United States v. Vandeberg

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0022P (6th Cir.)
File Name: 00a0022p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


No. 98-3009
v.

>
JESSE JAMES VANDEBERG, 
Defendant-Appellant. 
1

Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 97-00046—S. Arthur Spiegel, District Judge.
Argued: September 22, 1999
Decided and Filed: January 14, 2000
Before: MERRITT and CLAY, Circuit Judges;
ALDRICH,* District Judge.

*
The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.

1
2 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 15

_________________ restitution order 60 days after the discovery of any additional
losses. See 18 U.S.C. § 3664(d)(5). The MVRA permits
COUNSEL amendments to restitution orders to reflect changed
circumstances, and neither confers nor terminates a court’s
ARGUED: C. Ransom Hudson, OFFICE OF THE jurisdiction.
FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT
OF OHIO, Cincinnati, Ohio, for Appellant. Anne L. Porter, The only remaining issue is whether the District Court
OFFICE OF THE U.S. ATTORNEY, Cincinnati, Ohio, for abused its discretion in setting the amount of restitution at
Appellee. ON BRIEF: C. Ransom Hudson, OFFICE OF $100,000. We conclude that it did not. The government,
THE FEDERAL PUBLIC DEFENDER, SOUTHERN which had the burden to prove the amount of the victim’s loss
DISTRICT OF OHIO, Cincinnati, Ohio, for Appellant. Anne by a preponderance of the evidence, see 18 U.S.C. § 3664(e),
L. Porter, OFFICE OF THE U.S. ATTORNEY, Cincinnati, produced evidence from the victim’s insurance company
Ohio, for Appellee. demonstrating that the victim suffered over $165,000 in
damages. At the restitution hearing, the probation officer
_________________ testified to the propriety of that amount in light of the
numerous stolen items that had not even been recovered. In
OPINION turn, Vandeberg testified that the information his employer
_________________ had given to the insurance company was not entirely accurate.
It appears that the District Court took all of this evidence into
ALDRICH, District Judge. Defendant-Appellant Jesse account when exercising its discretion to establish the
James Vandeberg pled guilty to conspiracy to transport stolen restitution amount. We cannot say that imposing $100,000 in
property interstate, a violation of 18 U.S.C. § 371, and to restitution constituted an abuse of discretion.
interstate transportation of stolen property, a violation of 18
U.S.C. § 2314. Vandeberg appeals his sentence, arguing that IV.
the District Court erred by (1) applying a two-level
enhancement to his base offense level pursuant to United We conclude that although the District Court failed to give
States Sentencing Guideline § 3B1.1(c), and (2) failing to Vandeberg an opportunity to object to a restitution order
conduct a restitution hearing within 90 days of his sentencing within 90 days after his sentencing hearing pursuant to 18
date. For the reasons that follow, we conclude that the U.S.C. § 3664(d)(5), the error was harmless. We further
District Court’s faulty restitution procedures amounted to conclude that the District Court’s error in applying a two-
harmless error, but that the decision to enhance Vandeberg’s level enhancement to Vandeberg’s sentence pursuant to
offense level was both erroneous and potentially harmful to U.S.S.G. § 3B1.1(c) may not have been harmless;
his sentence. Accordingly, we REVERSE the District Court’s accordingly, we remand the case for further consideration of
decision to apply the § 3B1.1(c) enhancement and REMAND the length of the sentence of imprisonment.
for resentencing.
I.
In early March of 1997, Joseph Tillema, one of
Vandeberg’s acquaintances, drove a pickup truck from Fort
Myers, Florida to Cincinnati, Ohio in order to burglarize the
14 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 3

hearing. The court should have clarified on the day of the house of Vandeberg’s employer. Vandeberg had informed
hearing that it was deferring a final determination on the Tillema that his employer, a licensed gun dealer, would be
restitution issue for a particular period of time. Rather than staying at a second residence in Fort Myers, Florida during
deferring the issue as § 3664(d)(5) requires, the District Court that time period. Based on his experience working as a
ordered restitution in the amount of $13,162.89. The court handyman for the gun dealer, Vandeberg was able to provide
evidently intended to keep the matter of restitution open for information to Tillema regarding the location of the
an additional 90 days, because approximately one week prior Cincinnati home, the home’s alarm system, and the location
to the end of the 90-day statutory period, the District Court of a safe containing valuable guns and jewelry.
increased the amount of restitution to $165,428.41 based on
additional information that the probation officer had After burglarizing the house, Tillema drove back to Florida
submitted. See Grimes, 173 F.3d at 640 (district court erred and unloaded the majority of the stolen items into his
by finalizing restitution order on sentencing date when some apartment. He continued to drive around Fort Myers with the
losses had not yet been ascertained). However, the District safe, which weighed approximately 1,000 pounds, in his
Court erred by unilaterally amending and finalizing the truck. Vandeberg told Tillema that it was foolish to store the
restitution order without affording the parties an opportunity safe in his truck. Vandeberg rented a storage unit for the safe,
to object within the 90-day period. Restitution is a part of and the two men placed the safe in the storage unit. By
one’s sentence under the statutory scheme, and cannot be drilling a pattern of small holes in the wall of the safe, they
imposed without giving the defendant an opportunity to be were able to peel away a section of the safe’s exterior and
heard.6 See Fed. R. Crim. P. 32(c)(3). remove the safe’s contents.
Nonetheless, we conclude that the error was harmless. On March 30, 1997, Vandeberg and Tillema sold
Although the District Court did not provide Vandeberg an approximately forty of the stolen guns, as well as two
opportunity to be heard within 90 days of the sentencing diamond rings, at a gun show in Orlando, Florida. An
hearing, the court provided him ample opportunity to object individual who had purchased a number of the guns later
to the amount thereafter. The court scheduled a number of contacted the burglary victim in response to reward posters
conferences on the subject, and, ultimately, conducted an that the victim had circulated. The individual informed the
evidentiary hearing in which Vandeberg himself testified. victim that he had purchased the guns from two men at the
Vandeberg’s argument that the court lacked jurisdiction to Orlando gun show. Federal agents contacted the organizers
take these actions after the 90-day period misses the mark. of the gun show and learned that Tillema had rented the booth
Section 3664(d)(5) is not a jurisdictional statute. Were we to in question. Vandeberg’s signature also appeared on the
read it as terminating a court’s jurisdiction 90 days after a documents pertaining to the booth rental. Both men were
sentencing hearing, we would be effectively nullifying its arrested. After Tillema’s arrest, law enforcement officers
provision that a victim may petition the court for an amended seized approximately 90 guns and other items belonging to
the victim from Tillema’s apartment. However, a significant
amount of the jewelry, cash, and weaponry was never
6 recovered.
As discussed previously, this does not mean that a sentencing court
is obligated to conduct an evidentiary hearing on the issue. While the On May 21, 1997, a grand jury returned a seven-count
merits of a hearing are readily apparent, the court may, for example,
permit the parties to brief the amount of losses. See 18 U.S.C. § 3664 indictment against both Vandeberg and Tillema. On July 31,
(conferring power on sentencing court to select method for assessing 1997, pursuant to a written plea agreement, Vandeberg pled
restitution amount).
4 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 13

guilty to the first two counts in the indictment: (1) conspiracy not specifically mention the need for a hearing or any other
to transport stolen property interstate in violation of 18 U.S.C. kind of proceeding. Second, § 3664(d)(5) must be read in
§ 371, and (2) interstate transportation of stolen property in connection with the remaining provisions of the statute.
violation of 18 U.S.C. § 2314. Thereafter, a probation officer Section 3664 affords a district court a number of procedural
prepared a Presentence Investigation Report (PSI), options in determining the proper amount of restitution,5 and
recommending that, pursuant to U.S.S.G. § 3B1.1(c), explicitly provides that a court “may require additional
Vandeberg’s offense level be increased by two points based documentation or hear testimony.” 18 U.S.C. § 3664(d)(4)
on Vandeberg’s role as an “organizer, leader, manager, or (emphasis added); see also Minneman, 143 F.3d at 284-85
supervisor” of the criminal activity. The PSI further indicated (summarizing procedural options under § 3664(d)(5)). While
that the burglary victim’s home sustained $13,162.89 in it is no doubt true that in many cases, a sentencing court will
structural damages, but that the total amount of the victim’s want to conduct a hearing to obtain relevant evidence and
losses had yet to be ascertained because numerous items were afford the parties an opportunity to present oral argument,
still missing. The probation officer stated that an amended § 3664(d)(5) does not mandate that such an evidentiary
restitution figure would be submitted to the court within 30 hearing must be conducted.
days. Vandeberg objected to the two-level § 3B1.1(c)
enhancement; he also objected to the imposition of an amount Section 3664(d)(5) does, however, require the sentencing
of restitution that was not supported by adequate court to resolve the restitution question--including any
documentation. In response, the probation officer provided objections a defendant may have--within 90 days of the
documentation to demonstrate that the victim’s house sentencing hearing. Although § 3664(d)(5) does not mention
sustained $13,162.89 in damages. The probation officer also the defendant’s right to object to the restitution portion of his
submitted an addendum to the PSI, stating that the victim had sentence, § 3664(c) explicitly states that the provisions of
been unable, as of that time, to gather additional Rule 32(c) of the Federal Rules of Criminal Procedure apply
documentation regarding the amount of his losses. to the MVRA. See 18 U.S.C. § 3664(c). Rule 32(c), in turn,
states that a court must afford parties an opportunity to be
At a sentencing hearing on December 12, 1997, heard on any disputed sentencing issue. See Fed. R. Crim. P.
Vandeberg’s counsel reiterated the defendant’s objection to 32(c)(1) and (3). This Circuit has consistently construed the
the § 3B1.1(c) enhancement. The government agreed with requirements of Rule 32 in a strict manner, largely because
Vandeberg on this issue, indicating that “this is not a classic the rule protects a defendant’s right to due process. See, e.g.,
case . . . where he would be in a managerial position. At best, United States v. Hayes, 171 F.3d 389, 392-93 (6th Cir. 1999)
they were coconspirators.” Despite the government’s (district court’s reliance on victim impact letters not disclosed
acquiescence in Vandeberg’s position, the District Court to defendant constituted plain error).
summarily concluded “based on the preponderance of the
evidence that the two-level enhancement is appropriate . . . The court below erred by failing to resolve the restitution
the defense’s objection will be denied.” The District Court amount, and by failing to give Vandeberg an opportunity to
then sentenced Vandeberg to 140 months incarceration (20 object to that amount, within 90 days after the sentencing
months for conspiracy and 120 months for the substantive
offense) and ordered him to pay restitution in the amount of
$13,162.89. 5
Section 3664(d)(6), for example, permits a district court to refer a
restitution dispute “to a magistrate judge or special master for proposed
findings of fact and recommendations as to disposition, subject to a de
novo determination of the issue by the court.” 18 U.S.C. § 3664(d)(6).
12 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 5

If the victim’s losses are not ascertainable by the date Vandeberg filed a timely notice of appeal on December 22,
that is 10 days prior to sentencing, the attorney for the 1997. On or about March 4, 1998--approximately 82 days
Government or the probation officer shall so inform the after sentencing--the District Court issued an order modifying
court, and the court shall set a date for the final the restitution portion of Vandeberg’s sentence. Indicating
determination of the victim’s losses, not to exceed 90 that the amount of the victim’s losses had been ascertained,
days after sentencing. If the victim subsequently the court ordered Vandeberg to “immediately” pay restitution
discovers further losses, the victim shall have 60 days in the amount of $165,428.41.
after discovery of those losses in which to petition the
court for an amended restitution order. On May 4, 1998, Vandeberg filed a motion with the District
Court,1 requesting that a hearing be held on the restitution
18 U.S.C. § 3664(d)(5). Vandeberg argues that this section issue. The court granted the motion and, at a hearing in
unequivocally requires the district court to conduct a hearing which the probation officer was unable to be present, the
on any undetermined restitution amount within 90 days of the court instructed the parties to informally meet with the
sentencing date. According to Vandeberg, once this 90-day probation officer in an effort to resolve the matter. A final
period elapses, the sentencing court lacks jurisdiction to restitution hearing was conducted on September 10, 1998.
modify a restitution order. Vandeberg testified on his own behalf, disputing the accuracy
of the insurance adjuster’s report. Vandeberg stated that after
This case presents the first opportunity for this Circuit to the burglary, he had assisted his employer in completing the
address the meaning of § 3664(d)(5). The Seventh Circuit insurance forms; based on this assistance and his personal
appears to be the only court that has interpreted this statute to knowledge of the gun business, Vandeberg testified that the
date. In United States v. Grimes, 173 F.3d 634 (7th Cir. victim had exaggerated his losses to the insurance company.
1999), the Seventh Circuit held that when victims’ losses After considering this evidence as well as the testimony of the
have not been ascertained by the time of sentencing, probation officer, the District Court decided to reduce the
§ 3664(d)(5) obligates a district court to “defer” entry of a amount of restitution from $165,428.41 to $100,000.
restitution order for 90 days “to give the victims the benefit of
the 90-day period.” Id. at 640. The Seventh Circuit is correct II.
insofar as under the plain language of the statute, a district
court “shall” establish a time by which to finalize the Vandeberg claims that the District Court failed to make any
restitution issue that is not to exceed 90 days after the factual findings to support the enhancement pursuant to
sentencing hearing. See 18 U.S.C. § 3664(d)(5). Thus, when U.S.S.G. § 3B1.1(c), and, furthermore, that the enhancement
a victim’s losses have not been ascertained by the time of the was inapplicable.
sentencing hearing, the court must inform the parties that it
will postpone the entry of restitution until a specific date Whether a district court is required to make factual findings
within the 90-day period. Id. Moreover, the court is on the record is a question of law subject to de novo review.
statutorily obligated to resolve the restitution issue within 90 See United States v. Burnette, 981 F.2d 874, 877 (6th Cir.
days of the sentencing hearing. Id. 1992). In this case, the District Court agreed with the

Vandeberg argues that § 3664(d)(5) also requires a district
court to conduct a restitution hearing within the 90-day 1
Vandeberg also asked this Court to stay his appeal pending
period. This argument lacks merit. First, § 3664(d)(5) does resolution of the restitution issue in District Court. This Court granted
that motion.
6 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 11

probation officer and found that Vandeberg deserved a two- 18 U.S.C. §§ 3663A-3664. Under the MVRA, which
level enhancement as an organizer, leader, manager, or amended the Victim and Witness Protection Act of 1982,
supervisor of criminal activity. See U.S.S.G. § 3B1.1(c) restitution is an important part of the sentencing process and,
(providing for two-level upward adjustment). The District in many cases, a necessary component of a defendant’s
Court did not, however, articulate the factual bases for this sentence. The MVRA requires a defendant to pay restitution
conclusion. to identifiable victims who have suffered either physical
injuries or pecuniary losses as a result of certain criminal
This Circuit has decided that the failure to specify the offenses. See 18 U.S.C. § 3663A(a)(1), § 3663A(c)(1).
factual basis for applying a § 3B1.1 enhancement “is not Specifically, restitution is mandatory--regardless of a
grounds for vacating the sentence.” United States v. defendant’s financial situation--when a defendant is convicted
Alexander, 59 F.3d 36, 39 (6th Cir. 1995). The Alexander of a crime of violence, an offense against property, or an
Court stated that “although not required under the Guidelines, offense related to tampering with consumer products.3 See 18
it is preferable that trial courts indicate the factual basis for U.S.C. § 3663A(c)(1)(A); § 3664(f)(1)(A). Neither
enhancing a defendant’s sentence pursuant to U.S.S.G. Vandeberg nor the government disputes that the MVRA
§ 3B1.1.” Id. A description of the factual basis for the required Vandeberg to pay some sort of restitution to his
enhancement is important because it provides the defendant employer.4
an understanding of the enhancement and provides a
meaningful basis for appellate review. Id. at 39-40. The dispute in this case regarding the legitimacy of the
restitution order centers around certain procedures a district
Vandeberg has not persuaded us that Alexander fails to court may use under the MVRA. Section 3664 delineates a
control this case. The cases Vandeberg cites in support of his panoply of procedures pertinent to the issuance and
position pertain to enhancements for obstruction of justice enforcement of restitution; the statute grants a district court
pursuant to U.S.S.G. § 3C1.1. In the obstruction-of-justice discretion to choose the procedures that will best aid the court
context, both the United States Supreme Court and this Court in assessing the amount of loss. Accord United States v.
have held that when a defendant objects to a § 3C1.1 Minneman, 143 F.3d 274, 284-85, reh’g en banc denied (7th
enhancement, the trial court must “make independent findings Cir. 1998), cert. denied, 119 S.Ct. 1145 (1999) (“Notably,
necessary to establish a willful impediment to or obstruction Congress left the choice of procedures to the discretion of the
of justice.” United States v. Dunnigan, 507 U.S. 87, 95 court.”). Section 3664(d)(5) states as follows:
(1993); see also Burnette, 981 F.2d at 878 (trial court erred in
applying § 3C1.1 enhancement absent specific finding that
defendant had lied). When a defendant faces a § 3C1.1
enhancement for perjury, for example, independent findings 3
By disregarding the defendant’s financial condition for restitution
are necessary to assess whether the defendant possessed the purposes, the MVRA permits full payment of restitution in the possible,
willful intent to lie, and to ensure that the defendant does not but unlikely, event that a defendant might win a lottery or otherwise strike
receive the enhancement merely because he or she chose to it rich after sentencing.
testify in a trial that resulted in his or her conviction. See 4
Dunnigan, 507 U.S. at 95-97. However, even under In passing, Vandeberg references a provision of the MVRA which
provides that the statute does not apply if the trial court finds that
Dunnigan and its progeny, a trial court is not required to “determining complex issues of fact related to the cause or amount of the
detail the factual bases for a § 3C1.1 enhancement; rather, it victim’s losses would complicate or prolong the sentencing process” to an
is sufficient for the court to make a finding that encompasses unduly burdensome degree. 18 U.S.C. § 3663A(c)(3)(B). Vandeberg did
not raise this argument below, so we do not consider it on appeal.
10 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 7

would be obliterated. See U.S.S.G. § 3B1.1, Commentary, the appropriate predicates for the enhancement. See id. at 95-
Background (enhancement primarily addresses relative 96.
responsibility).
Vandeberg seems to be conflating the obligation of the trial
Furthermore, we are unable to conclude that the District court to decide a disputed sentencing issue with the
Court’s error in applying the two-level enhancement was preference for placing the factual reasons underlying that
harmless. Based on an offense level of 28 and a criminal decision on the record. See Fed. R. Crim. P. 32(c)(1) (for
history category of VI, Vandeberg’s imprisonment range was each controverted sentencing issue, court must make finding
140-175 months. Had the District Court not applied the or determine that no finding is necessary); U.S.S.G.
§ 3B1.1(c) enhancement, Vandeberg’s offense level would § 6A1.3(b) (“court shall resolve disputed sentencing factors
have been 26, and the corresponding sentencing range would at a sentencing hearing in accordance with Rule 32(c)(1)”);
have been 120-150 months. Remand is appropriate unless the Alexander, 59 F.3d at 39 (not necessary, but preferable, that
appellate court is convinced that the trial court “would have court articulate reasons for finding on record). In this case,
imposed the same sentence absent [its] misinterpretation of the District Court did, in fact, reject Vandeberg’s argument
the guideline.” United States v. Parrott, 148 F.3d 629, 635 that an enhancement pursuant § 3B1.1(c) was inapplicable.
(6th Cir. 1998) (citing 18 U.S.C. § 3742(f)(1) and Williams v. The court simply did not articulate the factual basis for that
United States, 503 U.S. 193, 203 (1992)). Because we cannot decision. As previously discussed, the failure to articulate
conclude that the District Court would have imposed the same such a factual basis does not constitute reversible error.
length of imprisonment if properly confronted with a different Alexander, 59 F.3d at 39.
sentencing range, we vacate the enhancement and remand for
reconsideration. Id. While we reiterate the holding of Alexander in this regard,
we emphasize the importance the Alexander panel placed on
III. including the factual basis for a decision on the record. Id. at
39-40. It is especially “preferable,” id. at 39, for a district
Vandeberg also claims that pursuant to 18 U.S.C. court to articulate the precise reasons for applying a § 3B1.1
§ 3664(d)(5), the District Court lacked authority to hold a enhancement when, as in this case, the defendant pled guilty
hearing or modify the restitution portion of his sentence after and the court lacked the advantage of having observed a trial.
90 days had elapsed after the December 12, 1997 sentencing When a district court fails to articulate the factual basis for an
hearing. Vandeberg further argues that any modification to enhancement, it either compels this Court to review the record
restitution occurring within 90 days of the sentencing date de novo, or runs the risk that this Court will have to remand
must be accompanied by notice to the defendant and an the case for insufficient findings and reasoning. See United
opportunity to be heard. Finally, he challenges the amount of States v. Gort-DiDonato, 109 F.3d 318, 323 (6th Cir. 1997)
restitution the District Court imposed. Our review of (remand necessary when trial court failed to make appropriate
restitution orders is “bifurcated.” United States v. Guardino, findings regarding applicability of § 3B1.1 enhancement);
972 F.2d 682, 686 (6th Cir. 1992). That is, we review the United States v. Leek, 1996 WL 99811, 78 F.3d 585, at *8
propriety of ordering restitution in the first instance de novo, (6th Cir. 1996) (unpublished) (remand for further findings
and we review the amount that was ordered under the abuse ordinarily appropriate, but unnecessary when record failed to
of discretion standard. Id. support § 3B1.1 enhancement); Alexander, 59 F.3d at 39
(failure to articulate factual basis for § 3B1.1 enhancement
The District Court sentenced Vandeberg in accordance with “essentially compels” de novo review).
the Mandatory Victims Restitution Act of 1996 (“MVRA”),
8 United States v. Vandeberg No. 98-3009 No. 98-3009 United States v. Vandeberg 9

Based on a thorough review of the record, we conclude that degree of control the defendant exercised over others.
remand for further findings is unnecessary because the record U.S.S.G. § 3B1.1, Commentary, Application Note 4. The
clearly fails to support the imposition of a two-level government bears the burden of proving that the enhancement
enhancement pursuant to § 3B1.1(c).2 This section provides applies by a preponderance of the evidence. United States v.
for a two-level adjustment if the defendant was “an organizer, Martinez, 181 F.3d 794, 797 (6th Cir. 1999).
leader, manager, or supervisor” in any criminal activity that
involved fewer than five people or that was otherwise not The government failed to meet this burden in this case.
extensive. U.S.S.G. § 3B1.1(c). Application Note 2 provides Indeed, at the sentencing hearing, the Assistant United States
as follows: Attorney agreed with Vandeberg that a § 3B1.1(c)
enhancement did not apply. Although Vandeberg provided
To qualify for an adjustment under this section, the Tillema, his co-conspirator, information crucial to helping
defendant must have been the organizer, leader, manager, Tillema burglarize the house, there is no indication that
or supervisor of one or more other participants. An Vandeberg either recruited Tillema or exercised any authority
upward departure may be warranted, however, in the case over him. See id. at 798-99 (§ 3B1.1(c) enhancement
of a defendant who did not organize, lead, manage, or applicable when defendant recruited accomplices, supervised
supervise another participant, but who nevertheless criminal activity, and exercised decision-making authority).
exercised management responsibility over the property, Vandeberg neither claimed a right to a larger share of the
assets, or activities of a criminal organization. fruits of the crime, nor took a leadership role in planning the
details of the offense. Rather, it appears that Tillema initiated
U.S.S.G. § 3B1.1, Commentary, Application Note 2. In the criminal activity, exercised his own decision-making
general, “a defendant must have exerted control over at least authority, and retained possession over many of the stolen
one individual within a criminal organization for the items. In sum, there is insufficient evidence to show that, as
enhancement of § 3B1.1 to be warranted.” Gort-DiDonato, Application Note 2 requires, Vandeberg either (1) organized,
109 F.3d at 321 (footnote omitted). In determining whether led, managed, or supervised Tillema, or (2) exercised any
a defendant qualifies as a leader, organizer, manager, or more “management responsibility over the property, assets, or
supervisor, a trial court should consider a number of factors, activities” of the crime than did Tillema.
including but not limited to the defendant’s exercise of
decision-making authority, any recruitment of accomplices, The government’s reliance on the probation officer’s
“the claimed right to a larger share of the fruits of the crime,” reasoning--i.e., that Vandeberg provided crucial information
the degree of participation in planning the offense, and the to Tillema and played an important role in the offense--is
misplaced. Merely playing an essential role in the offense is
not equivalent to exercising managerial control over other
2
If the District Court had explained the factual reasons for applying participants and/or the assets of a criminal enterprise. See
the § 3B1.1(c) enhancement, then we would have reviewed those factual United States v. Albers, 93 F.3d 1469, 1487 (10th Cir. 1996)
findings for clear error, and reviewed de novo the District Court’s legal (playing “important or essential role” in crime is insufficient
conclusions regarding the application of the Sentencing Guidelines. See, to show that defendant deserves § 3B1.1 enhancement).
e.g., United States v. Clay, 117 F.3d 317, 320 (6th Cir.), cert. denied, 118 Indeed, if key participation were sufficient to justify an
S.Ct. 395 (1997). Because the District Court failed to articulate the
factual basis for the enhancement, we are compelled to conduct a de novo enhancement pursuant to § 3B1.1, then both Vandeberg and
review of the record and determine whether the enhancement is Tillema would receive the enhancement, and the Guidelines’
applicable, or whether remand for further findings is required. Accord primary concern with addressing “relative responsibility”
Alexander, 59 F.3d at 39.