United States v. Mark Young

RIPPLE, Before CUMMINGS and Circuit CRABB, Judges, Judge.* Chief District RIPPLE, Judge. Circuit September Mark was con- victed of to manufacture and dis- tribute in a in excess of 1,000 plants in violation of 21 U.S.C. 841(a)(1). He pos- was also convicted of session with intent to distribute more than in violation of 841(a)(1). Young appealed. We af- firmed his conviction but reversed the sen- tence remanded the case to the district resentencing. ap- now peals his new sentence. For the reasons follow, we vacate Mr. remand the district court for resen- tencing.

BACKGROUND underlying

The facts convic- fully tion are set forth in United States v. (7th Cir.1993) Young, 997 F.2d 1206-07 I”). (“Young repeat therefore not need brief, them here. brokered approximately the sale of 600 to 700 grown that was and harvested * Crabb, Wisconsin, Judge sitting by designation. Honorable Barbara B. Chief District of the United States District Court for the Western viction, court sentenced Mr. 12,500 marijuana plants on an Indiana sentence of 405 between to a concurrent He received for his efforts

farm. ($100 $70,000 included a three-level $60,000 per pound). months. This sentence 3Bl.l(b) enhancement under U.S.S.G. sentencing proceeding, the dis- At his first Role”) for the district court’s (“Aggravating Young responsible for found Mr. trict court manager finding Young as a served 12,500 marijuana in the plants involved all supervisor. or Young that conspiracy, despite the fact I, Young’s con Young we affirmed Mr. conspiracy at time part of the was not the district spiracy conviction but reversed marijuana plants brought were that, under court’s sentence. We noted farm, grown, cultivated. The district and Edwards, 1387, v. United States points: finding on four court based — (7th denied, Cir.1991), U.S. cert. joined conspiracy defendant 1. The (1992), —, 1590, 118 L.Ed.2d 308 S.Ct. being prepared was while the calculate a a district court must quantity the whole was not and when quanti level based on the Guidelines offense Sentencing at 28. known. Tr. ty drugs the defendant could have reason undertook the role of 2. The defendant part ably to have been of the con foreseen re- primary distributor and undertook the I that spiracy. We thus concluded get of whatever mari- sponsibility “to rid statutory mandatory applies to Edwards operation, juana produced from this was 1210. minimum sentences. 997 F.2d at We Id. at 29. he was the distributor.” imposing “in a sentence for con held they producing mari- He “knew that were mandatory spiracy provisions of under the juana obligation that his was to sell 841(b), court must deter section they producing.” Id. what were drugs that the defen mine the was to receive for this defendant Id.; could have foreseen.” dant commission,” service “a rather substantial Martinez, 987 F.2d accord United States v. major commission that “reflects his role (2d Cir.1993); 923-26 United States conspiracy.” in the Id. (8th Cir.), Jones, cert. eo-eonspirators 4. The amount that — denied, -, U.S. S.Ct. every prepared to deliver week indi- (1992). L.Ed.2d 261 ongoing operation. Id. The dis- cates an then turned to the district court’s sen- We specifically trict court then addressed corresponding tence of Mr. and its actually brokered fact that the defendant findings of fact. concluded that the dis- We marijuana” “one batch of trict court’s determination weighed approximately 12,500 marijuana plants responsible emphatically limiting stated “support in ‘the evidence before the lacked conspiracy participation ” I, (quoting 997 F.2d at 1212 court.’ that amount “understates his involvement 1399). stated: We conspiracy, certainly in the under- parties district court nor the scope agreement.” Neither the states the of his Id. how the their submissions to us indicate inference, supports the central to record 997 F.2d at 1211-12. Based on its determination, that Mr. the district court’s finding that Mr. reason to know that 12,500 marijuana plants, all the district court than the amount involved more mandatory sentencing provision applied the actually he brokered. 841(b)(l)(A)(vii)1 and sen- U.S.C. Although imprisonment with- Id. the record demonstrated that tenced Mr. life the mari- out release for the conviction. On Mr. had been advised that juana production rate would be 100 possession with intent to distribute con- farm’s 1,000 841(b)'s mandatory sentencing provi- marijuana, than amount of or more or 1. Section 841(a) marijuana marijuana plants regardless weight.” sions come into effect if the more involves "1000 or more of a 841(b)(l)(A)(vii). violation containing a mixture or substance detectable week, decision-making authority nothing organiza- in the in the per there was concerning the ultimate duration tion. record beyond the 600 to 700 production evidence, Following presentation result, initially was asked to broker. As findings district court discussed its of fact. court the case to the district

we remanded Although the district court no made resentencing; expressly we noted concerning whether Mr. had reason to evidence of Mr. knowl- additional ratio, know Atkinson’s might necessary. edge and activities be imputed Young knowledge to Mr. that the district court would have also stated one-plant-equals-.25 pounds ratio. Sent. on remand its determination that to revisit result, Tr. 112-13. As a the district court manager supervisor was a or found that Mr. could have analysis explicitly its on the issue conspiracy foreseen that the entailed more respect findings relied on 1,000 marijuana plants, than and that he marijuana quantity of for which it found Mr. eligible mandatory therefore was for the stat- Young responsible. 841(b)(l)(A)(vii): utory minimum under remand, resentencing hearing At the on adjudicated guilty defendant was As of government called Claude Atkinson as its the Conspiracy to Manufacture and Distribute only Atkinson and Earnest Mont witness. 1,000 Marijuana in Excess of Plants gomery founding of had been the members cultivate, count the court the defendant was grow, and sell found to 2,800 responsible plants marijuana marijuana of was convicted of which plants per pound. being of a member. States v. based on The defen- See United (7th Cir.1992), marijuana F.2d 1219 dant brokered 700 aff'd (7th remand, appeal being 15 F.3d 715 processed on which was at 100 Cir.1994). that, Therefore, although mandatory per Atkinson testified week. stat- in utory penalty he sure that Mr. had been imprisonment ap- of life buyers for formed that there were other plicable and the court the defen- sentenced buyers, marijuana in addition to Mr. dant to life as to count 1.

he could not recall whether Mr. 5). (Appellant’s App. Statement Reasons marijuana been informed as to how much aggravating-role As for the enhancement buyers those would receive. Atkinson also connection with the substantive conviction conditions, that, optimum a estimated under distribute, possession with intent to the court marijuana yield on farm .25 plant would stated: cross-examination, marijuana.2 pounds of On enhance- conceded that Mr. had been The court determined a 3-level Atkinson buyers pur ment was warranted for Role the Of- informed that other larger “very quantities.” the defendant received a chasing small Sent. Tr. fense as crime and he had not share of the fruits of the 32. He also stated accomplices buy growing cultivating at least 2 been involved recruited marijuana. Additionally, organizers of marijuana, and that he did not know whether marijuana judgment trusted his re- anything knew about buyers, allowing him to general. cruiting also stated therefore cultivation Atkinson making authority in had no exercise decision de- on cross-examination Well, my experience testimony point with this on this on direct A. based on Atkinson's type growing epitome and with the as far examination was as follows: concerned, expect would conditions are one Okay. Approximately many plants Q. how perhaps quarter pound average. of a farm, produced you on the on farm quarter pound? Q. plant One would make you Montgomery, did it had with Earnest conditions, epitome growing A. If—on the pound marijuana sale? take to make one might yes, that be so. give you only conjecture A. I can on that. By “epitome,” you Q. term mean under Well, why you give your Q. me best don’t growing the best conditions? your experience estimate based on with the That’s correct. A. Tr. 17-18. on farm? Sent. buy production ra- As to Atkinson’s estimated ciding who would be recruited (one plant equals pounds), .25 tio court’s use of it in that the district submits Id. converting he bro- plants directly quantity kered into a con- II equation the travened the conversion Sen- DISCUSSION “equiva- tencing set forth in the Guidelines 2Dl.l(c) lency provision” n.*.4 of U.S.S.G. appeal, submits that On that, provision in an equivalency states district court erred in its calculation con involving fifty or more offense cerning quantity for which marijuana plant treat- plants, each should be was found as a member of the marijua- equivalent kilogram of ed as to one argues conspiracy. He also that the district sentencing purposes. na for increasing court erred his offense level argues if therefore three for his role in the offense under appropriate deemed it to convert the 700 3Bl.l(b). address each We shall into a pounds of he brokered in turn. review a district court’s issue employed it should findings sentencing of fact at for clear error. Abdelkoui, 1178, v. 19 F.3d If equivalency provision. United States the the court had (7th Cir.1994). interpre 1183 We review its so, contends, Young it have done Mr. would tation of a statute and the Guidelines de pounds approxi- that the 700 concluded —or Haynes, novo. v. 969 F.2d United States mately equivalent kilograms the of —was (7th Cir.1992). 569, 571 plants, in turn have been which should equivalent kilograms for treated as to 320 Marijuana Quantity A. Calculation Instead, sentencing purposes. pounds court converted the 700 into 2800 by produc- plants utilizing Atkinson’s “real that, I, argues Young Young Mr. as in the pounds plant equals tion” formula of one .25 support record fails to the district court’s (or plants equal pound). Young four one Mr. finding concerning quantity marijuana the of court’s for sen- argues use reasonably he could to have have foreseen tencing purposes production of es- Atkinson’s conspiracy.3 con- been involved He precisely type produc- timation is of “real tends that the district court had no basis to rejected this court tion” formula that has reasonably find that he could have foreseen previous challenges equivalen defense to the any quantity marijuana beyond of the 700 2Dl.1(c) See, cy n.*. provision of U.S.S.G. clear, pounds he brokered. This is 715, e.g., v. 15 F.3d United States states, from the fact that no evidence (7th Cir.1994); v. Mont United States presented resentencing hearing was at his (7th Cir.1993); gomery, 990 F.2d already about which this court was not aware Haynes, 570- United States when it the same conclusion. More reached (7th Cir.1992). event, any In that, important, argues exception he argues, the district court had no basis find testimony concerning of Atkinson’s the mari- that he knew or had reason to this real know ratio, juana production pre- no evidence was Moreover, contends, production ratio. he be demonstrating sented that Mr. had yield marijuana plants any marijua- cause the of varies reason to foresee the number of conspiracy. greatly, na that was involved in the ratio the district I, plant equiva- (concluding plants, 3. See 997 F.2d at 1212 marihuana treat each as support marihuana; (B) the record failed to Mr. the inference "that lent to KG of fewer than 50 reason to know that equiva- plants, plant treat each marihuana conspiracy involved more than the amount of Provided, howev- lent to 100 G of marihuana. er, brokered”). actually he weight is that if the actual of marihuana greater, weight use the actual of the marihua- 2Dl.l(c) part, provides: U.S.S.G. n.* na. involving In the case of an offense marihuana (A) plants, if the involved 50 or more offense pointed upon was unreliable. As know involved more mar court relied ijuana pounds marijuana than the 700 by Haynes, he out this court instance, yield appeal brokered.5 The issue on plant can as much as from resen- one therefore, tencing, question involves marijuana. pound one how to characterize that 700 that, government response, submits sentencing purposes. The district court be Young argues to the extent that Mr. that he that, I, opinion lieved based on in Young our should sentenced on the basis of the num- be conviction a manufacturing on he brokered and not on a ber offense mandated that his sentence be based quantity marijuana plants, argument on plants equivalent the number of to 700 I, foreclosed this court’s decision ' government (stating agrees; does not. As we stated charged manufacturing with a above, the district court should believes conspiracy, government rely could on the equivalency provision have used the involved). marijuana plants number of To 2D1.1(c) n.* to weight convert the Young challenges the extent that Mr. he brokered into a number of finding district court’s that he could again equivalent and then back that the in- foreseen sentencing pur marijuana plants, govern- volved 2800 We, however, poses. cannot accept either argues ment that the court’s was not government’s Young’s approach. or Mr. clearly erroneous. Atkinson testified at the remand, correctly On the district court resentencing hearing followed our decision in which re buying informed that others mar- there were lied on our decision in determin ijuana farm; produced at the ing that it could base Mr. states therefore had reason quantity marijuana on the of he could marijuana know that in- to the amount of reasonably foreseen the to greater volved was than the quantity have involved. That was 700 Moreover, 700 he brokered. as the pounds, amount he brokered for the de found, knowledge district court Atkinson’s of fendants. Because the offense at issue was a many plants produce pound it how took to is, manufacturing offense—that one “involv imputed Young of can be to Mr. 2D1.1(c) ing plants,” part conspiracy. he was of He n.*; 720; Haynes, 969 not knowledge need have had actual of that F.2d at 572 — the district court determined all, government urges, ratio. After quantity marijuana plants of on which conspiratorial liability for standard is reason- It could be based. did foreseeability, knowledge. able not actual testimony so based on Atkinson’s that one ratio, production gov- Under Atkinson’s plant yielded approximately on his farm .25 ernment contends that the district court had pounds, “imput a ratio that the district court Young sufficient evidence to find that Mr. court, ed” to the defendant. The district 2,800 responsible marijuana plants, was however, concerning made no determination him eligible which rendered for the mandato- or, ratio whether knew this more 841(b)(l)(A)(vii). ry provision of 21 U.S.C. importantly, whether he had reason to The that it know it. court stated was not required to make determination on foresee contentions, assessing impor- In these it is ability respect production with to Atkinson’s basing tant to note at the outset ratio. plants determination of the number of responsible regard, which Mr. In on the this latter the district brokered, of failing number court erred in to follow the full extent agreed court on holdings Young remand with our assessment of our I and Edwards. cases, eonspiratori- that Mr. had no reason to those we made clear that (stating actually 5. See Sent. Tr. 114-15 on remand that "I Defendant distributed the amount he distributed, reasonably pounds”). find that it was foreseeable that this foreseen, reasonably foreseeability, regard- dant could have the dis- liability based on al on the the sentence is based trict court should have sentenced Mr. less of whether Guidelines, Sentencing as him weight on the for which it found based statutory mandatory or on a F.2d at place, pounds. in the first I, minimum, 997 F.2d at 1210. as supra accompanying note 5 and text. See not, foreseeability Although such does discussion, course, By ap to have had actual of our it is require Mr. virtue ratio, reject Young’s argu it does knowledge parent also we demonstrate, to require government on the basis of a ment that he be sentenced find, at court to equivalency provi application reverse of the 2Dl.l(c) to least have had reason know Although n.*. sion of U.S.S.G. held re- marijuana plants for which he was same, end result is the our this case the court made no such sponsible. The district disagreement with Mr. stems indeed, case; expressly it stat- finding in this provision. equivalency nature of the required not to do so. ed that it was given provision a court to convert a allows weight sentencing plants into a number to But the district court’s decision Congress’ judgment purposes. It “reflects marijuana it found convert the grows plants is that an individual who reasonably fore Young could have just culpable as one who has distributed in plants seen into a marijuana.” Haynes, kilograms misapprehen a further fundamental volves may F.2d at 571. A court thus use the Young I Edwards. sion of provision plants to equivalency to convert approach to applied guidelines Edwards’ we kilograms. designed, not how The table was mandatory statutory mini the context of ever, permit the conversion of to so, doing mums. In we stressed that statuto Here, kilograms. although plants ry sentencing provisions and the entitled to cast its initial consistently read Guidelines must be charge in terms of it failed to meet its another, they must read as a one be showing burden employ Congress not intend “to whole. did If no could foresee. number [mandatory sentencing] statute a under the having plants can be attributed as rea completely been sentencing that is so scheme defendant, clearly sonably foreseeable then approach re odds with the measured quired by guidelines.” Young 997 F.2d must be sentenced on the the the defendant (relying marijuana regardless at 1210 on States v. Mar weight United of the of the — (2d Cir.1993)). tinez, 920, marijuana 987 F.2d 925 a underlying eonvic nature of the one, guidelines case, as this make case such Young’s weight In Mr. is 700 tion. any quantity will clear that kilograms. pounds, approximately or 320 ultimately weight a for sen be reduced to district court’s sen We therefore vacate the tencing purposes. When the offense is one resentencing the ease for tence and remand growing manufacturing or opinion. with this consistent may the sentence be based on involved, plants then which is Role, Aggravating B. Enhancement weight pursuant into a to the converted § 3B1.1 U.S.S.G. However, equivalency provision. even submits that the dis also “involving plants,” such an offense enhancing trict erred in his sentence 2D1.1(c) court n.*, § plants the number of U.S.S.G. possession aggravating for an role weight on which the ultimate will be based intent distribute conviction. See U.S.S.G. to must have been foreseeable to 3Bl.l(b). held, however, already §(cid:127) approach, made the defendant. This as we the district court’s sentence must be clear and controls re resentencing. Be vacated and remanded for gardless statutory mandatory of whether a nullify to cause “the effect of a vacation is applies minimum or the Guide sentence,” the district apply. previously imposed lines failed Because writing many court on will be “on a clean to demonstrate how the defen- remand

507 Atkinson, testimony at 1223. As a that Atkinson’s demonstrates that slate.” result, always a de- we have not addressed he was no more than a middleman distribu- such, arguments concerning Young argues, al- tor. fendant’s additional As he was not leged process. manager supervisor subject See id. a or errors to a three- 3Bl.l(b). Nonetheless, § in this case the district court is level increase under U.S.S.G. Brown, 1377, unlikely its sentence for Mr. See v. to revisit United States F.2d (7th Cir.1991) (concluding offense and its corre- substantive that “middle- sponding finding that his role in the offense man support finding status alone cannot a required supervisor, manager a three-level enhancement under that a defendant was a 3Bl.l(b). shall, § activity”). We therefore or leader of a criminal judicial economy, the sake of address Mr. 3Bl.l(b), a Under U.S.S.G. defen Young’s argument on the issue of district manager supervisor dant who acted as a or aggravating court’s enhancement for an role. operation involving a criminal five or more A district court’s determination on this issue participants subject is to a en three-level subject to reversal for clear error. hancement. The do not define Guidelines Vargas, v. United States “manager” “supervisor.” the terms and But (7th Cir.1994); Cantero, v. United States 3Bl.l(b) commentary to U.S.S.G. sets (7th Cir.1993). F.2d forth a list of a factors court should consider court found that an enhance- The district in “distinguishing leadership organiza a for Mr. role in the as a ment offense management tional role from one of mere or manager supervisor proper or for three supervision.” There are seven such factors: First, large reasons. he received a share of (1) decision-making authority; the exercise of the fruits of the crime. He earned between (2) participation nature in the $60,000 $70,000 over the course of sever- (3) offense; commission of the the recruit weeks, capital al and contributed no (4) accomplices; right ment of the claimed to Second, enterprise. criminal he recruited (5) crime; larger share of the fruits of the marijuana. “accomplices” purchase degree participation planning or Finally, Tr. Sent. (6) offense; organizing the the nature and decision-making position operation in the (7) illegal activity; scope of the the de stemming Montgom- from Atkinson’s and gree authority of control and exercised over ery’s allowing trust to recruit comment, (n. 3B1.1, 3); others. U.S.S.G. persons purchase Skinner, United States F.2d (7th Cir.1993). circuits, contending that the district clear- Like others see Skinner, ly (collecting erred in his role in the offense to F.2d at 1096 n. 1 cases), manager supervisor, be that of a or this circuit has used these factors for heavily testimony simply distinguishing organiza relies on of more than an government’s leadership sole witness tional and role from one of man fact, resentencing hearing. agement supervision. Atkinson testified or we have many employed that Mr. was not included in “to a de them determine whether workings operation, qualifies supérvisor the inner of the that fendant as a at all.” Brown, 1; Montgomery price Atkinson and set the 944 F.2d at 1380 n. see also Unit Bell, (7th brokered, and, Mr. ed States v. Cir. 1994) importantly, (using distinguishing most that Mr. had “in no the factors decision-making authority operation. ‘organizers in the and leaders’ from ‘rank and file Ramos, criminals’”); Young emphasizes, Mr. stated that United States v. Cir.1991) (7th Young’s only operation (utilizing task in the n. 11 was to F.2d provide Montgomery po- commentary distinguishing Atkinson and factors “in Moreover, buyers tential of the between those defendants who should be 3Bl.l(c) out, Young points as Mr. Atkinson testified classified within section and those not”). approval that Mr. did not have final of who should therefore shall use the buyers; potential Montgomery commentary’s reviewing and in Atkinson factors the dis Thus, Young essentially did. contends trict court’s enhancement determination. blush, proper in stated that the focus of appears it which we

At first § enhance- comparing inquiry role an into a U.S.S.G. 3B1.1 off-target in is not responsibility for ment was “on the relative operation in played exclusively of the an offense and not on one occupied in Brown. role the defendant that, Vargas, case, light application of the note factors.” See also we concluded that ease, persons In this commentary to 16 F.3d at 160. eleven factors listed in the U.S.S.G. participating in 3B1.1, improperly indicted on the basis of § court had operation govern- at under the criminal issue. the defendant’s sentence enhanced Montgom- and § ment concedes that Atkinson 3B1.1 on the basis of middle Id., ery organizers, and were the clear leaders drug man distributor status. however, relative re- emphasized, but contends that expressly 1381. We higher that sponsibility significantly is than in that case had erred that the district court operation than person other relying solely on the defendant’s middle Montgomery. Mr. does made clear Atkinson and man status. Id. at 1382. We “[mjiddlemen and, course, not, contest this from our read- immune not assertion are surrounding criminal ing § of the facts application of 3B1.1.” Id. at 1381. that, likely many organization, he cannot. Unlike government if the shown We noted see, Haynes, participants, e.g., presence of the factors in the of the other of some 3B1.1, (stating Haynes “worked commentary such as a 969 F.2d at 571 to U.S.S.G. “helped transplant seed- larger profits or recruitment of at the farm” and cut of the farm, fields, may lings, guard the tend the accomplices, the result well have been process plants”), Mr. harvest and the mature different. Id. Young’s participation operation in the case, In this did show success; operation simply critical to its presence re- of these factors. could not have flourished without his distri- proceeds, large ceived a share of the criminal was, short, contacts. Mr. bution yet capital. he contributed no financial Such “more than his codefendants for setup reflects the fact the human Skinner, of the offense.” the commission valued, capital highly he contributed was 986 F.2d at 1097. management which is often indicative of a or buy- supervisory position. He also recruited We thus must conclude that ers, York, Florida, elsewhere, enhancing in New court did not commit clear error through operation could distribute Mr. three for his whom offense level mariguana pursuant nationwide. As we stated role the offense to U.S.S.G. 3Bl.l(b). good a matter of “a deal of We note supports original impression, conclusion the enhancement in this evidence of record quite very a bit more than a case would be a close call. The district Although presence lit- three of middleman.” the record lends court identified the commentary support exercised the seven factors out in the tle show that Mr. set others, 3B1.1, “it that control it control over is clear to U.S.S.G. failed discuss qua Young’s responsibility over is not the sine non of a in detail in rela- others person manager supervi- participants in criminal that a or tion to the other Nonetheless, organization. appli- sor.” Id. under the review, we must cable deferential standard however, important, More we affirm the three-level increase in the offense stressed in Brown that the defendant’s role level. in that case—a third-tier distributor —failed to demonstrate that the defendant “was more Conclusion culpable wrongdoing than others for the —the reasons, foregoing For the the sentence Brown, central concern of 3B1.1.” the district court is vacated and remanded (“The 1382; F.2d at id. at 1381 see also proceedings for further consistent with this respon § 3B1.1 relative central concern of opinion. sibility.”). iterated this concern for rela Skinner, culpability in tive and Remanded. Vacated CRABB, Judge, concurring. Chief District Judge Ripple’s agree

I resolution Young’s challenge application Mark separate- Guidelines. write ly my whether or not a to state belief knows the ratio of mar- defendant ijuana plants, equivalency ta- count, quadruple not be bles should used they were here. BLANEY, Plaintiff-Appellant, Alexander America, United UNITED STATES Force, Bartucca, Air Lin et States al., Defendants-Appellees.

No. 93-3737. Appeals, United States Court of Seventh Circuit. Argued April Sept. Decided

Case Details

Case Name: United States v. Mark Young

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 2, 1994

Citation: 34 F.3d 500

Docket Number: 93-3551

Court Abbreviation: 7th Cir.