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United States v. Payne

United States Court of Appeals, First Circuit

January 31, 2018

UNITED STATES OF AMERICA, Appellee,
v.
LEON PAYNE, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          Peter E. Rodway and Rodway & Horodyski, P.A. on brief for appellant.

          Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.

          Before Kayatta, Stahl, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         The guidelines used by federal judges to gauge the appropriate length of sentences in criminal cases call for considering the defendant's role in the criminal activity giving rise to the conviction. With exceptions not relevant here, those guidelines recommend a longer sentence for one who supervises the criminal activity of another, an even longer sentence for one who manages or supervises criminal activity involving five or more participants, and a sentence still longer for an "organizer or leader" of criminal activity involving five or more participants. See U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 3B1.1 (U.S. Sentencing Comm'n 2016).

         In this case, the district court found Leon Payne to have been an organizer or leader of a conspiracy of five or more persons to procure and distribute cocaine and heroin in and around Portland, Maine. As a result, the district court enhanced Payne's offense level by four levels, resulting in a guideline sentencing range of seventy to eighty-seven months. Payne argues, as he did in the district court, that the evidence supported only a three-level enhancement for being a "manager or supervisor, " rather than an organizer or leader, calling for a guideline range of sixty-three to seventy-eight months. Because Payne preserved his claim of factfinding error by the sentencing court, we review for clear error. United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017). For the following reasons, we affirm his sentence.

         I.

         We distinguish a "leader" or "organizer" of a criminal enterprise from a lesser "supervisor" or "manager" by considering, among other things, the factors discussed in an application note to Section 3B1.1. Those factors are "the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others." U.S.S.G. § 3B1.1, comment. (n.4) (the "application note").

         The evidence tendered by the government to prove Payne's role in the criminal conspiracy consisted primarily of recordings of wiretapped conversations between Payne and two co-conspirators made while Payne was temporarily incarcerated in New York for a probation violation a few months before his arrest in Maine. Additionally, the pre-sentence report ("PSR") stated, and Payne did not contest, that he was the person who arranged for the acquisition of drugs from New York via a courier. Finally, the parties agreed below and agree on appeal that the district court reasonably found five or more participants in the relevant criminal activity.

         After reviewing the evidence, the district court stated:

I reviewed the language of 3B1.1 and the commentary. I find this defendant, as indicated by the Government, did exercise a high degree of control and authority. He was the leader of this criminal activity. He organized it. Unfortunately for him, his degree of organization dissolved during the period of time he was in jail and he was complaining about how disorganized his subordinates were and how they screwed up the plan.
The fact that he was out while someone else got paid is often the case that someone is running the show. I find a ...

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