*1 injunction edy, that absent JAK would harm, irreparable and that the
not suffer
balance of harms favors Wiza. JAK
proved a sufficient likelihood of success merits, properly and the district court injunction period
determined that the last modify in-
until March 1993. We
junction by revising the definition of “cus- ongo-
tomers” to include those who had an
ing relationship business with JAK as 25, 1991,
November whether or not a con-
tract with JAK was then force. As
modified, the district court Affirmed, proceed-
the case is remanded for further
ings. America,
UNITED STATES
Plaintiff-Appellee, SKINNER,
Roger Defendant-Appellant.
No. 92-1121. Appeals, Court
Seventh Circuit.
Argued Nov. 1992.
Decided Feb. 1993. April
As Amended
RIPPLE, Judge. Circuit charged in Roger Defendant Skinner with to three-count indictment marijuana intent to distribute possess with (1988), of 21 use in violation U.S.C. § telephone drug felony to facilitate a 843(b) (1988), of U.S.C. violation § marijuana attempt possess with intent in violation of 21 U.S.C. distribute § morning begin, that his trial was On agreement plea entered into a attempt pleaded guilty in which charge exchange for dismissal remaining two counts. appeals from Sentencing application Guide- Specifical- arriving his sentence.
lines alleges the sentenc- ly, the defendant (1) calculating ing court erred 2D1.4; (2) under U.S.S.G. amount ruling played aggra- that the defendant (3) 3B1.1; vating under two- that he not entitled acceptance responsi- level reduction for 3E1.1. bility under U.S.S.G. § I
BACKGROUND
began
DEA
force
In June of
task
Quad
drug investigation in the
Cities area
Mr.
targeted
of Illinois
informant
intro-
A confidential
Skinner.
Final Mr.
Special Agent Brett
duced
Mr.
Agent Final
with
Skinner.
nego-
As the
cocaine.
Skinner
Agent Final and Mr.
progressed,
tiations
Final,
agreed that
the undercover
agent,
provide the defendant with
pounds marijuana
to,
persons over sev-
different
would broker
They
agreed that Mr. Skin-
days.
eral
of cocaine for
ner would obtain ten ounces
transac-
Agent
Final
completed. During
course
tion was
Mr. Skinner revealed
negotiations,
Chambers,
Atty., Peo-
Tate
Asst. U.S.
K.
buyer
fifty
pounds
he had a
ria,
plaintiff-appellee.
(argued), for
IL
marijuana. Mr.
also stated that
Gleicher,
(argued),
IL
Chicago,
David W.
fifty
remaining
he could sell the
defendant-appellant.
days.
within two
24, 1990,
BAUER,
brought
Final
Judge,
July
On
Chief
Before
Moline,
ROVNER,
Judges.
motel room
RIPPLE and
(4th Cir.1991),
Illinois,
After
appeared
the motel
both
Skin-
sentencing
The
court determines
Mangels
ner
Mr.
were arrested.
in
quantity
drugs
of
an of
sentencing hearing
by
preponderance
was
a
fense
evidence.
The defendant’s
227,
January
Using
Hughes,
1992.
the total
held on
(7th Cir.1992).
sentencing
We
pounds
of
review
marijuana
and ten ounces
of
findings
for clear error.
government alleged was
that the
cocaine
Cea,
transaction,
in
the States
the amount involved
—
Cir.),
denied,
U.S. —, 113
cert.
S.Ct.
that Mr. Skinner’s
district court determined
(1992).
281,
had acted as
“middleman”
II
persons
purchase
drugs
for other
profit.
from whom extracted
DISCUSSION
attempted to
Agent
initially
pur-
Final
Drug
A.
Amount
Calculation of
from Mr. Skinner. When
chase cocaine
on the
they
not come
terms
co-
appeal,
alleges
On
Mr. Skinner
could
deal,
Mr. Skinner com-
merely "puffing"
told
caine
and after
when he
scarcity of
the relative
mari-
arrange
purchase
plained
Final
he could
about
Island, Agent Final
marijuana
sale of
in Rock
decided
pounds
juana
and the
marijuana
main
to sell
to Mr. Skinner.
ten
of cocaine. Mr. Skinner
to offer
ounces
drugs
negotiations,
in
Mr. Skinner
proper
tains
amount of
After a series
pounds of mari-
agreed
purchase
reduced to
the 100
volved in the
should be
understanding between Mr.
pounds
juana.
and no co
twenty
Ruiz,
Agent Final was
Relying on
caine.
to Mr. Skin-
agent
would sell the
F.2d 1174
—,
pound.
turn
S.Ct.
116 L.Ed.2d
ner
$900
Richardson,
product
customers
(1991),
to his
would sell
United States v.
participated
purchase
in a cocaine
be
pound.
informed who
$1,000 a
receiving
pounds
upset
only
one of two
fifty
Final
would
came
supply
kilograms
person
who would
of cocaine
sold
twenty
lots of
In an
promised
and that two
to deliver to him.
cocaine
persons. Mr.
customer,
Skin- attempt
unhappy
be sold to other
appease
$9,000
essen-
profit,
informant,
ner intended to use
told the
"I'll
the defendant Ruiz
fee,
brokerage
tially his
want,
you
kilo.
if
get you the other
And
in-
remaining
pounds. Mr. Skinner
ten
get."
ten more I can
Id. at
even
then would
Agent Final that he
formed
using
that the district court erred
found
$10,-
of cocaine
supply the ten ounces
calculating
kilogram
ten
amount when
*4
in the con
drugs
amount
involved
the
of
spiracy.
noted Ruiz:
agent refused to
government
the
After
sample
of the
single
Mr.
to take
comment was not sufficient
allow
Ruiz’s
developed and Mr.
marijuana, complications
had as
to establish that the
its
placed
telephone
up-
calls
several
goal
the
of a deal
consummation
Agent Final over-
problems.
out the
kilograms.
work
of
Such an
wards
ten
talking
telephone
Mr. Skinner
the
heard
had been mentioned to
amount never
informing
person that
to someone and
Guerra;
Agent
there
no evidence of
“ten
Agent Final wanted
osbournes”
amount;
buyers
no
for such an
Agent
marijuana
complete.
deal was
the
quoted
or
price had
set
even
been
was a
that “ten osbournes”
Final testified
amount;
indeed,
such an
there was no
Af-
ounces
phrase for ten
of cocaine.
code
of
kind that Ruiz had
telephone,
hung up the
ter
possession
had access to that amount
or
Agent Final that he had been
informed
of cocaine.
During
supplier.
cocaine
speaking to the
negotiations, Mr. Skinner identified
further
case,
present
In the
Mr. Skinner and
buy
fifty
the
person who wanted
the
Agent
negotiated
Final
the amount and
suppli-
marijuana as the cocaine
pounds of
marijuana that would
price of cocaine and
stated his belief that
er. Mr. Skinner also
transactions;
separate
involved in the
pounds of
arrange the sale of 100
he could
timing
the
Mr'. Skinner dictated
Mr.
Finally,
marijuana every two weeks.
negotia-
transactions;
extensive
there were
Mangels,
produced
purchaser
Mr.
delivery
the
of
leading up to
tions
only twenty pounds
seeking
rather
room;
marijuana
to the motel
pounds
fifty
buyer
planned
purchase
the
who
buyer
portion
produced
provide
ten
marijuana
the
pounds
marijuana
and stated that he would
ounces
cocaine.
buyers
remaining
within two
produce
support
argument
that he did
To
likely buyers
days; Mr. Skinner contacted
ability
intend
Final;
Agent
Agent
earshot of
within
cocaine,
marijuana
produce
Mr. Skin
arrange for
Final overheard Mr. Skinner
ner claims that the details of the sale were
delivery
ten ounces of cocaine
worked out and that his statements
never
was com-
marijuana
after the
transaction
concerning
transactions
Final
pleted.
designed
impress
empty promises
negotiations,
resolution
evidence of
and that
could never fulfill.
Skin
deals, and
the two
terms of
mere
ner
his statements as
characterizes
buyer
production of the first
evidenced
which this court
puffery
braggadocio,
ability
to facilitate the
Skinner’s intent
for estab
found to be an insufficient basis
of 100
of mari-
purchase and sale
lishing
quantity
drugs
in United
The dis-
juana and ten ounces
cocaine.
Ruiz,
F.2d 1174
States v.
—
U.S. —,
court
its determination
trict
based
S.Ct.
drug
agreed upon
terms of
(1991). Ruiz,
quantity on
is
1Q99 use; probability, buying personal court’s character- agreed the district “organizer sales; an of the defendant as and he ization controlled intended sentencing court’s reli- and the or leader” profits every skim off of sale. While factors, and stated that the above ance on Mangels did not “control” Mr. in Skinner coordinated, the “clear that Avila it was manager way enterprise a criminal of both procurement and the distribution would, organizing his central role (emphasis sup- and heroin.” Id. cocaine justified imposition of the section plied). 3Bl.l(c) enhancement. While sum, dis proper might directly In focus not have “controlled” Mr. considering trict court whether when Mangels buy- and the cocaine dealer/future 3Bl.l(c) two-point en apply the section fifty pounds marijuana er of of the role in the hancement is on the defendant’s spoke telephone, on the he indis- whom is undoubt offense. “Control over others” putably “organized” to dis- a defen edly compelling factor represented tribute. Mr. Skinner also his co-defen responsible more dant Agent Final that had numerous contacts particular dants for the commission of trade, drug in the him which enable However, emphasis offense. inordinate expedite pounds of the 100 distribution single factor ought placed on this be marijuana this transaction applica among the seven factors listed quick and ensure in future distribution emphasis note 3. on a discrete tion Such drug deals. Final also testified that (which only portion application an note he was introduced to Mr. Skinner (a) (b)) directly applies to subsections informant co- confidential who had sold 3Bl.l(e)’s from section un diverts attention In- past. caine for the defendant in the two-point en ambiguous mandate that the deed, record, as well as the district may only imposed where the hancement be explicit findings, supports applica- more than his co- defendant is 3Bl.l(c)’s two-point of section enhance- tion for the commission of the of defendants upon following factors list- ment based Being “organizer” of the of fense. (1) Mr. application ed in note 3: playing analogous aggravating fense or decision-making authority exercised equally compelling should factors role transactions; (2) Mr. details 3Bl.l(c) as exer application of section accomplice; recruited at least one cising control over others. (3) largest had the noted, district court As the offense; and planning organizing key figure distribution was the (4) key role in com- played pro- scheme. Mr. Skinner coordinated say of the offense. We cannot mission of cocaine and curement distribution clearly court was errone- offense, and, imposition the enhancement. ous in its culpable person the con- most that Mr. spiracy. The district court found to orchestrate several transac- Skinner was Acceptance Responsibility C. result in the sale of 100
tions that would permits Section 3E1.1 of Guidelines and ten ounces of two-point reduction from a defendant’s addition, cocaine. level “if the defendant base offense co-conspirator specifically found recognition and affirmative demonstrates Mangels, appeared Final’s *9 for acceptance personal responsibility of direction, Mr. had motel room at Skinner’s 3E1.1. his criminal conduct.” U.S.S.G. § conspiracy role in the as the a subordinate commentary 3 court noted that The district twenty-two pounds marijuana. of buyer of Mr. section 3E1.1 indicated that to respon- indisputably more reduc- not entitled to a section 3E1.1 for the offense than his co-defendant sible accepted full re- he had not tion because recruited distribu- Mangels. Mr. Skinner despite offense his sponsibility for his (persons making fifty-pound tor-buyers and not, Commentary provides: twenty-pound buys) guilty plea. in all 3 who were 1100 States United level. in offense reduction to prior guilty of plea of a Entry Cir.1992) (7th 637, 644 F.2d Leiva, 959 with v. combined of trial commencement F.2d 908 Camargo, v. States (citing in the United involvement of admission truthful give due Cir.1990)). must We (7th consti- will 185 conduct related and offense op unique court's the district acceptance of to of deference evidence significant tute fully a defendant's this of to evaluate purposes portunity for responsibility 18 U.S.C. may be responsibility. However, of acceptance section. Franklin, 902 defendant v. of the conduct States by 3742(e); United outweighed § denied, 498 acceptance such (7th with 501, 505 is inconsistent F.2d that 274, 112 L.Ed.2d responsibility. 906, 111 S.Ct. of 3E1.1, applica comment, deny- U.S.S.G. (quoting (n.3). (1990) 3E1.1, a district reverse 5). shall reduction, sen- note tion 3E1.1 ing the of acceptance concerning decision stated: tencing court because error for clear only that, prior to responsibility of part first of In terms " defendant whether think of question I trial, don’t of `[t]he the commencement is crimes for his guilty responsibility plead accepted to decided has he fact that credibil largely on particularly one, depending selected factual jury was " sentencing judge.' regarding admissions His ity significant. assessments been F.2d here, Guadagno, 970 responsibility States United my un- limited, based States Cir.1992) and United (quoting extremely (7th I case in this record derstanding F.2d McGuire, 957 of admissions truthful his omitted)). that believe (citations relat- and offense involvement far been pleaded not been—has conduct Although ed I think complete. and trial, accurate was consis than he his day less of guilty on of re- acceptance withheld he has the district that candid than tently less his in- of deal great for his role sponsibility extent concerning the court conse- activity, and in this volvement scheme. distribution and ishe finding that it’s quently testimony of unambiguous to Contrary accep- for the reduction sentencing entitled Skinner’s at Mr. Final responsibility. tance record tape incriminating and hearing Specifically, 74-75. Tr. at Sentencing negotiations, ings of responsible he was responsible that only denied he was that maintained more than defen to distribute that attempting twenty pounds denied he marijuana; In his letter twenty buy. Mangels was dant attempting mini he was court, that he cocaine; and ounces ten he was distribute claimed and his role mized person one more contacting in denied a heroin-addicted merely the victim marijuana. government overzealous and formant re accepted acceptance argues A reduction agents. guilty apply automatically pleading by does complete sponsibility guilty, illegal pleads conduct describing a defendant by merely because district F.2d Escobar-Mejia, department probation Franklin, The de- Judge Cir.1990); Mihm. a letter court completely only he has when 505-06, applies it maintains fendant at F.2d of actual guilt up to his “fesses admitted Cir.1992), re- F.2d Trussel, Escobar-Mejia, fense.” de when applied quires no reduction (noting that him a two- give refusing to claimed guilty, erred pleaded fendant, who level. his base reduction denied point others pawn more distribution *10 responsible the burden bears although of cocaine kilograms five than is entitled demonstrating
HOI
fore,
government
indicated he had distributed at
itself was
kilograms).
least seven
orchestrating
the transaction. Cf.
Carroll,
defendant’s reliance on
(6th Cir.1990) (defendant’s
efforts to
Trussel,
The defendant’s sentence affirmed. significant I find in it contrast Affirmed. (a) (b) 3B1.1, subsections subsection (c) “orga- draws no distinction between an ROVNER, ILANA DIAMOND nizer” or “leader” on the one hand and a Judge, concurring. “supervisor” “manager” or on the other— fully opinion I concur in the court’s qualifies one of these for the two-level separately merely write to add several enhancement. Thus the observation regarding propriety brief observations Commentary: pursuant of the enhancement to section relatively enterprises In small criminal 3Bl.l(c) of the Sentencing Guidelines. that are otherwise to be considered blush, might At it first seem counterin- scope in planning extensive caught tuitive to deem someone re- preparation, the distinction between or- sting operation “organizer.” verse ganization leadership, and that of case, all, government did not management supervision, is of less fortuitously upon stumble a narcotics significance larger enterprises Instead, already progress. transaction that tend to have delineated divi- once a confidential informant had intro- responsibility. sions of This is reflected Special Agent Skinner, duced Final to 3Bl.l(c). in the inclusiveness of § agent help purchasing solicited Skinner’s selling large 3B1.1, cocaine and quantity Background. of mar- U.S.S.G. See Unit ijuana. measure, Herrera, In at least some there- ed States v. 1000 n.
1102 others over control degree of some v. cised States United also see Cir.1989); (7th 1 of the offense commission Cir.1990). (8th 3 57 n. Pierce, 907 F.2d orga for been re must have or level of Skinner's if even Accordingly, carrying of purpose for the nizing others to characterize insufficient was sponsibility (emphasis at 1220 F.2d of 897 leader crime." or out the organizer an him as applied the still suffice Ninth supplied).1 would scheme, evidence Mares-Molina, concluding manager or supervisor rule him same render was 3B1.1(c) under enhancement support section thus to that v. See, States e.g., United no 3B1.1(c). where [were] appropriate "[t]here section not (11th 117, 118 that Mares Carrillo, 888 F.2d the conclusion support facts 3B1.1(c) enhancement (section respon curiam) otherwise or (per was control exercised sufficient was manag evidence where or upheld supervising, organizing, for sible was either defendant finding that support of in the commission ing others United "supervisor"); or a "organizer" sup an (emphasis at 770 F.2d 913 fense." 216, 222 F.2d 867 Mejia-Orosco, v. States plied). up 3B1.1(c) enhancement Cir.) (section (5th with holding inconsistent our isNor de finding that held where in United Tenth Circuit of opinion leader, manag organizer, "an fendant 1456, 1464-65 Reid, 911 F.2d v. States erroneous), supervisor" or er — U.S. —, Cir.1990), cert. (10th curiam, F.2d 868 per h'g denied re (1991). We 1074 L.Ed.2d 112 111 S.Ct. denied, 492 U.S. (5th 807 proof require Reid recently construed (1989). 602 3257, 106 L.Ed.2d direct either exercised defendant that hold our that out point Finally, I wish members the other over control indirect or of opinions not inconsistent ing is will or she before scheme criminal of a in United Circuits Ninth First and See or leader. organizer an be deemed (1st Cir. Fuller, 1217 897 F.2d States ante (discussed v. McGuire States United Mares-Molina, 1990), and Cir.1992). (7th n.4 n.2), F.2d at both Cir.1990). citedWe F.2d a defendant's indicates Reid Yet, itself proposition in Brown cases of these for the individuals other to marshal efforts a narcotics as status defendant's that a satisfy crime will executing the purpose render more, does distributor, without 1464. See F.2d at 3B1.1. section manager leader, "organizer, her an him or Litchfield, section meaning of within supervisor" or a defendant Cir.1992) ("to find our Like 1.1(c). 944 F.2d at 3B there or under leader organizer an Brown, cases two these opinion in own organiza or control elements must over lack control defendant's note supplied). (emphasis people") other tion imposi reversing a reason as others F.2d Rowley, Cf. 3B1.1(c) enhancement. a section tion of Cir.1992) (for a defendant 1357, 1364 1220-21; Mares- Fuller, at F.2d See definition within to fall Yet, each at Molina, F.2d 773-74. required always leader, have "we oth over control reveals opinion procured directed enhance of this non qua sine is not the ers sup (emphasis underlings") aid Fuller, First Circuit Thus, in ment. plied). exer must defendant "the stated merely coordinated whether Fuller construed in Mares-Molina dissent 1. The orga activities, controlling or without particular controlled proof require manager be deemed people, could nizing order other the crime Mares-Molina, majority 3B1.1(c). The 3B1.1(c) apply. See section purposes section Yet, negative, as set id. (dissenting op.). question in at 775-76 answered 773-74, con above, either held that man in fact Fuller concluded dissent forth while coordinating their a role or mon others a business thing, trol such agement aof at 1220. suffice. efforts would someone to render ey, be sufficient misleading construction somewhat meaning dissent's manager within the fact that springs from no doubt Fuller 3B1.1(c), 774-77. id. at posed Mares-Molina particular question
H03 Consequently, each of these cases leaves here, i.e.,
ample holding room for our bringing together
a defendant's role in
coordinating the other in a may
criminal scheme him render or her an
organizer scope within the of section 1.1(c),
3B even if the defendant did not nec
essarily control or command these other Paulino,
individuals. See United States 739, (6th Cir.1991) ("`A f ind
ing functioning that a defendant is as an necessarily or leader . . . does not directly controlling
mean that he is ") (quoting
individuals.' United States
Johnson, 1291-92 Cir. 1990)), U.S. —, 112 S.Ct.
315, 323, 660, 883, 257, 264, 116 L.Ed.2d (1991-92). reasons, For I these
agree that the district decision to
impose pursu the two-level enhancement 3B1.1(c)
ant to section was not erro
neous. SCHMIT, Plaintiff-Appellee,
William K. Compensation
Office of Workers’ Pro-
grams, Department of La-
bor, Intervening-Appellee,
ITT FEDERAL ELECTRIC INTERNA-
TIONAL; Employers Pacific Insurance
Company, Defendants-Appellants.
No. 92-1211. Appeals,
United States Court of
Seventh Circuit.
Argued Nov. 1992.
Decided 1993. Feb.
Rehearing Denied March