United States v. McKinney ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1265
UNITED STATES OF AMERICA,
Appellee,
v.
RASHAAD MCKINNEY, a/k/a Dawson, a/k/a D,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Howard, Chief Judge,
Selya, Circuit Judge,
and Gelpí, District Judge.
Harris A. Mattson for appellant.
Jeanne D. Semivan, Special Assistant United States Attorney,
with whom Halsey B. Frank, United States Attorney, was on brief,
for appellee.
July 19, 2021
 Of the District of Puerto Rico, sitting by designation.
GELPÍ, District Judge. Rashaad McKinney ("McKinney")
entered a guilty plea to drug and firearm conspiracy counts. In
this appeal, he challenges the district court's application of a
three-level enhancement to his guideline sentencing range for his
role in the offense as a manager or supervisor, pursuant to
U.S.S.G. §3B1.1(b). McKinney's principal argument is that the
district court erred in finding that he exercised authority or
control over other participants so as to invoke the enhancement.
I. Background1
In 2017, the Bureau of Alcohol, Tobacco, Firearms and
Explosives in conjunction with the Drug Enforcement Administration
and Maine Drug Enforcement Agency investigated a drug conspiracy
extending throughout central Maine. The members of the drug
trafficking organization ("DTO"), transported heroin and cocaine
from Rochester, New York, and distributed the same principally in
the Augusta, Maine area. The leaders of the DTO, Quinton Spinks
and Deondray Warren, would transport the drugs from Rochester.
Once in Maine, Spinks or Warren provided them on consignment to
the other members of the DTO, including McKinney, for distribution
and return of proceeds.
McKinney and other members of the DTO availed themselves
1 The facts that follow are taken from the record,
particularly the indictment, plea agreement, presentence report,
and sentencing hearing transcript. See United States v. Santa-
Soler, 985 F.3d 93, 95 (1st Cir. 2021).
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of local individuals to drive them around Central Maine to deliver
crack and heroin to their customers. Four grand jury sources of
information acted as drivers for McKinney and often the drug
transactions occurred within the vehicles. These persons, in
turn, would be paid in cash or drugs for personal use.
McKinney and other members of the DTO obtained firearms
illegally via straw purchasers who made false statements and
representations to federal firearms licensees in Kennebec County,
Maine. McKinney would also compensate the straw purchasers who
acted as drivers with currency and narcotics for personal use.
Moreover, McKinney sent several of these firearms to DTO members
in Rochester.
On July 14, 2018, McKinney was indicted on multiple drug
and firearm counts. 2 He pleaded guilty to count one of the
Indictment for conspiring to distribute and possess with intent to
distribute heroin and cocaine base, in violation of 21 U.S.C. §§
846, 841(a)(1) and 841 (b)(1)(C) as well as count seven of the
Indictment for conspiring to violate several federal firearms
laws, to wit, 18 U.S.C. §§ 371, 922(a)(5), 922(a)(6) and
924(a)(1)(A).
At the sentencing hearing, the district court relied
heavily on the grand jury testimony of individuals involved in the
2Spinks and Warren, among other co-conspirators were also
charged in the indictment.
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conspiracy, including drivers and straw purchasers. Over
McKinney's objection, the district court found that he qualified
for a three-level enhancement for being a manager or supervisor of
the drug and firearm conspiracies, pursuant to U.S.S.G. §3B1.1(b).
Subsequently, the district court calculated an advisory guideline
range of 110 to 137 months and proceeded to sentence McKinney to
a downwardly variant sentence of 77 months of imprisonment as to
count one of the Indictment, and 60 months as to count seven, to
be served concurrently, followed by a three-year term of supervised
release.
II. Standard of Review
Appellate review of sentencing error claims involves a
two-step pavane. See United States v. Flores-Machicote, 706 F.3d
16, 20 (1st Cir. 2013). "We first examine any claims of procedural
error. If the sentence clears these procedural hurdles, we then
consider any claim that questions its substantive reasonableness."
United States v. Ilarraza, 963 F.3d 1, 7 (1st Cir. 2020)(internal
citations omitted). Because the appellant solely advances an
argument of procedural error, we do not address the substantive
reasonableness of his sentence, which ultimately fell
significantly below the applicable guideline range.
The government has the burden of proving the propriety
of an upward role-in-the-offense adjustment. See United States
v. Tejada–Beltrán, 50 F.3d 105, 113 (1st Cir. 1995). It must meet
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this burden by a preponderance of the evidence. United States
v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014). On appeal, we
review the district court's underlying factual findings for clear
error and legal questions (including the interpretation and
application of the sentencing guidelines) de novo. Id. at 359(citing United States v. Paneto, 661 F.3d 709, 715 (1st Cir.
2011)). "Where the raw facts are susceptible to competing
inferences, the sentencing court's choice between those inferences
cannot be clearly erroneous." Id. at 359 (citing United States
v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).
III. Discussion
McKinney claims that the district court erred in
concluding that he was a manager or supervisor of the drug
conspiracy because he directed people to buy firearms and told
them where to drive. In other words, the district court's
determination that he was a manager or supervisor was based
entirely on a finding that he requested and received specific
services from others in exchange for compensation. McKinney
posits that the district court's finding that he exercised
authority or control over local members of the conspiracy was
premised on a misinterpretation of U.S.S.G. §3B1.1(b).
Specifically, McKinney argues that the district court failed to
distinguish between offering payment for the performance of a
specific task on the one hand, and on the other hand, demanding
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compliance on the basis of an established role within the overall
conspiracy. In other words, in his view, there must exist a
relationship of coercion or authority under which he can demand
compliance. This error, McKinney contends, extended the meaning
of "directed action" beyond its intended place within the concept
of a "chain of command."
Under §3B1.1(b) a defendant's offense level is increased
by three levels if "[i]f the defendant was a manager or supervisor
. . . and the criminal activity involved five or more participants
or was otherwise extensive." The plain language of the Guidelines
requires that a two-step process be employed when determining the
applicability of this enhancement: (1) scope-that criminal
activity involved five or more participants or was otherwise
extensive, (2) status- that the defendant was a manager or
supervisor (but not an organizer or leader). See United
States v. Voccola, 99 F.3d 37, 44 (1st Cir. 1996).
McKinney does not dispute that the criminal conspiracies
in which he participated involved more than five criminal actors,
therefore, the scope element is met.3 The crux of McKinney's
3 At the sentencing hearing, the district court stated:
I should first note that there's no dispute
here that the conspiracy involved five or more
participants or was otherwise extensive. I
have already sentenced more than five
individuals for their respective roles in the
conspiracy and the sole issue is the
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contention lies in the district court's finding that defendant was
a manager or supervisor within the illegal scheme.
"We review a district court's fact-bound determination
of a defendant′s role in the offense for clear error." Id. "The
determination of an individual's role in committing an offense is
necessarily fact-specific. Accordingly, appellate review must be
conducted with considerable deference." United States v. Soto-
Peguero, 978 F.3d 13, 23 (1st Cir. 2020), cert. denied, 141 S. Ct.
1430 (2021)(quoting United States v. Cruz, 120 F.3d 1, 3 (1st Cir.
1997)). A single instance of managing the actions of others can
substantiate the enhancement. See Voccola, 99 F.3d at 44.
Manager/Supervisor Role Enhancement
Although the guidelines do not define the term
"supervisor" or "manager," "we have held that '[e]vidence of the
defendant′s role in the conspiracy 'may be wholly circumstantial,'
and need only show that he exercised authority or control over
another participant on one occasion.'" United States v. Cortés-
Cabán, 691 F.3d 1, 28 (1st Cir. 2012) (quoting United States v.
Flores–de–Jesús, 569 F.3d 8, 34 (1st Cir. 2009)); see also
Cruz, 120 F.3d at 3 (noting that the analogous enhancement based
on "organizer, leader, manager, or supervisor" status in U.S.S.G.
§3B1.1(c) applies if "the defendant, in committing the offense,
defendant's actual role and whether he was a
manager or a supervisor.
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exercised control over, organized, or was otherwise responsible
for superintending the activities of, at least one of those other
persons").
With respect to exhibiting control as a manager or
supervisor, the defendant's conduct must satisfy two conditions.
First, "for the enhancement to apply, it is not enough to show
that 'the defendant merely controlled, organized, or managed
criminal activities; rather, he must instead control, organize, or
manage criminal actors.'" Cortés-Cabán, 691 F.3d at 29 (quoting
Flores–de–Jesús, 569 F.3d at 34); see United States v. García-
Sierra, 994 F.3d17, 37 (1st Cir. 2021)(quoting United States v.
Goldberg, 105 f.3d 770, 777 (1st Cir. 1997)) ("A supervisory or
managerial role is evidenced by some manifestation of authority on
the part of the defendant. The authority possessed by the
defendant may be fairly minimal; "defendant need not" be at the
top of a criminal scheme to be a "manager or supervisor.")
Second, our case law is clear —— contrary to McKinney's
assertions —— that a defendant need not possess a formal, coercive
and hierarchal relationship with a subordinate in order to qualify
for the enhancement. The key inquiry is whether the defendant
"exercised control over, managed, organized, or superintended the
activities" of another criminal actor." Ilarraza, 963 F.3d at 13;
see United States v. García-Sierra, 994 F.3d 17, 37 (1st Cir. 2021)
(For the enhancement to apply, the defendant needs only to
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"exercise[] some degree of authority or control" over another
actor). Likewise, that "minimal" authority, García-Sierra, 994
F.3d at 37, may be exercised on "one occasion," id. (quoting
United States v. Savarese, 686 F.3d 1, 20 (1st Cir. 2012)). This
is a relatively low bar, and the fact that control may be exhibited
on a single occasion reinforces the notion that a formal chain of
command is not necessary for the enhancement to apply. The record
must evince that, "in committing the offense, the defendant
exercised control over, managed, organized, or superintended the
activities of at least one other participant." Ilarraza, 963 F.3d
at 13 (quoting United States v. Al-Rikabi, 606 F.3d 11, 14 (1st
Cir. 2010)).
At sentencing, the district court based its finding that
the §3B1.1(b) enhancement applied to McKinney after addressing the
record evidence in a painstakingly detailed fashion. In terms of
recruitment of associates, nature and scope of McKinney′s illegal
activity, and authority over others, the district court described
the same as follows:
[T]he record reflects that the defendant did,
in fact, recruit addicts to drive for him, to
house him, and actually to buy firearms for
the conspiracy. The right to a larger share of
the proceeds is not a matter of record. His
participation in planning or organization is
not a matter of record.
The nature and scope of the illegal activity
included a fairly extensive drug distribution
and firearms conspiracy in central Maine.
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There were substantial amounts of heroin and
crack cocaine that were distributed by virtue
of the conspiracy.
Turning to the firearms conspiracy, at least
12 firearms were illegally obtained. As part
of the conspiracy, the defendant himself was
involved in both aspects of the conspiracy.
The defendant was involved for nearly one year.
The defendant himself was a resident of Maine
at the time and a former resident of Rochester,
and he was a link between the Rochester and
Maine communities. Turning to his authority
over others. There's evidence that the
defendant hired other individuals to drive for
him extensively. In fact, one person mentions
that he was the defendant's chauffeur and that
he directed the gun sales.
The district court further specifically highlighted
instances in which McKinney exercised control over four
individuals who, under his direction, drove him while he engaged
in illicit activity. They also purchased or obtained firearms for
him, as well as sold drugs. The district court also pointed to
additional facts that, we conclude, adequately support its finding
that McKinney exhibited control over other criminal actors
sufficient to trigger the enhancement. See Ilarraza, 963 F.3d at
13. To begin, McKinney played an important role in recruiting
individuals for the conspiracy and compensating them in cash or
drugs. He instructed various individuals to drive him to precise
locations - multiple times per day - in order to complete illicit
drug transactions. Likewise, McKinney gave detailed instructions
to the straw purchasers of firearms, including which firearms to
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purchase and what to exactly write on disclosure forms. Taken
together, we think it indisputable that McKinney's role
constitutes enough management and coordination of others necessary
to trigger the enhancement. See Cortés-Cabán, 691 F.3d at 29. To
cinch the matter, McKinney sent some of the firearms obtained
through straw purchasers back to his superiors across state lines.
This fact underscores McKinney's own managerial role; it
demonstrates the extent to which he coordinated his subordinates
and their actions for the benefit of the conspiracies. See García-
Sierra, 994 F.3d at 37.
IV. Conclusion
In light of the overwhelming evidence meticulously
alluded to by the district court, we conclude that it did not err
in finding that McKinney exercised authority or control over
criminal actors and thus correctly applied the §3B1.1(b)
enhancement. Accordingly, the sentence and judgment of the
district court are AFFIRMED.
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