United States v. Fred McGee, 985 F.3d 559

On Jan 31, 2018 McGee, with Wayne Frazier (driver) and Terry Glaspie (passenger), was stopped transporting >100 grams of heroin/fentanyl from Chicago to Minneapolis; contraband was found behind the glove box.
Statements and phone calls: Glaspie said McGee asked him to ride and distributed in Minneapolis; an inmate reported McGee claimed ownership; McGee called supplier Charles McMillan who blamed McGee for concealment and failing to tell the driver to slow down.
McGee pleaded guilty to possession with intent to distribute; Probation recommended a two-level §3B1.1 leadership enhancement for being an organizer/manager; McGee objected.
At sentencing the court applied the two-level leadership enhancement, calculated an advisory Guidelines range of 92–115 months (77–96 without the enhancement), and sentenced McGee to 84 months’ imprisonment plus four years’ supervised release.
The PSR also added three criminal-history points for a 2007 DUI sentence the court mistakenly concluded exceeded 13 months; both parties later agreed the points were miscalculated.

Issue	McGee's Argument	Government's Argument	Held
Whether §3B1.1(c) two-level leadership enhancement was proper	No: record shows at most a middleman; no evidence McGee exercised real/direct authority or ongoing supervision over accomplices	Yes: McGee ran a Minneapolis offshoot, directed transport, paid/organized participants	Enhancement was improper: record lacks evidence McGee supervised or had authority over other participants; vacated and remanded for resentencing
Whether McGee was denied a meaningful right of allocution	McGee: sentencing court did not ask if he had anything further to say	Government/District Court: contested but not resolved here	Moot on appeal; remand will afford McGee another opportunity to allocute
Whether 2007 DUI criminal-history points were correctly calculated	McGee: points erroneously added because sentence did not exceed 13 months	Government: agrees miscalculation occurred but it did not change CH category or range	Both parties agree error; court instructed to correct the calculation on remand

United States v. House, 883 F.3d 720 (7th Cir. 2018) (standard of review and commonsense role-assessment for §3B1.1 enhancements)
United States v. Mankiewicz, 122 F.3d 399 (7th Cir. 1997) (enhancement requires defendant to have had some real and direct influence over others)
United States v. Mustread, 42 F.3d 1097 (7th Cir. 1994) (same principle regarding influence over participants)
United States v. Figueroa, 682 F.3d 694 (7th Cir. 2012) (supervisor/manager defined as one who tells people what to do and checks performance)
United States v. Brown, 944 F.2d 1377 (7th Cir. 1991) (middleman status alone cannot support supervisory-role enhancement)
United States v. Weaver, 716 F.3d 439 (7th Cir. 2013) (enhancement improper absent evidence a dealer supervised other dealer-buyers)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (an incorrect Guidelines range can show a reasonable probability of a different outcome)
United States v. Mobley, 833 F.3d 797 (7th Cir. 2016) (general remand preferred when a component of sentence is disturbed)