United States v. Michael Redmond, Jr. ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2907
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael David Redmond, Jr.
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
____________
Submitted: June 11, 2018
Filed: August 7, 2018
[Unpublished]
____________
Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Michael Redmond, Jr., pleaded guilty to one count of conspiracy to distribute
a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Before
sentencing, the United States Probation Office prepared a presentence investigation
report (“PSR”), which recommended a total offense level of 32, a criminal history
category of I, and an advisory guidelines range of 121 to 151 months. The PSR’s
offense-level calculation included a three-level role enhancement under United States
Sentencing Guidelines (“U.S.S.G.”) § 3B1.1(b) for being a manager or supervisor in
the criminal activity. Redmond objected to the application of the enhancement,
arguing that he did not qualify as a manager or supervisor under the guidelines. The
district court1 overruled the objection and sentenced Redmond to the mandatory
minimum sentence of 120 months’ imprisonment, see 21 U.S.C. § 841(b)(1)(A), a
one-month downward variance from the advisory guidelines range. Redmond timely
appealed, again challenging the sentencing enhancement. In addition, he argues that
because he was not a manager or supervisor in the conspiracy, he qualifies for the
safety valve under 18 U.S.C. § 3553(f), which allows a sentencing court to impose
a sentence less than the mandatory minimum sentence.
The Government bears the burden of proving by a preponderance of the
evidence that the role enhancement is warranted. United States v. Gaines, 639 F.3d
423, 427 (8th Cir. 2011). Whether a defendant functioned as a manager or supervisor
is a question of fact reviewed for clear error. Id. at 427-28. “We construe the terms
‘manager’ or ‘supervisor’ broadly under U.S.S.G. § 3B1.1.” United States v.
Adamson, 608 F.3d 1049, 1056 (8th Cir. 2010). A defendant may be subject to the
enhancement even if he managed or supervised only one participant in a single
transaction. United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir. 2014). “[T]he
simple fact that a defendant recruits new members into a conspiracy supports a
finding of the defendant being a manager or supervisor.” United States v. Erhart, 415
F.3d 965, 973 (8th Cir. 2005). Additionally, while fronting or distributing drugs does
not by itself support a manager or supervisor role enhancement, taken together with
additional evidence showing control over another participant, it may support such a
finding. United States v. Del Toro-Aguilera, 138 F.3d 340, 343 (8th Cir. 1998).
1
The Honorable James E. Gritzner, United State District Judge for the Southern
District of Iowa.
-2-
At sentencing, the Government pointed to uncontested facts in the PSR and
Redmond’s plea agreement as evidence supporting the role enhancement. Redmond
began selling fentanyl for his supplier between Thanksgiving and Christmas 2015.
He was observed selling the drugs to numerous people from his residence. A few
weeks later, as stipulated in Redmond’s plea agreement, he “recruited” his brother
into the conspiracy to distribute fentanyl and increase the number of customers
Redmond could supply. Redmond’s brother began selling drugs, initially using
Redmond as his supplier and giving Redmond all of his profits.
Redmond argued that although he fronted his brother drugs, the two are very
close and their relationship in this conspiracy was that of “co-venturers within a joint
venture.” The district court rejected Redmond’s argument and found that the
Government had proven by a preponderance of the evidence that the manager or
supervisor role enhancement was properly applied. On the basis of this record, the
district court did not clearly err in applying the manager or supervisor role
enhancement. See Gaines, 639 F.3d at 427; Erhart, 415 F.3d at 973; Irlmeier, 750
F.3d at 764.
Accordingly, Redmond’s safety-valve argument is foreclosed. See 18 U.S.C.
§ 3553(f)(4) (asserting that a defendant only qualifies for application of the safety
valve if, among other things, he was not an organizer, leader, manager, or supervisor
of others in the offense).
Therefore, we affirm Redmond’s sentence.
______________________________
-3-