense. U.S.S.G. § 3B1.1 cmt. (backg'd) (considering "the size of a criminal organization" and "the degree to which the defendant was responsible for committing the offense"). Section 3B1.1(b) provides for a three-point enhancement "[i]f 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." U.S.S.G. § 3B1.1(b).1

The Guidelines do not define the terms "manager" or "supervisor," so we apply their common meanings. See, e.g., United States v. Chambers, 985 F.2d 1263, 1267 (4th Cir. 1993) (finding the defendant did not act as a "supervisor" because the evidence did not show that he "supervised people," and "no one testified that [he] performed a single supervisory task"); id. at 1268 (relying on dictionary definitions of "manager" as one who directs people). In so doing, the sentencing court "must consider seven factors": [1] the exercise of decision making authority, [2] the nature of participation in the commission of the offense, [3] the recruitment of accomplices, [4] the claimed right to a larger share of the fruits of the crime, [5] the degree of participation in planning or organizing the offense, [6] the nature and scope of the illegal activity, and [7] the degree of control and authority exercised over others.

United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009) (quoting U.S.S.G. § 3B1.1, cmt. n.4).

Based on these factors, we have approved of the enhancement where defendants directed organized drug trafficking by managing and advising street-level dealers, setting prices and...

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