United States v. Cory Freyermuth ( 2023 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 22-2814
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    CORY M. FREYERMUTH,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Western District of Wisconsin.
    No. 3:21CR00047-002 — James D. Peterson, Chief Judge.
    ____________________
    ARGUED JULY 12, 2023 — DECIDED AUGUST 7,2023
    ____________________
    Before SYKES, Chief Judge, and ROVNER, and WOOD, Circuit
    Judges.
    ROVNER, Circuit Judge. Cory Freyermuth received a
    102-month prison sentence for conspiring to distribute meth-
    amphetamine and launder money. See 
    21 U.S.C. §§ 841
    (a)(1),
    846; 
    18 U.S.C. § 1956
    (h). He appeals that sentence, arguing
    that the district judge should have applied a minor-role re-
    duction. See U.S.S.G. § 3B1.2. Because the judge adequately
    2                                                  No. 22-2814
    compared Freyermuth’s role to the average conspiracy mem-
    ber’s and applied the relevant guideline factors, we affirm.
    I. Background
    Freyermuth and five others were indicted by a Wisconsin
    grand jury for their involvement in a conspiracy to distribute
    large quantities of methamphetamine. The other participants
    included Freyermuth’s brother, his brother’s girlfriend, and
    three regional dealers. Freyermuth pleaded guilty to conspir-
    ing to both distribute over 50 grams of methamphetamine and
    launder money.
    After the district judge accepted Freyermuth’s plea, the
    probation office prepared a Presentence Investigation Report
    (PSR), which described Freyermuth’s role in the conspiracy.
    According to that report, Freyermuth—at his brother’s direc-
    tion—received drug shipments, leased a storage unit to store
    the drugs, delivered the drugs to the regional dealers, col-
    lected money from the dealers, and sent that money to his
    brother and brother’s girlfriend. Based on these activities, the
    PSR concluded that Freyermuth was “integral” to the conspir-
    acy, and a minor-role reduction was not warranted.
    Freyermuth objected, arguing that the reduction was
    justified because he was “essentially [his brother’s] drug
    mule”: Relative to his co-conspirators, he was uninvolved in
    decision-making and poorly compensated. The probation
    office disagreed, concluding that Freyermuth’s “numerous
    duties”—receiving shipments, maintaining a storage unit,
    delivering drugs to the dealers, collecting proceeds, and
    wiring proceeds back to his brother—precluded him from the
    minor-role reduction. Without the reduction, Freyermuth’s
    total offense level was assessed at 37 and criminal history
    No. 22-2814                                                 3
    category at III, yielding a guideline imprisonment range of
    262 to 327 months.
    Freyermuth again raised his minor-role arguments in his
    sentencing memorandum and at his sentencing hearing. First,
    he argued that his role in the conspiracy was determined by
    his brother’s “extraordinarily specific” instructions, in
    marked contrast to the dealers, who operated “more like
    business partners.” Second, he cited application note 3(A) to
    § 3B1.2 of the Guidelines, which recommends a minor-role
    adjustment for one whose participation in a drug conspiracy
    was limited to transporting or storing drugs. A minor-role
    reduction would have lowered Freyermuth’s offense level by
    six—two levels under § 3B1.2 and four levels under
    § 2D1.1(a)(5)—to 31, which would correspond to a sentencing
    range of only 135 to 168 months.
    The district judge rejected Freyermuth’s minor-role argu-
    ment. The judge stated that he had reviewed the relevant
    guidelines and application notes, and concluded that Frey-
    ermuth’s conduct fell outside the scenario described in appli-
    cation note 3(A). Freyermuth’s role, the judge said, was “mul-
    tifaceted”: he stored the drugs “relatively independently,”
    maintained the inventory, and delivered the drugs to the
    dealers—"it wasn’t just like he was the courier[.]” The judge
    added that Freyermuth also collected and laundered the con-
    spiracy’s proceeds, which enhanced his knowledge of the
    conspiracy’s “scale.” The judge acknowledged that Frey-
    ermuth’s discretion was limited by his brother’s instructions
    but found that factor insufficient to justify a reduction. The
    judge imposed a sentence of 102 months, well below the
    guidelines range, to run concurrently with a sentence of the
    same length on the money laundering count.
    4                                                    No. 22-2814
    II. Discussion
    On appeal, Freyermuth challenges only the denial of the
    minor-role reduction, arguing that the judge did not appro-
    priately consider the factors set forth in the commentary to
    § 3B1.2 and erroneously denied the reduction despite finding
    facts that were sufficient to grant it. This appeal presents a
    mixed question of law and fact. We review the district judge’s
    factual findings for clear error and its interpretation of the
    Sentencing Guidelines de novo. United States v. Campuzano-
    Benitez, 
    910 F.3d 982
    , 989 (7th Cir. 2018).
    The minor-participant reduction applies if the defendant
    can show by a preponderance of the evidence that he was
    “substantially less culpable than the average participant” in
    the conspiracy. United States v. Orlando, 
    819 F.3d 1016
    , 1025
    (7th Cir. 2016) (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)). To
    determine whether the reduction applies, courts must
    evaluate several, non-exhaustive factors, including the
    defendant’s knowledge of the conspiracy; his influence in
    planning, organizing, and decision-making; his individual
    participation (including the discretion he had therein); and
    the degree to which he stood to benefit from the conspiracy.
    U.S.S.G. § 3B1.2 cmt. n.3(C). Although district judges need
    not explicitly consider every factor, we look for sufficient
    indication from the record that the judge was aware of the
    factors. Campuzano-Benitez, 
    910 F.3d at
    989–90.
    Freyermuth insists that the district judge erred by basing
    his decision on Freyermuth’s multifaceted role rather than
    considering the factors set forth in note 3(C) to § 3B1.2. But the
    judge’s reasoning for denying the reduction appropriately
    tracked the factors set forth in note 3(C). The judge, for in-
    stance, addressed the first factor, finding that Freyermuth’s
    No. 22-2814                                                    5
    multifaceted role informed him of the conspiracy’s “scale.”
    See U.S.S.G. § 3B1.2 cmt. n.3(C)(i). And the judge recognized
    Freyermuth’s minimal influence in planning, organizing, and
    decision-making; the judge acknowledged as much when he
    stated that Freyermuth worked “under the ultimate direc-
    tion” of his brother. See U.S.S.G. § 3B1.2 cmt. n.3(C)(ii)–(iii).
    Finally, the judge explicitly discussed Freyermuth’s extensive
    participation—storing and transporting the drugs, plus col-
    lecting and laundering the proceeds—that involved him in
    most of the conspiracy’s operations. See id. § 3B1.2
    cmt. n.3(C)(iv).
    Freyermuth also argues that the judge, by focusing on his
    multifaceted role, did not appropriately compare his role to
    that of the average conspiracy-member. Under application
    note 3(A), a minor-role reduction is warranted when a
    defendant is “substantially less culpable than the average
    participant in the criminal activity.” Id. § 3B1.2 cmt. n.3(A).
    But here too, the judge was required to make this comparison
    only implicitly, rather than explicitly. See United States v.
    Sandoval-Velazco, 
    736 F.3d 1104
    , 1108 (7th Cir. 2013). The
    judge made that implicit comparison, explaining, for instance,
    that Freyermuth performed more functions than the dealers
    and interacted with every other member of the conspiracy—
    especially with his brother, the leader.
    Freyermuth next argues that the judge misinterpreted ap-
    plication note 3(A), which addresses adjustments available to
    a hypothetical defendant whose role in the offense make him
    less culpable than the average participant. The note provides:
    [A] defendant who is convicted of a drug traf-
    ficking offense, whose participation in that of-
    fense was limited to transporting or storing
    6                                                    No. 22-2814
    drugs … may receive an adjustment under this
    guideline.
    U.S.S.G. § 3B1.2 cmt. n.3(A) (emphasis added). Freyermuth
    maintains that the judge misinterpreted this language to dis-
    qualify him from a minor-role downward adjustment because
    he primarily transported and stored drugs.
    We disagree. Section 3B1.2’s application turns on culpabil-
    ity, and not all acts of storage and transport affect a defend-
    ant’s culpability equally. See United States v. Sanchez, 
    989 F.3d 523
    , 544 (7th Cir. 2021). Here, the sentencing transcript reflects
    that the judge did not regard Freyermuth to be substantially
    less culpable than the average participant in the conspiracy.
    The judge emphasized that his role in storing the drugs was
    “relatively independent[]”: “It wasn’t just like he maintained
    a stash house that other people came and used. He actually
    stored it and maintained the inventory.” Similarly, Frey-
    ermuth’s transportation role “wasn’t just like he was the cou-
    rier who got it from Arizona to Wisconsin”; rather he “trans-
    ported it in the sense of actually delivering it to the dealers.”
    On top of that, the judge recognized that Freyermuth added
    to his culpability by collecting and laundering the proceeds.
    Because the facts here support the judge’s conclusion that
    a minor-role reduction was not warranted, we AFFIRM.