NONPRECEDENTIAL DISPOSITION

To cited accordance Fed. R. App. P. 32.1 United States Court of Appeals

For Seventh Circuit

Chicago, Argued November Decided December Before

WILLIAM J. BAUER, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge DIANE S. SYKES, Circuit Judge No.

UNITED STATES OF AMERICA, Appeal

Plaintiff Appellee District Court Northern District Illinois, Eastern Division. v . CR

ANTOINE MATTHEWS,

Defendant Appellant . Matthew F. Kennelly, Judge .

O R D E R Antoine pleaded guilty conspiring possess distribute using telephone commit felony. district judge sentenced him months’ imprisonment. appeals sentence, arguing erred identifying calculating range. See 3B1.1. Because clearly err, we affirm sentence.

I. Background

Matthews drew attention FBI and local law enforcement while they were investigating Jesus Zambrano, Mexican supplier. From October until his arrest in 2012, Matthews obtained Zambrano and his colleagues in Joliet, Illinois, kilograms heroin, which in turn distributed wholesale to customers in first known occurred on July 4, 2012, Joliet after

Matthews had deal course multiple phone calls with Zambrano. In call Matthews told Zambrano wanted “five”—an apparent reference to kilograms heroin. In another call Zambrano told Matthews “here” “other guys” were still their way. Matthews confirmed his presence by replying, “we too.” next transaction took place weeks later Joliet residence. In

preceding days, been overheard wiretapped calls complaining Zambrano about quality his previous heroin purchase and telling “next batch needs be better” “there’s lot competition.” another call expressed displeasure with heroin’s quality and even threatened end relationship saying, “I’m done. I’m done. Already me 800,000.” But transaction went through July That day near government agents spotted cars with Ohio license plates, which registered associate codefendant Lamar Egler. Agents watched unidentified male arrive large duffel bag, cars departed hour later. third when sent Egler Lewis associates, Joliet his stead purchase heroin. gave $330,000 purchase approximately kilograms day transaction, intercepted which instructed Egler count money front supplier how conduct negotiation purchase. For example, told “Don’t nothing till big dude comes,” referring supplier, asked Hall were counting money. Shortly thereafter, law enforcement intercepted call which first spoke supplier told sure check amounted kilograms. Later, returning Cleveland deliver (5.6 worth) Matthews, arrested police. final transaction same as

prior deal. Unable turn who were both custody, brought meeting three individuals, woman who was supposed drive 2.1 back At meeting was arrested by law enforcement, who seized pleaded guilty conspiracy possess distribute heroin, U.S.C. §§ 841(a)(1), using telephone commit felony, id. § 843. filed notice it would seek enhanced penalties under U.S.C. § presentence report, probation officer recommended

receive U.S.S.G. under leader or organizer 3B1.1 an adjustment level four being because he had because conspiracy involved five or more participants. objected ground not exert any real authority or or Hall. argued no paid these as subordinates; rather “independent drug dealers who would get their own portion sell.” also disputed offense involved five participants; insisted three uncharged individuals accompanied last not “actually participated this scheme way by present conversations.” Last asserted criminal activity “otherwise extensive,” U.S.S.G. 3B1.1, (1) sum money uncommon conspiracy cases; (2) covered only months an entire year; (Matthews, Hall) involved 16 ‐ 3354 4 the scheme other than the suppliers; and the scheme involved transporting drugs some “coast ‐ coast operation.” The judge concluded that the evidence did support level adjustment leader, but instead applied three level adjustment being supervisor. The judge relied on the sentencing memorandum, which recounted the conversations between on sent pick more 5 The judge also found that there five more participants: the three attendees the meeting (the unnamed men the woman supposed drive car). The judge found that the unnamed female driver “going location where deal is going happen. . . . There is enough they . . . enough knowledge what going could be considered participants.” The judge also found conspiracy “otherwise extensive” because “significant monetary benefit” “reasonably significant period time.” With adjustments, Matthews’s advisory guidelines range months. The judge sentenced statutory minimum months prison followed years’ supervised release.

On appeal we granted parties’ joint motion remand resentencing based district court’s imposition certain conditions supervised release light Thompson remand moved withdraw notice based Sentencing Commission’s intervening reductions levels tied quantities. The judge granted motion. filed another sentencing memorandum focused application factors under U.S.C. 3553(a). memorandum address issue, under 3B1.1, ensuing sentencing hearing, counsel clarified she wished “revisit” issue offense. Counsel principally contested finding scheme participants “otherwise extensive.” reaffirmed earlier findings regarding number extensiveness sentenced months. emphasized “there no question” “was top of” conspiracy “was directing around” “in charge this, part operation, you will.” ‐ 3354 5

II. Analysis

The Sentencing Guidelines provide increase in the guidelines range a defendant “an or leader” or a “manager or supervisor” in “a that otherwise extensive.” § 3B1.1(a), (b). not define “organizer,” “leader,” “manager,” 2012. These included Matthews’s calls telling Egler Hall “do nothing” until supplier arrived, count money, until supplier arrived “you got what’s up.” Then few minutes later, after speaking with his supplier, Hall “pull all them out”—i.e., make sure all heroin was delivered—and told count money. These reflect was performing duties who “tells people what determines whether ʹ ve done it.” Figueroa , F.3d reaffirmed previous finding resentencing when stated was “no question” “was top it, directing around, kind charge this.”

Furthermore, record whole—including facts version dispute—bolsters conclusion exercised supervisory enterprise. See Ruelas ‐ Valdovinos introduced July cars with plates parked outside where took place; one registered suggesting merely one time participant scheme. Moreover, after detained, able replace them individuals who accompanied deal, participant transport back And regard July transaction, overheard speaking others threatened end relationship due poor quality saying, “I’m done. I’m done. Already me 800,000” “I don’t need it.”

AFFIRMED.

[1] 3B1.1 reads part: Based defendant ʹ s offense, increase follows: (a) If defendant organizer or leader activity involved five more participants or otherwise extensive, increase by levels. (b) If defendant (but leader) otherwise extensive, increase levels.

“supervisor,” but the application notes identify several factors that a court should consider distinguishing between organizer/leader the one hand manager/supervisor the other: (1) the exercise of decision ‐ making authority; (2) the nature participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right larger share the fruits the crime; (5) the degree participation in planning organizing the offense; (6) the nature scope illegal activity; the degree authority exercised others. Id. 3B1.1 cmt. n.4; United States v. Weaver , F.3d 439, (7th Cir. 2013); United States v. Grigsby , F.3d (7th Cir. 2012); United States v. Figueroa , F.3d 694, (7th Cir. 2012). But 3B1.1 does not “ require presence any factors prerequisite imposing manager/supervisor enhancement.” Weaver , F.3d challenges application supervisor, arguing that evidence does establish that he supervised Hall. He contends, instance, that “a time favor undertaken coconspirators, in absence evidence[,] does elevate dealer into supervisor.” denies exercising decision making authority maintains that intercepted show providing mere guidance rather control. These are same arguments sentencing. clear error review 3B1.1 adjustment, “we will rarely reverse sentencing court is best position evaluate defendant’s in activity.” Leiskunas did clearly err applying adjustment. government’s evidence wiretapped phone calls, ‐ person surveillance, seizures established others transport drugs between instructed couriers how conduct negotiations suppliers. It is true did spell out rationale great detail, specify original sentencing relied forth sentencing memorandum. memorandum recounted conversations preceded