concurring in part and dissenting in part: I concur with that portion of the majority opinion which holds that Martin’s “ringleader” status was not an element of the conspiracy offense. I respectfully dissent from the balance of the opinion which holds that Martin’s “ringleader” status does not support an upward dispositional departure.
I believe the majority’s characterization of Martin as the “ringleader” trivializes his role in the criminal enterprise he organized and controlled, and that the usage of the term leads the majority to reach an incorrect result.
Neither the jury’s special verdict nor the district court’s stated basis for granting an upward dispositional departure contain the word “ringleader.” In the special verdict form, the jury answered yes to the question asking whether it could
“find beyond a reasonable doubt that in connection with the offense(s) for which the defendant was convicted that the defendant acted as the organizing force and directed the criminal activities of the [three] accomplices involved in this case.”
In pronouncing sentence, the district court stated:
“The Court has before it the State’s Motion for Dispositional Departure. Defendant is, indeed, in presumptive probation category. The State requests he serve his sentence in Department of Corrections. Having heard the evidence in the case, the Court is of the opinion — first off, I agree with the jury’s special verdict returned. It’s not clear whether such a procedure is required in order to grant a — give the Court the option of granting a motion for dispositional departure. But in any event, the Court, after hearing the evidence of trial, is of the opinion that but for Mr. Martin’s talents in organizing, controlling, supervising this criminal conspiracy, that it would have never taken place. I cannot say that for the other minor participants in the conspiracy. Any one of those who had dropped out, not been involved, decided not to become involved would not have kept the conspiracy in the crimes from taking place, but Mr. Martin had that unique position of being the originating, motivating, and supervising force behind this conspiracy. Counsel is correct. There is no decisional law in this jurisdiction where the kingpin factor is in fact, recognized as a basis for departure, although the Kansas Sentencing Guidelines list of factors that may give rise to departure is nonexclusive. I understand well the argument by [defense counsel] that basis for the departure is simply rehashing elements of the crime of conspiracy to commit identity theft. In part, that’s correct, but the Court then would have to ignore the importance that Mr. Martin brought to this organization. As I say, but for his involvement in this organization, this organization would never have taken place. I think were that — call it kingpin, call it whatever you want, the mastermind Mr. Martin was *630there, and but for him, these crimes would not have taken place. I think the law should recognize that this therefore is an egregious case. It does ciy out for additional consideration. So it is the Court’s opinion that there is a substantial, compelling reason that’s been presented by the State in its motion to grant a dispositional departure, and Mr. Martin therefore, you will be denied probation, ordered to serve your sentence at Department of Corrections.”
Abundant evidence was presented that Martin organized and ran the highly sophisticated multistate identity theft criminal enterprise herein. He controlled every aspect of the business, including selecting the persons whose identities were to be stolen, obtaining the personal data required for the identity theft, creating the high quality fake identification documents necessary to profit from the stolen identities, determining in what cities the fake identification would be used, directing exactly where and what merchandise would be obtained, and the receiving and disposing of the goods obtained. He recruited individuals to carry out his instructions, the individuals being paid on a commission basis. Every aspect of the operation was under Martin’s control — even down to what hotels his workers would use and what rental cars would be obtained.
The term “ringleader” is inappropriate to describe Martin’s role in the criminal business he ran. The teenage boy who suggests spray painting graffiti on the walls of the school he and his friends attend and supplies the paint for the joint undertaking can be characterized as the ringleader. The individual who convinces two individuals to join him in robbing a convenience store can be said to be the ringleader. The term is inaccurate when characterizing individuals who are, in essence, CEO’s of multistate sophisticated criminal enterprises and organizations requiring highly specialized skills and organizational abilities in order to succeed.
Fortunately, it is rare for such CEO’s to be prosecuted in the state courts of Kansas. They are not often arrested in Kansas and, if caught in the state, would most likely be tried in the federal courts. The federal court system frequently deals with sophisticated multistate criminal enterprises. This is why tire Federal Sentencing Guidelines contain an elaborate formula for sentencing based on relative responsibility. I recognize that in United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005), *631the application of the Guidelines was significantly altered on the grounds that judges, not juries, made the findings supporting upward departure. As a result, a finding based on mere preponderance of the evidence could result in a more severe sentence being imposed. The rationale is similar to that employed in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
However, the Federal Sentencing Guidelines for determining a sentence based on relative responsibility are still instructive. The federal courts are permitted to increase the offense level by varying degrees as follows:
4 levels: “If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.”
3 levels: “If the defendant was a manager or a supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.”
2 levels: “If the defendant was an organizer, leader, manager, or supervisor in any criminal activity not described above [i.e., less than 4 participants, not extensive].” U. S. S. G. § 3B1.1 (2004).
No adjustment if defendant merely suggests committing the crime.
Application Note 4 to these Guidelines is quite interesting when viewed in the context of the case before us. When distinguishing between a leadership or organizational role (most severe) versus a management or supervisor role (less severe), the factors a court should consider include-.
(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 a crime;
(5) the degree of participation in planning or organizing the offense;
(6) the nature and scope of the illegal activity; and
(7) and the degree of control and authority exercised over others.
*632Again, the Application Notes indicate that titles (kingpin, boss, mastermind, ringleader) are not controlling. They further indicate that more than one person can qualify as a leader or organizer of a criminal association or conspiracy.
I also conclude that the majority’s reliance on State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996), is misplaced. Favela was convicted of attempted second-degree murder and received a downward departure sentence from which the State appealed. The Favela opinion is lengthy and covers a variety of issues. The portion the majority deems relevant herein is quite brief and states, in its entirety:
“AGE 17
“The State contends that the fact the defendant was only 17 when he committed the crime is not a substantial and compelling reason justifying departure because the defendant was adjudicated to stand trial as an adult on the charge of attempted murder. Further, in an apparent attempt to show the defendant was a dangerous 17-year-old, the State pointed to the testimony of a police officer who participated in the stand-off which it presented at the sentencing hearing. The officer testified that the defendant goes by the street name of Lunatic and the officer thinks tire defendant is in a gang.
“K.S.A. 1994 Supp. 21-4716(b)(2)(A) specifically lists the victim’s young age as an aggravating factor but 21-4716(b)(1) says nothing about the defendant’s young age being a mitigating factor. Even though the list of mitigating factors is nonexclusive, the doctrine of expressio unius est exclusio alterius applies here, and, thus, the legislature must not have intended for the defendant’s young age to be a mitigating factor. The fact the defendant was only 17 years old at the time of the offense is not a substantial and compelling reason justifying departure as a matter of law, but it may be considered as part of the entire package.” 259 Kan. at 234-35.
This portion of Favela is dealing only with the age of the defendant as being a mitigating factor, just as the young age of a victim may be an aggravating factor. Age of the defendant is a status factor and has nothing to do with involvement or degree of participation in the crime. The majority uses the reasoning in Favela to buttress its conclusion that by identifying a defendant’s minor or passive role in the crime as a mitigating factor (K.S.A. 2004 Supp. 21-4716[c][1][B]) and not specifically including a ringleader role in the criminal enterprise as constituting an aggravating factor (K.S.A. 2004 Supp. 21-4716[c][2]), the legislature did not intend *633to authorize an upward departure based on greater culpability due to a defendant’s leadership in the criminal enterprise.
I disagree. The basic premise is that all participants are considered equal for sentencing based on crime committed and respective criminal histories. By statute, a minor or passive role can be the basis for a downward departure. Obviously, an upward departure based on just some minor increased participation is inappropriate — hence, the federal court’s various levels of participation.
The Kansas Sentencing Guidelines enumerate various aggravating factors but preface the list with the statement that the list is nonexclusive “in determining whether substantial and compelling reasons for a departure exist.” K.S.A. 2004 Supp. 21-4716(c). The district court found in a special jury verdict that Martin’s participation was essentially the originating, motivating, and supervising force behind the conspiracy. The court held this to be an egregious case whose facts constitute a substantial compelling reason to grant an upward departure. I agree. Under the majority’s analysis, in the Prohibition days in Chicago, Al Capone and his truck drivers transporting his illegal alcohol are equally culpable and should receive the same sentence. As the truck drivers carry out their criminal acts in public, they could easily have more serious criminal histories than the leader of the criminal enterprise whose involvement is shielded from public view. Thus, Capone could end up with the shortest sentence. The upward departure sentence imposed on Martin herein was appropriate under Kansas law. I would affirm the district court and the Court of Appeals on this issue.
Davis, J., joins in the foregoing concurring and dissenting opinion.