United States v. Kurt Steffen , 741 F.3d 411 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4484
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KURT STEFFEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:10-cr-01198-CWH-7)
Argued: October 30, 2013 Decided: December 20, 2013
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Agee joined.
ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert
Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee. ON BRIEF: Mary Gordon
Baker, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the application of a role
enhancement to a sentence imposed on South Carolina Highway
Patrolman Kurt Steffen, who participated in a conspiracy
involving the large-scale cultivation of marijuana. Steffen
argues that the district court erred in enhancing his sentence
after finding that Steffen was a manager or supervisor of the
drug conspiracy. Upon our review, we conclude that the district
court did not clearly err in imposing the sentencing enhancement
based on Steffen’s aggravated role in the offense. Accordingly,
we affirm Steffen’s sentence.
I.
In November 2009, police investigated reports of unusually
high power usage on land owned by Steffen in Dorchester County,
South Carolina (the Dorchester County property). After
obtaining a warrant and searching Steffen’s property, police
officers seized 315 marijuana plants found in two sheds and a
vehicle parked on the property. The police also found
“thousands of dollars worth of grow equipment” located on the
property. Additional investigation revealed that Steffen’s
property was one of at least five locations in South Carolina
involved in a large-scale marijuana cultivation conspiracy.
2
Steffen and six other individuals were charged with
conspiring to possess with intent to distribute 1,000 or more
marijuana plants, and Steffen, along with two of his co-
defendants, was also charged with manufacturing and possessing
with intent to distribute 100 or more marijuana plants, all in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A-B). On the
morning of trial, Steffen pleaded guilty under a written plea
agreement to the manufacturing and possessing charge, which
carried a five-year mandatory minimum term of imprisonment. See
21 U.S.C. § 841(b)(1)(B).
The pre-sentence report (PSR) characterized Steffen as one
of multiple “mid-level operators” in the drug conspiracy.
According to certain co-conspirators, before Steffen became a
state highway patrolman, he articulated a desire to sell
marijuana. Steffen later purchased the Dorchester County
property and allowed co-conspirators to grow marijuana on the
property in exchange for a share of the profits. Steffen became
a state trooper during the time period that he was “setting up
the grow” operation.
In addition to purchasing the land on which the marijuana
was grown, Steffen paid for cultivation equipment and a shed
furnished with electricity, although he later transferred the
payor’s name on his property’s utility bill to that of a co-
defendant, Armando Verdugo (Verdugo), “in an attempt to avoid
3
detection.” Steffen also traveled in his police uniform to the
Dorchester County property and transported marijuana to other
locations in his patrol vehicle. On two occasions, Steffen used
his patrol vehicle to follow Verdugo when Verdugo was
transporting marijuana, in order “to prevent any other law
enforcement agency from stopping” Verdugo’s vehicle.
The PSR calculated a total offense level of 25, which
included a three-level upward adjustment for being “a manager or
supervisor” of criminal activity involving five or more
participants, a two-level upward adjustment for abuse of a
position of trust, and a two-level downward adjustment for
acceptance of responsibility. Because the relevant statute
applied a five-year mandatory minimum term of imprisonment to
Steffen’s conviction, Steffen’s initial advisory guidelines
range of 57 to 71 months’ imprisonment was increased to 60 to 71
months’ imprisonment.
At sentencing, Steffen argued that he did not qualify for
the role enhancement because he did not manage or supervise
other participants in the conspiracy. Ultimately, the district
court disagreed, primarily relying on Steffen’s “ability through
the ownership of the land . . . to pull the plug on the entire
operation,” and adopted the PSR’s imposition of the three-level
upward adjustment.
4
The district court’s finding that Steffen was a manager or
supervisor in the conspiracy rendered Steffen ineligible for a
sentence below the mandatory minimum pursuant to the “safety
valve” provision of the guidelines. See U.S.S.G. § 5C1.2
(2011). Accordingly, the district court sentenced Steffen to
serve the minimum required term of 60 months’ imprisonment. 1
Steffen timely appealed.
II.
The sentencing guidelines allow for a three-level upward
adjustment to a defendant’s offense level “[i]f the defendant
was a manager or supervisor (but not an organizer or leader) and
the criminal activity involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(b). The adjustment is
warranted when a defendant was a manager or supervisor “of one
or more other participants.” Id. cmt. n.2. Therefore, “an
adjustment under § 3B1.1 is proper ‘only if it was demonstrated
that the defendant was an organizer, leader, manager or
supervisor of people.’” United States v. Cameron, 573 F.3d 179,
185 (4th Cir. 2009) (quoting United States v. Sayles, 296 F.3d
219, 226 (4th Cir. 2002)) (emphasis in original) (alterations
1
The court did not make factual findings regarding whether,
alternatively, Steffen was ineligible for the safety valve
because he made threats of violence or possessed a dangerous
weapon in connection with the offense.
5
omitted). 2 The burden is on the government to prove by a
preponderance of the evidence that the sentencing enhancement
should be applied. United States v. Grubbs, 585 F.3d 793, 803
(4th Cir. 2009); United States v. Garnett, 243 F.3d 824, 828
(4th Cir. 2001).
A.
Before addressing the merits of Steffen’s argument that the
district court erred in finding that he acted in the role of a
manager or supervisor, we first must identify the appropriate
standard of review. We accord due deference to a district
court’s application of the sentencing guidelines. United States
v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). “If the issue
turns primarily on a factual determination, an appellate court
should apply the ‘clearly erroneous’ standard.” United States
v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). In contrast,
“[i]f the issue . . . turns primarily on the legal
2
In distinguishing a “leadership and organizational role”
from “one of mere management and supervision,” courts should
take into account the defendant’s relevant conduct and consider:
[1] the exercise of decision making authority, [2] the
nature of participation in the commission of the
offense, [3] the recruitment of accomplices, [4] the
claimed right to a larger share of the fruits of the
crime, [5] the degree of participation in planning or
organizing the offense, [6] the nature and scope of
the illegal activity, and [7] the degree of control
and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4.
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interpretation of a guideline term, . . . the standard moves
closer to de novo review.” Id. (emphasis removed).
We consistently have held that a district court’s
determination that a defendant held a leadership role in
criminal activity is “essentially factual” and, therefore, is
reviewed on appeal for clear error. United States v. Sheffer,
896 F.2d 842, 846 (4th Cir. 1990); see United States v. Kellam,
568 F.3d 125, 147 (4th Cir. 2009); United States v. Sayles, 296
F.3d 219, 224 (4th Cir. 2002); Daughtrey, 874 F.2d at 218. In
deciding whether the defendant acted as a manager or supervisor,
the district court must draw an inference from “a variety of
data, including the information in the pre-sentence report and
the defendant’s statements and demeanor at the sentencing
hearing,” regarding the degree to which the defendant was
responsible for committing an offense relative to other
participants. United States v. Mejia-Orosco, 867 F.2d 216, 220-
21 (5th Cir. 1989); see U.S.S.G. § 3B1.1 cmt. background.
“[T]he fact of manager status may be more difficult to
ascertain than purely physical facts—such as whether the
defendant carried a gun during commission of the crime—and may
depend upon an assessment of the broad context of the crime.”
Mejia-Orosco, 867 F.2d at 221. However, as other circuits
uniformly have concluded, “a complex fact is no less a fact,”
and a criminal defendant’s eligibility for a role enhancement
7
under § 3B1.1 is no different from other factual questions that
require “assessment of complex evidence as well as sensitivity
to legal purposes.” Id.; see also United States v. Herrera, 878
F.2d 997, 1000 (7th Cir. 1989) (concluding that whether the
defendant played an aggravating role in an offense was a factual
question subject to clear error review); United States v. Ortiz,
878 F.2d 125, 126–27 (3d Cir. 1989) (same); United States v.
Wright, 873 F.2d 437, 443 (1st Cir. 1989) (same).
Because application of the manager or supervisor
enhancement involves a factual determination, we apply the clear
error standard in reviewing whether a preponderance of the
evidence supported imposition of the enhancement in Steffen’s
case. See, e.g., United States v. Cabrera-Beltran, 660 F.3d
742, 756 (4th Cir. 2011) (analyzing district court’s application
of a manager or supervisor role enhancement in terms of whether
“the district court committed clear error in finding, based on a
preponderance of the evidence, . . . that the defendant was a
manager or supervisor in the conspiracy”). We will conclude
that the ruling of the district court is clearly erroneous only
when, after reviewing all the evidence, we are “left with the
definite and firm conviction that a mistake has been committed.”
United States v. May, 359 F.3d 683, 688 (4th Cir. 2004) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In
conducting this review for clear error, we are not confined to
8
the district court’s analysis but may affirm the court’s ruling
on any evidence appearing in the record. United States v.
McHan, 386 F.3d 620, 623 (4th Cir. 2004).
B.
Steffen asserts that the district court erred in
determining that he acted in an aggravating role as a manager or
supervisor of the drug conspiracy. He contends that undisputed
facts in the PSR indicate only that he exercised some management
responsibility over property involved in the drug conspiracy,
rather than management or supervision of any of his co-
conspirators. Under our precedent, in order to qualify for the
role enhancement, the government must present evidence that the
defendant managed or supervised “participants, as opposed to
property, in the criminal enterprise.” United States v. Slade,
631 F.3d 185, 190 n.1 (4th Cir. 2011); see Cameron, 573 F.3d at
186 (observing that the Sentencing Commission clarified that the
enhancement applies only to defendants who organize, lead,
manage, or supervise “‘one or more other participants’ and not
to those who just ‘exercise[] management responsibility over the
property, assets, or activities of a criminal organization’”)
(quoting U.S.S.G. § 3B1.1 cmt. n.2).
Steffen analogizes his case to Slade, in which we reversed
a district court’s application of the enhancement to a “mid- to
upper-level” operator in a drug conspiracy due to the “absence
9
of any evidence” that the defendant managed or supervised at
least one other participant in the offense. 631 F.3d at 190-91(emphasis added). In that case, the defendant supplied drugs to
co-conspirators and other clients, certain co-conspirators sold
drugs “for” the defendant, and one co-conspirator drove the
defendant to various locations to deliver drugs. Id. at 190.
Ultimately, we concluded that none of those activities provided
any evidence that the defendant “actively exercised some
authority over other participants in the operation or actively
managed its activities.” Id.By contrast, the record before us contains evidence that
Steffen exercised management or supervisory authority over one
other person. We first observe that Steffen used his police
vehicle on two occasions to follow co-conspirator Verdugo, who
was transporting marijuana in a separate vehicle. Standing
alone, as the district court acknowledged, this conduct is as
unrevealing about the defendant’s role in the offense as the
facts presented in Slade. But it is also undisputed that
Steffen’s purpose in performing those actions was to use his
position as a state highway patrolman “to prevent any other law
enforcement agency from stopping” Verdugo’s vehicle. Thus,
Steffen’s judgment that the co-conspirator’s acts should be
shielded by Steffen’s use of his patrol car reflected a
management decision regarding the manner in which another
10
participant in the conspiracy was to conduct the conspiracy’s
business.
This conclusion of actual management or supervision is
supported further by Steffen’s act of transferring the electric
bill for the Dorchester County property from his own name to
that of the same co-conspirator “to avoid detection.” This act,
which concealed Steffen’s role in the operation, also reflected
an exercise of authority over Verdugo and a management decision
regarding which co-conspirator should be assigned a particular
risk of exposure for the crime.
Such evidence supplies what was missing in Slade, namely,
proof that the defendant made decisions that reflected his
management or supervision of the criminal activities of at least
one other person. United States v. Bartley, 230 F.3d 667, 673
(4th Cir. 2000). The significance of the evidence before us is
not mitigated by the fact that, in other cases affirming the
imposition of this particular sentencing enhancement, we relied
on substantially greater evidence of the defendant’s managerial
or supervisory role. See, e.g., United States v. Llamas, 599
F.3d 381, 390 (4th Cir. 2010) (upholding U.S.S.G. § 3B1.1
enhancement based on evidence that the defendant supervised a
fraud scheme at a call center by enforcing rules, punishing non-
compliant employees, and “deciding monetary shares of the fraud
scheme’s proceeds”); Kellam, 568 F.3d at 148 (justifying
11
enhancement based on the defendant’s “substantial role” in
“controlling the drug buys of other conspirators” and directing
the terms of payment); Bartley, 230 F.3d at 673-74 (affirming
enhancement given evidence that the defendant directed the
activities of drug dealers, set prices and terms of payment,
arranged logistics, and instructed others on how to manage drug
distribution proceeds). Under our deferential standard of
review, the evidence in the present record is sufficient to
support the district court’s conclusion that the defendant was a
manager or supervisor of at least one other person.
Accordingly, we conclude that the district court’s determination
was not clearly erroneous. 3
III.
For these reasons, we affirm the district court’s judgment
imposing sentence in this case.
AFFIRMED
3
Because we affirm the district court’s application of the
role enhancement, we need not address Steffen’s argument that
the case must be remanded for the district court to render
factual findings on whether Steffen otherwise satisfied the
requirements for application of the safety valve provision of
the sentencing guidelines.
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