United States v. Payne , 881 F.3d 229 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1382
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]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
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.
January 31, 2018
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.
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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:
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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 four level
enhancement.
The district court also found "the facts as set forth in the
[PSR]."
Payne does not challenge any of the evidence in the
sentencing record. Rather, he argues that the court's foregoing
factual findings insufficiently supported the conclusion that
Payne was an "organizer or leader," and that the evidence put
forward by the government could not support such a conclusion.
The district court's findings collectively tracked four
of the relevant factors set forth in the application note: Payne's
decision-making authority, the nature of Payne's participation in
the conspiracy, the degree of Payne's participation in organizing
the offense, and the control Payne exercised over others. See
U.S.S.G. § 3B1.1, comment. (n.4.) Contrary to Payne's arguments
to us, there is no requirement that the district court specifically
find whom the defendant controlled or how he did so. See United
States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (there is "no
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such requirement in sentencing determinations" that a district
court provide "subsidiary findings or . . . an explanation as to
the district court's own reasoning process" provided the district
court's findings are sufficient to enable appellate review). The
record, in turn, supported the district court's findings. Payne
was recorded reminding a co-conspirator that Payne had previously
given him instructions about what to do if anything went wrong,
describing whom Payne had and had not left "in charge of" the
operation while he was in jail, and criticizing the performance of
other participants. As noted, his own activity included arranging
for a courier to get the drugs from New York to Maine. And the
court's mention of Payne being "out while someone else got paid"
fairly suggests that Payne was not at the retail end of the
transactions in the plan, but rather had made, and lost, an initial
investment to purchase the drugs. See United States v. Matthews,
749 F.3d 99, 105 (1st Cir. 2014) (the court may "draw commonsense
inferences from the evidence").
Payne concedes that he was a supervisor or manager. But
to say he was only that is to imply that someone else was the
leader to whom the supervisor reported. Here, though, there is no
evidence that any participant occupied a position superior or equal
to that occupied by Payne. In other words, this was not a five-
person group with one supervisor reporting to someone else who
organized or led the efforts of several groups. This was a group
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of at least five participants in which Payne is fairly seen as a
leader accountable to no one else.
It is true that the district court did not rely on all
of the factors listed in the application note. For example, the
district court did not find that Payne was paid a disproportionate
share of the proceeds. Our precedent is clear, though, that
"[t]here need not be evidence of every factor before a defendant
is found to be a leader or organizer," United States v. Talladino,
38 F.3d 1255, 1260 (1st Cir. 1994) (internal quotation marks
omitted).
Our conclusion here also dispenses with Payne's argument
that the record as a whole cannot support the four-level
enhancement. Reversal for clear error requires the court, "upon
whole-record-review," to have formed a "strong, unyielding belief
that a mistake has been made." Nuñez, 852 F.3d at 144 (internal
quotation marks omitted). We are left with no such belief here.
The uncontested factual record supports the court's conclusion
that Payne "was the leader of this criminal activity."
Accordingly, finding no clear error, we affirm the
district court.
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