Sentencing – Manager or supervisor enhancement

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Sentencing – Manager or supervisor enhancement

Where all the defendant did was “front” controlled substances to his co-conspirators, the district court erred in enhancing his sentence as a manager or supervisor pursuant to U.S.S.G. 3B1.1(b).

“The district court deemed it significant that Weaver was cautious and budged little on matters such as price, delivery point, and quantity. Indeed, Weaver sometimes kept his customers waiting and even decided at times not to honor their requests for specific delivery times. But none of that makes him a manager or supervisor of his customers. He did not tell Wilkey or Dale what price they had to charge their customers, or impose territorial limits on their sales, or set distribution quotas. And presumably, if Wilkey and Dale did not resell the product or sold it at a loss, they would nevertheless remain indebted to Weaver at $1,700 per ounce. A manager or supervisor in a drug dealing enterprise (though he may surely mete out some punishment for the low-level dealers who performed inadequately) would have to eat that loss just as a retail store manager would assume the loss arising from the poor performance of a floor salesman. The best that can be said for applying the increase is that Weaver generally pushed his wares aggressively and demanded prompt payment, though sometimes would get low marks for customer service. Weaver’s interest in a quick turnaround, however, doesn’t make Wilkey or Dale his underlings; as the probation officer appeared to understand, Weaver simply ‘instructed them to promptly sell’ the methamphetamine ‘so he could distribute more to them.’ Trying to sell more while getting paid is what merchants—not necessarily managers and supervisors—do. See Vargas, 16 F.3d at 160; Pagan, 196 F.3d at 893; Mustread, 42 F.3d at 1104-05; United States v. Sayles, 296 F.3d 219, 225 (4th Cir. 2002); United States v. Medina, 167 F.3d 77, 81 n.4 (1st Cir. 1999); United States v. Toro-Aguilera, 138 F.3d 340, 343 (8th Cir. 1998).”

Vacated and Remanded.

12-3324 U.S. v. Weaver

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Flaum, J.

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