FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
E. Rodway and Rodway & Horodyski, P.A. on brief for
B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
Kayatta, Stahl, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
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).
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.
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
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.
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 fact that he was out while someone else got paid is often
the case that someone is running the show. I find a ...