United States v. Gordon
2017 U.S. App. LEXIS 5474
1st Cir.2017Background
- Marco Gordon pled guilty to conspiracy and possession with intent to distribute over 28 grams of cocaine base based on a multi‑state trafficking operation centered in Portland, Maine; he conceded a leadership role and trafficking of roughly 839g over 15 months.
- At sentencing the district court applied a two‑level "criminal livelihood" enhancement under U.S.S.G. §§ 2D1.1(b)(15)(E) and 4B1.3, producing a Guidelines range of 188–235 months; the court imposed 132 months after a downward variance.
- The enhancement requires proof (by a preponderance) that, in any 12‑month period, the defendant (A) derived income exceeding 2,000 × federal minimum wage (here $14,500) from the criminal activity and (B) that criminal conduct was the defendant’s primary occupation.
- Gordon challenged only the enhancement: he argued (1) the court should have measured "income" on a net (profits) basis rather than gross receipts, and (2) his legitimate barbering was his primary occupation, not drug trafficking.
- The First Circuit remanded for clarification; the district court confirmed it relied on gross income and found gross criminal income exceeded $14,500 for Jan 9, 2014–Jan 9, 2015 and that trafficking, not barbering, was Gordon’s primary occupation.
- The First Circuit affirmed: (1) district court permissibly used gross income under §4B1.3 app. n.2(A) absent clearer guidance from the Sentencing Commission, and (2) no clear error in finding drug trafficking was Gordon’s primary occupation under prong (B).
Issues
| Issue | Plaintiff's Argument (Gordon) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether “income” under §4B1.3 app. n.2(A) must be net (profits) or may be gross receipts | "Income" must mean net: expenses of criminal enterprise should be deducted before comparing to $14,500 threshold | Gross receipts are permissible; practical problems and lack of Guideline guidance make net approach unworkable; government bears burden but often lacks expense evidence | Court: "income" may be measured by gross receipts; gross approach is permissible absent clearer Commission guidance; harmless in any event |
| Whether district court erred in finding criminal activity was defendant’s primary occupation under §4B1.3 app. n.2(B) | Gordon: He primarily worked as a self‑employed barber; trafficking was not his main occupation | Government: abundant, uncontested evidence of leadership, frequent transactions, and substantial proceeds from trafficking; little documentary proof of barbering income | Court: No clear error — evidence supports that trafficking, not barbering, was his primary occupation |
Key Cases Cited
- United States v. Cryer, 925 F.2d 828 (5th Cir. 1991) (upholding livelihood enhancement based on gross receipts)
- United States v. Quertermous, 946 F.2d 375 (5th Cir. 1991) (same)
- United States v. Reed, 951 F.2d 97 (6th Cir. 1991) (same)
- United States v. Morse, 983 F.2d 851 (8th Cir. 1993) (same)
- United States v. Kellams, 26 F.3d 646 (6th Cir. 1994) (applying enhancement on gross receipts where guideline did not require net accounting)
- Lee v. United States, 939 F.2d 503 (7th Cir. 1991) (construed earlier version of the guideline to require net income; discussed by concurrence)
- United States v. Santos, 553 U.S. 507 (2008) (plurality applied rule of lenity to interpret "proceeds" as net in a different statutory context; relied on in concurrence)
- Beckles v. United States, 137 S. Ct. 886 (2017) (Supreme Court holding vagueness doctrine does not apply to Guidelines; discussed in concurrence)