00-3748, 00-3795 & 00-3822 U.S. v. Schuh, et al.

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“Our review of the seven role-in-the-offense factors … confirms that the facts are inadequate to establish Schuh as an organizer or leader. See U.S.S.G. sec. 3B1.1, comment. (n.4). First, although the scope of the illegal activity was extensive, Schuh had little decision-making authority and played a minor role in planning or organizing the offense. Schuh did not supply the cocaine to the dealers or control who sold it, when they sold it, at what price they sold it, how they acquired it, how much or to whom they sold, what type they sold, or how many dealers could sell at Jocko’s at any given time. Moreover, the dealers were free to sell drugs elsewhere. Schuh’s participation in the dealing was limited. He was not a regular dealer, although he occasionally steered customers to the dealers and sometimes sold cocaine for the others. There is no evidence that Schuh recruited accomplices, and, although Schuh received cocaine from the dealers, he never claimed a larger share of the fruits of the crime in relation to the dealers. Therefore, because Schuh played no greater role in the offense than any of the other participants, see Mustread, 42 F.3d at 1103, we vacate Schuh’s sentence and remand for resentencing without an adjustment for being an organizer or leader.”

Vacated and remanded.

Appeals from the United States District Court for the Western District of Wisconsin, Shabaz, J., Rovner, J.