United States v. Fred McGee ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3312
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRED MCGEE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18CR00118-001 — William M. Conley, Judge.
____________________
ARGUED OCTOBER 1, 2020 — DECIDED JANUARY 15, 2021
____________________
Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
MANION, Circuit Judge. Fred McGee pleaded guilty to pos-
session with intent to distribute 100 grams or more of heroin
and fentanyl, in violation of 21 U.S.C. § 841(a)(1). He was sen-
tenced to 84 months’ imprisonment, followed by a four-year
term of supervised release. On appeal, he argues the district
court erred in (1) imposing a leadership enhancement, (2) fail-
ing to afford him a meaningful opportunity to allocute, and
2 No. 19-3312
(3) calculating his criminal history points. Because we find the
court erred, we remand for resentencing.
I. Background
On January 31, 2018, McGee and two other men, Wayne
Frazier and Terry Glaspie, were transporting heroin from Chi-
cago to Minneapolis. Frazier drove, with McGee and Glaspie
as passengers. Police stopped the vehicle for speeding on the
highway. They ascertained none of the men had valid driver’s
licenses, and the vehicle was registered to McGee’s girlfriend,
Charity Schaefer. McGee consented to a canine “free air sniff”
around the vehicle’s perimeter, and the canine alerted to the
presence of drugs. Eventually, police found more than 100
grams of heroin and fentanyl inside the vehicle behind the
glove box. McGee was later charged with possession with in-
tent to distribute, in violation of 21 U.S.C. § 841(a)(1).
On February 5, 2018, police investigators interviewed
Glaspie. Glaspie stated that McGee asked him to accompany
McGee from Chicago to Minneapolis. The next day, an inmate
housed in the same housing block as McGee spoke with in-
vestigators. He said McGee told him that the heroin the police
found belonged to McGee, not Frazier or Glaspie. The inmate
also stated that Glaspie arranged for Frazier to drive to Min-
neapolis, since McGee had previously been pulled over with-
out having a valid driver’s license, and McGee paid Frazier to
drive.
While in jail, McGee called Charles McMillan, a drug
dealer with whom he previously worked. McMillan scolded
McGee for hiding the drugs behind the glove compartment
and told McGee that he should have hidden them in the ceil-
ing. McMillan also blamed McGee for failing to instruct
No. 19-3312 3
Frazier to slow down before the men were stopped on Janu-
ary 31 during the transport.
On August 30, 2018, Glaspie spoke with investigators
again. He told them that on the day the men were caught trav-
eling with drugs, McGee came to Chicago to pick up him and
Frazier to transport heroin to Minneapolis, “where McGee
distributed it through his own local network.” McGee hid the
drugs in the vehicle before picking up Glaspie and Frazier.
Since McGee did not have a valid driver’s license, Glaspie
agreed to “act as a lookout.” Glaspie also stated that McGee
was distributing heroin for McMillan and visited Chicago
every month to retrieve heroin from McMillan for distribution
in Minneapolis.
On October 11, 2018, Glaspie testified before a grand jury
that McGee worked for McMillan for several years, distrib-
uting heroin in Minneapolis. Glaspie also worked for McMil-
lan and was paid in heroin. On the day of the arrest, both
McGee and McMillan had requested that Glaspie ride to Min-
neapolis with McGee. Glaspie did not want to drive since he
did not have a license, “so McMillan suggested having Frazier
drive them.”
On August 19, 2019, McGee pleaded guilty to possession
with intent to distribute heroin and fentanyl. The district
court accepted his guilty plea and convicted him. In calculat-
ing his offense level, the Probation Office recommended a
two-level enhancement for being an “organizer, leader, man-
ager, or supervisor in the criminal activity” since “Glaspie
acted at the defendant’s direction in their jointly undertaken
criminal activity.” McGee objected to the two-point enhance-
ment.
4 No. 19-3312
In determining McGee’s criminal history points, the Pro-
bation Office added three points from a January 1, 2007, DUI
conviction in which McGee was sentenced to six months in
jail and 36 months’ probation. However, his probation was
later revoked, and he was sentenced to an additional 210 days
in jail. McGee objected.
The court found that the length of McGee’s imprisonment
for the January 1, 2007, DUI conviction exceeded thirteen
months, and thus, his criminal history points were properly
calculated. Second, it responded to McGee’s objection to the
imposition of a leadership enhancement under § 3B1.1(c) of
the Sentencing Guidelines. The court explained the two-level
enhancement applied because McGee “ran, however badly, a
Minneapolis offshoot of the larger heroin distribution enter-
prise based out of Chicago, including directing others in the
transportation of the product.”
The court calculated McGee’s advisory Guidelines range
as 92 to 115 months. It also noted that if it were not to impose
the leadership enhancement, the Guidelines range would be
77 to 96 months.1 The court clarified it had not decided on a
sentence, and it would consider both ranges.
After hearing from defense counsel, the court addressed
McGee. It asked him various questions, including questions
about his risk of recidivism. After McGee responded, the
court expressed its concerns that McGee failed to understand
the efforts required to reform his behavior. Then, without ask-
ing whether McGee had anything further to say, the court
1 In arguing for a Guidelines sentence, the government also referenced
the 77-to-96-month range.
No. 19-3312 5
sentenced McGee to 84 months’ imprisonment followed by a
four-year term of supervised release. McGee appealed.
II. Discussion
A. Leadership Enhancement
McGee first argues that the court erred in imposing a two-
point leadership enhancement under § 3B1.1(c) of the Sen-
tencing Guidelines. When considering whether an enhance-
ment under § 3B1.1 was properly imposed, “we review the
district court’s factual determinations for clear error, and we
review whether those facts support the enhancement de novo.”
United States v. House, 883 F.3d 720, 723 (7th Cir. 2018). This
Court will reverse the district court’s determination “only if
we are left with a ‘definite and firm conviction that a mistake
has been made.’” United States v. Harris, 791 F.3d 772, 780 (7th
Cir. 2015) (quoting United States v. Johnson, 489 F.3d 794, 796
(7th Cir. 2007)).
Under § 3B1.1, a defendant is subject to an increased of-
fense level based on his or her role in the offense. “[T]he pri-
mary goal in applying § 3B1.1 should be to make a ‘com-
monsense judgment about the defendant’s relative culpability
given his status in the criminal hierarchy.’” House, 883 F.3d at
724 (quoting United States v. Dade, 787 F.3d 1165, 1167 (7th Cir.
2015)). A defendant’s offense level is increased by two levels
if he or she “was an organizer, leader, manager, or supervisor
in any criminal activity” not otherwise described in the sec-
tion. U.S.S.G. § 3B1.1(c). Typically, this means that “the de-
fendant ‘had some real and direct influence’ on other partici-
pants in the criminal activity.” United States v. Mankiewicz, 122
F.3d 399, 405 (7th Cir. 1997) (quoting United States v. Mustread,
42 F.3d 1097, 1103 (7th Cir. 1994)).
6 No. 19-3312
A defendant is subject to the enhancement if he or she sat-
isfies any of the roles in § 3B1.1(c). Although the terms used
for each role are not defined by the Guidelines, we have held
that a supervisor or manager “tells people what to do and de-
termines whether they’ve done it.” United States v. Figueroa,
682 F.3d 694, 697 (7th Cir. 2012). An organizer or leader exer-
cises a greater extent of authority than a supervisor or man-
ager. See § 3B1.1 n.4.2
In this case, the district court found the enhancement ap-
plied because (1) McGee served as a leader or manager of a
“Minneapolis offshoot” of the Chicago operation and directed
others in transporting the drugs, and (2) McGee “organized
and recruited” Frazier and Glaspie to help him transport the
heroin and fentanyl on the night of the offense. The court
2 Section 3B1.1 note 4 provides several factors typically used to distin-
guish “a leadership and organizational role from one of mere manage-
ment or supervision.” These are the (1) exercise of defendant’s decision-
making authority, (2) nature of defendant’s participation in the commis-
sion of the offense, (3) recruitment of accomplices, (4) claimed right to a
larger share of the fruits of the crime, (5) degree to which defendant par-
ticipated in planning or organizing the offense, (6) nature and scope of the
illegal activity, and (7) degree of control and authority defendant exer-
cised over others. § 3B1.1 n.4. These factors need not be used to distinguish
the different roles in this case, since McGee’s fulfillment of any of the roles
would be sufficient. However, in the past, we have found the factors are
also relevant in determining whether a defendant “had a supervisory role
at all.” United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008). We have
since questioned the usefulness of applying the factors when considering
whether a two-level enhancement is warranted. See Figueroa, 682 F.3d at
696; United States v. Bennett, 708 F.3d 879, 891 (7th Cir. 2013) (following
Figueroa). In any event, “slavish adherence to [the factors] is unnecessary:
the ultimate question is what relative role the defendant played.” Bennett,
708 F.3d at 891 (quoting Mustread, 42 F.3d at 1104, n.3).
No. 19-3312 7
provided no real explanation about how it arrived at these
conclusions.
The record lacks evidence to support the district court’s
reasoning. First, nothing indicates McGee supervised others
during drug distributions in Minneapolis. According to the
evidence, Glaspie stated McGee distributed the heroin he ob-
tained from Chicago in Minneapolis “through his own local
network.” This evidence merely suggests McGee was a “mid-
dleman.” See United States v. Brown, 944 F.2d 1377, 1382 (7th
Cir. 1991) (“[M]iddleman status alone cannot support a find-
ing that a defendant was a supervisor, manager or leader of a
criminal activity, and thus was more culpable than others for
the wrongdoing—the central concern of § 3B1.1.”). Distrib-
uting drugs through his own local network could mean that
McGee distributed drugs to other dealers who in turn distrib-
uted drugs to buyers. It could also mean McGee had a local
network of buyers to whom he distributed the drugs. Under
either interpretation, there is no evidence indicating that
McGee exercised any control or authority over this unknown
group of people. See United States v. Weaver, 716 F.3d 439, 443–
44 (7th Cir. 2013) (finding a three-level supervisory role en-
hancement was improperly imposed absent evidence that a
drug dealer supervised his buyers, who were also drug deal-
ers).
Second, McGee’s interactions with Frazier and Glaspie do
not justify imposition of an enhancement under § 3B1.1(c) be-
cause there was no evidence McGee played a superior role.
The district court found McMillan was the overall leader of
the operation while McGee played an “intermediate role.”
McGee and Glaspie both worked for McMillan. Although
McGee asked Glaspie to accompany him from Chicago to
8 No. 19-3312
Minneapolis, Glaspie and McGee were both already employ-
ees of McMillan. Without additional evidence, Glaspie acting
as a lookout in the transportation of the drugs is not enough
to establish that McGee had any real and direct influence over
Glaspie. See id. at 444 (“Finally, the enhancement requires on-
going supervision, not a one-off request from one equal to an-
other during the course of the criminal activity.”).
Similarly, the evidence shows only that McGee paid Fra-
zier to drive but did not recruit him. Instead, Glaspie or
McMillan suggested Frazier act as the driver. There is no evi-
dence of McGee controlling how Frazier drove. In fact,
McMillan blamed McGee for not telling Frazier to slow down.
There is simply no evidence of McGee managing or supervis-
ing Frazier or Glaspie.3 From the scant record, it is not evident
that these interactions with Frazier and Glaspie make McGee
more culpable.4 For these reasons, the district court erred in
imposing a two-level enhancement.5
3 It is also noteworthy that there was no further factual development
at sentencing. The government did not present evidence of McGee’s lead-
ership role or even argue for a leadership enhancement.
4 The government also argues McGee had supervisory authority over
his girlfriend, Schaefer. It cites to record evidence showing McGee
planned to have his girlfriend remotely wipe his phone and collect on his
debts to bail him out of jail. The government also references Schaefer trav-
elling to Chicago with McGee to pick up the heroin. Schaefer’s mere pres-
ence does not establish that she was involved. Further, any attempts to
cover up the crime or assist McGee afterwards do not suggest a supervi-
sory role over her or even that she was involved in the crime.
5The record does contain evidence from which the court could have
found McGee exercised authority over the property (namely, contraband)
and activities of the criminal organization, but a defendant must exercise
control over “one or more other participants,” to be subject to an
No. 19-3312 9
It is no defense that McGee was sentenced below the 92-
to-115-month Guidelines range. The court imposed a sentence
of 84 months with the supervisory role enhancement. This is
within the 77-to-96-month range without the enhancement.
However, “[w]hen a defendant is sentenced under an incor-
rect Guidelines range—whether or not the defendant’s ulti-
mate sentence falls within the correct range—the error itself
can, and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). The fact
the court chose to sentence below the Guidelines range in the
first instance might indicate the court would impose a lower
sentence after properly calculating the Guidelines range, but
we are ill-equipped to speculate. The operative circumstance
which compels our decision is the record does not indicate
what the court “might have done had it considered the correct
Guidelines range.” Id. at 1347. Thus, without opining on what
sentence should be imposed, we vacate and remand for resen-
tencing.
B. Right of Allocution
Our decision on the first issue renders moot the issue of
the adequacy of McGee’s allocution. We need not decide
whether denial of McGee’s right of allocution amounted to
plain error since he will have another opportunity for allocu-
tion on remand. See United States v. Mobley, 833 F.3d 797, 801
(2016) (explaining a general remand is preferable when a
enhancement under § 3B1.1. See § 3B1.1 n.2; see generally, U.S.S.G., Appen-
dix C, Amendment 500 (Nov. 1, 1993); see also United States v. Fones, 51 F.3d
663, 669 (1995) (explaining “control over at least one other participant” is
required).
10 No. 19-3312
“component part[]” of a sentence is disturbed on appeal). We
expect any issues in allocution will be addressed at that point.
C. Criminal History Points
Both parties agree the court miscalculated McGee’s crimi-
nal history points by erroneously considering a DUI convic-
tion from 2007. The court added three criminal history points
for the 2007 conviction because it mistakenly found the sen-
tence for that conviction exceeded thirteen months.6 See gen-
erally U.S.S.G. § 4A1.1. McGee concedes that the error is not
an independent basis for a remand, since it did not affect his
criminal history category or Guidelines range. However, since
we remand on the leadership enhancement issue, we also in-
struct the court to fix this error upon resentencing.
III. Conclusion
The record does not contain evidence to support the dis-
trict court’s imposition of a leadership enhancement in calcu-
lating McGee’s Guidelines range. Accordingly, we VACATE
the judgment of the district court and REMAND for resen-
tencing, consistent with this opinion.
6 At most, the sentence for that conviction equaled, but did not exceed,
thirteen months.