United States v. Fred McGeeUnited States v. Fred McGee
MANION,
I. Background
On January 31, 2018, McGee and two other men, Wayne Frazier and Terry Glaspie, were transporting heroin from Chicago to Minneapolis. Frazier drove, with McGee and Glaspie as passengers. Police stopped the vehicle for speeding on the
On February 5, 2018, police investigators interviewed Glaspie. Glaspie stated that McGee asked him to accompany McGee from Chicago to Minneapolis. The next day, an inmate housed in the same housing block as McGee spoke with investigators. He said McGee told him that the heroin the police found belonged to McGee, not Frazier or Glaspie. The inmate also stated that Glaspie arranged for Frazier to drive to Minneapolis, since McGee had previously been pulled over without having a valid driver‘s license, and McGee paid Frazier to drive.
While in jail, McGee called Charles McMillan, a drug dealer with whom he previously worked. McMillan scolded McGee for hiding the drugs behind the glove compartment and told McGee that he should have hidden them in the ceiling. McMillan also blamed McGee for failing to instruct Frazier to slow down before the men were stopped on January 31 during the transport.
On August 30, 2018, Glaspie spoke with investigators again. He told them that on the day the men were caught traveling with drugs, McGee came to Chicago to pick up him and Frazier to transport heroin to Minneapolis, “where McGee distributed it through his own local network.” McGee hid the drugs in the vehicle before picking up Glaspie and Frazier. Since McGee did not have a valid driver‘s license, Glaspie agreed to “act as a lookout.” Glaspie also stated that McGee was distributing heroin for McMillan and visited Chicago every month to retrieve heroin from McMillan for distribution in Minneapolis.
On October 11, 2018, Glaspie testified before a grand jury that McGee worked for McMillan for several years, distributing heroin in Minneapolis. Glaspie also worked for McMillan and was paid in heroin. On the day of the arrest, both McGee and McMillan had requested that Glaspie ride to Minneapolis with McGee. Glaspie did not want to drive since he did not have a license, “so McMillan suggested having Frazier drive them.”
On August 19, 2019, McGee pleaded guilty to possession with intent to distribute heroin and fentanyl. The district court accepted his guilty plea and convicted him. In calculating his offense level, the Probation Office recommended a two-level enhancement for being an “organizer, leader, manager, or supervisor in the criminal activity” since “Glaspie acted at the defendant‘s direction in their jointly undertaken criminal activity.” McGee objected to the two-point enhancement.
In determining McGee‘s criminal history points, the Probation Office added three points from a January 1, 2007, DUI conviction in which McGee was sentenced to six months in jail and 36 months’ probation. However, his probation was later revoked, and he was sentenced to an additional 210 days in jail. McGee objected.
The court found that the length of McGee‘s imprisonment for the January 1, 2007, DUI conviction exceeded thirteen months, and thus, his criminal history points were properly calculated. Second, it responded to McGee‘s objection to the imposition of a leadership enhancement under § 3B1.1(c) of the Sentencing Guidelines.
The court calculated McGee‘s advisory Guidelines range as 92 to 115 months. It also noted that if it were not to impose the leadership enhancement, the Guidelines range would be 77 to 96 months.1 The court clarified it had not decided on a sentence, and it would consider both ranges.
After hearing from defense counsel, the court addressed McGee. It asked him various questions, including questions about his risk of recidivism. After McGee responded, the court expressed its concerns that McGee failed to understand the efforts required to reform his behavior. Then, without asking whether McGee had anything further to say, the court sentenced McGee to 84 months’ imprisonment followed by a four-year term of supervised release. McGee appealed.
II. Discussion
A. Leadership Enhancement
McGee first argues that the court erred in imposing a two-point leadership enhancement under § 3B1.1(c) of the Sentencing Guidelines. When considering whether an enhancement under § 3B1.1 was properly imposed, “we review the district court‘s factual determinations for clear error, and we review whether those facts support the enhancement de novo.” United States v. House, 883 F.3d 720, 723 (7th Cir. 2018). This Court will reverse the district court‘s determination “only if we are left with a ‘definite and firm conviction that a mistake has been made.‘” United States v. Harris, 791 F.3d 772, 780 (7th Cir. 2015) (quoting United States v. Johnson, 489 F.3d 794, 796 (7th Cir. 2007)).
Under § 3B1.1, a defendant is subject to an increased offense level based on his or her role in the offense. “[T]he primary goal in applying § 3B1.1 should be to make a ‘commonsense judgment about the defendant‘s relative culpability given his status in the criminal hierarchy.‘” House, 883 F.3d at 724 (quoting United States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015)). A defendant‘s offense level is increased by two levels if he or she “was an organizer, leader, manager, or supervisor in any criminal activity” not otherwise described in the section. U.S.S.G. § 3B1.1(c). Typically, this means that “the defendant ‘had some real and direct influence’ on other participants in the criminal activity.” United States v. Mankiewicz, 122 F.3d 399, 405 (7th Cir. 1997) (quoting United States v. Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994)).
A defendant is subject to the enhancement if he or she satisfies any of the roles in § 3B1.1(c). Although the terms used for each role are not defined by the Guidelines, we have held that a supervisor or manager “tells people what to do and determines whether they‘ve done it.” United States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012). An organizer or leader exercises a greater extent of authority than a supervisor or manager. See § 3B1.1 n.4.2
provided no real explanation about how it arrived at these conclusions.
The record lacks evidence to support the district court‘s reasoning. First, nothing indicates McGee supervised others during drug distributions in Minneapolis. According to the evidence, Glaspie stated McGee distributed the heroin he obtained from Chicago in Minneapolis “through his own local network.” This evidence merely suggests McGee was a “middleman.” See United States v. Brown, 944 F.2d 1377, 1382 (7th Cir. 1991) (“[M]iddleman status alone cannot support a finding that a defendant was a supervisor, manager or leader of a criminal activity, and thus was more culpable than others for the wrongdoing—the central concern of § 3B1.1.“). Distributing drugs through his own local network could mean that McGee distributed drugs to other dealers who in turn distributed drugs to buyers. It could also mean McGee had a local network of buyers to whom he distributed the drugs. Under either interpretation, there is no evidence indicating that McGee exercised any control or authority over this unknown group of people. See United States v. Weaver, 716 F.3d 439, 443–44 (7th Cir. 2013) (finding a three-level supervisory role enhancement was improperly imposed absent evidence that a drug dealer supervised his buyers, who were also drug dealers).
Second, McGee‘s interactions with Frazier and Glaspie do not justify imposition of an enhancement under § 3B1.1(c) because there was no evidence McGee played a superior role. The district court found McMillan was the overall leader of the operation while McGee played an “intermediate role.” McGee and Glaspie both worked for McMillan. Although McGee asked Glaspie to accompany him from Chicago to Minneapolis, Glaspie and McGee were both already employees of McMillan. Without additional evidence, Glaspie acting as a lookout in the transportation of the drugs is not enough to establish that McGee had any real and direct influence over Glaspie. See id. at 444 (“Finally, the enhancement requires ongoing supervision, not a one-off request from one equal to another during the course of the criminal activity.“).
Similarly, the evidence shows only that McGee paid Frazier to drive but did not recruit him. Instead, Glaspie or McMillan suggested Frazier act as the driver. There is no evidence of McGee controlling how Frazier drove. In fact, McMillan blamed McGee for not telling Frazier to slow down. There is simply no evidence of
It is no defense that McGee was sentenced below the 92-to-115-month Guidelines range. The court imposed a sentence of 84 months with the supervisory role enhancement. This is within the 77-to-96-month range without the enhancement. However, “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant‘s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). The fact the court chose to sentence below the Guidelines range in the first instance might indicate the court would impose a lower sentence after properly calculating the Guidelines range, but we are ill-equipped to speculate. The operative circumstance which compels our decision is the record does not indicate what the court “might have done had it considered the correct Guidelines range.” Id. at 1347. Thus, without opining on what sentence should be imposed, we vacate and remand for resentencing.
B. Right of Allocution
Our decision on the first issue renders moot the issue of the adequacy of McGee‘s allocution. We need not decide whether denial of McGee‘s right of allocution amounted to plain error since he will have another opportunity for allocution on remand. See United States v. Mobley, 833 F.3d 797, 801 (2016) (explaining a general remand is preferable when a “component part[]” of a sentence is disturbed on appeal). We expect any issues in allocution will be addressed at that point.
C. Criminal History Points
Both parties agree the court miscalculated McGee‘s criminal history points by erroneously considering a DUI conviction from 2007. The court added three criminal history points for the 2007 conviction because it mistakenly found the sentence for that conviction exceeded thirteen months.6 See generally U.S.S.G. § 4A1.1. McGee concedes that the error is not an independent
III. Conclusion
The record does not contain evidence to support the district court‘s imposition of a leadership enhancement in calculating McGee‘s Guidelines range. Accordingly, we VACATE the judgment of the district court and REMAND for resentencing, consistent with this opinion.