United States v. Arbour

United States Court of Appeals
For the First Circuit

No. 07-1979

UNITED STATES,

Appellee,

v.

FRANK ARBOUR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Lipez and Howard,
Circuit Judges.

Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau &
Pachios, LLP, was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

March 12, 2009
 HOWARD, Circuit Judge. Appellant Frank Arbour pled

guilty to five counts in an indictment that charged him with

conspiring to possess with the intent to distribute cocaine and

cocaine base, 21 U.S.C. § 841(a)(1); being a felon in possession of

firearms, 18 U.S.C. § 922(g)(1); and possessing stolen firearms, 18

U.S.C. § 922(j). The district court sentenced Arbour to 100

months' imprisonment. He appeals his sentence only.

This case presents one issue: whether the sentencing

court erroneously concluded that Arbour was a "leader or organizer"

of a criminal activity that involved five or more participants or

was otherwise extensive. See U.S.S.G. § 3B1.1(a). The district

court's affirmative finding resulted in a four-level increase in

Arbour's offense level.

Arbour argues that the district court's conclusion was

erroneous for two reasons. First, he asserts that he was not

involved in a single criminal activity but rather in a number of

separate, unconnected criminal activities. None of these criminal

activities standing alone, Arbour says, satisfy § 3B1.1(a)'s

requirement that the criminal activity involve five or more

participants or be "otherwise extensive." Second, he argues that

even if he was involved in a single criminal activity that

satisfied § 3B1.1(a)'s numerosity or extensiveness requirement, he

could not be properly characterized as a leader or organizer of

-2-
five participants in the criminal activity. We disagree with

Arbour's contentions and affirm his sentence.

I. Facts

Because Arbour's conviction resulted from a guilty plea,

we draw the facts from the plea colloquy, the Presentence

Investigation Report and the transcript of the sentencing hearing.

See United States v. Graciani, 61 F.3d 70, 72 (1st Cir. 1995).

For a period of roughly eighteen months, Arbour

trafficked in powder cocaine and crack cocaine in Maine. Arbour

supplied a number of individuals with drugs for purposes of both

resale and consumption. Included among these individuals was Roy

Dubreil, who sold both forms of cocaine to others, often from his

home. At some point, Arbour moved in with Dubreil.

While Arbour was operating his drug trafficking business,

he collected a number of firearms. Because he was a convicted

felon, Arbour was prohibited from purchasing the firearms himself

and therefore he enlisted three others to purchase the weapons for

him. Two of these straw men, John Jackson and John Giannelli, were

familiar to Arbour from his drug trafficking business. Jackson was

one of Arbour's customers and also occasionally delivered drugs for

Arbour. Giannelli frequently bought drugs from Dubreil. For their

services in purchasing firearms for him, Arbour paid both Jackson

and Giannelli with drugs. Arbour paid Baron Thompson, a third

person he enlisted to purchase firearms, in cash.

-3-
 The three ersatz buyers acquired a total of six firearms

from a hardware store in Maine. Thompson alone purchased three

firearms. Unable to purchase firearms himself because of his age,

Jackson acquired two weapons indirectly, by enlisting a woman of

age, Crystal Landry, to purchase the firearms for him. Arbour was

directly involved in Giannelli's purchase from the hardware store,

accompanying Giannelli to the store and discretely identifying the

firearm he desired.1

The firearms that Thompson, Jackson and Giannelli

acquired for Arbour soon left Arbour's possession. Giannelli

testified that, on the date of his purchase of the weapon, he

witnessed a number of people from out of state arrive at Dubreil's

home. According to Giannelli, the visitors supplied Arbour with

drugs from Massachusetts, receiving money or "goods" in exchange.

Giannelli observed the men going into a room with Arbour and

Dubreil. Afterward, when Giannelli asked Dubreil where the firearm

he had purchased for Arbour was, Dubreil told him that it was

"already gone." Of the three weapons Thompson had purchased, two

of them were discovered in the possession of a Massachusetts

resident during a search of that person's home by law enforcement.

That individual was also in the possession of seventy bags of

1
Thompson, Jackson, Landry and Giannelli were all convicted of
various firearms offenses for their roles in these purchases.

-4-
cocaine. The firearms acquired by Jackson and Landry were never

found, either in Arbour's possession or anywhere else.

Eventually, the authorities investigated Arbour's drug

trafficking operation, ultimately searching Arbour's and Dubreil's

residence. In Arbour's room, the police discovered bedroom scales,

plastic baggies with cocaine residue, three firearms, and

ammunition. In Dubreil's room the authorities found ten firearms

and ammunition. Many of the firearms had been stolen, including

the three firearms found in Arbour's bedroom. Arbour subsequently

pled guilty to five drug and firearms related charges.

At Arbour's sentencing hearing, a number of witnesses

testified about his drug trafficking business and acquisition of

firearms. In addition to this testimony, defense counsel conceded

at sentencing that Arbour had traded guns for cocaine on at least

one occasion.

On the basis of sentencing hearing testimony and other

record evidence, the district court determined that Arbour was a

leader or organizer of a criminal activity that involved five or

more participants or was otherwise extensive. See § 3B1.1(a).

Although the court explicitly found that Arbour's criminal activity

involved five or more participants, the court also observed that

the criminal activity involved both Arbour's drug dealing and his

illegal acquisition of firearms. The district court also found

that Arbour held a leadership or organizational role within the

-5-
criminal activity. When discussing Arbour's status as a leader or

organizer, the court addressed the factors set forth in application

note four of the guidelines commentary accompanying § 3B1.1(a).

See § 3B1.1, cmt. n.4. Although the court observed that not every

factor counseled in favor of designating Arbour as a leader or

organizer, it found that many of them supported such a designation.

In addition to noting the nature of Arbour's participation in the

commission of the offenses, the court found that Arbour recruited

accomplices and exercised decision-making authority over both

Jackson and Giannelli.

II. Discussion

In order to invoke § 3B1.1(a), a district court must make

a finding as to scope -- that the criminal activity involved five

or more participants2 or was otherwise extensive -- and a finding

as to status -- that the defendant acted as an organizer and leader

of the criminal activity. United States v. Tejada-Beltran, 50 F.3d

105, 111 (1st Cir. 1995). The district court's findings must

satisfy the preponderance of the evidence standard. United States

v. Pierre, 484 F.3d 75, 89 (1st Cir. 2007).

Arbour challenges both the scope and status findings of

the district court. Because both findings are factbound, we review

each for clear error. Pierre, 484 F.3d at 89; United States v.

2
"A 'participant' is a person who is criminally responsible for
the commission of the offense, but need not have been convicted."
§ 3B1.1, cmt. n.1.

-6-
Colón-Muñoz, 318 F.3d 348, 364 (1st Cir. 2003) ("Role-in-the-

offense determinations are innately fact-specific. The court of

appeals must, therefore, pay heed to the sentencing judge's

views.") (quoting United States v. Rostoff, 53 F.3d 398, 413 (1st

Cir. 1995)). We will not find clear error unless "'on the entire

evidence [we are] left with the definite and firm conviction that

a mistake has been committed.'" United States v. Brown, 298 F.3d

120, 122 (1st Cir. 2002) (quoting Anderson v. City of Bessemer

City, N.C., 470 U.S. 564, 573 (1986)).

A. Scope determination

Arbour argues that he was not involved in a single

criminal activity that involved five or more participants or was

otherwise extensive. Rather, he contends that he was involved in

four separate clusters of criminal activity, none of which

individually met § 3B1.1(a)'s numerosity or extensiveness

requirement. Arbour identifies these four clusters by their direct

participants: 1) Arbour, Jackson, and Landry; 2) Arbour, Giannelli

and Jeremy Messer; 3) Arbour and Thompson; and 4) Arbour,

Giannelli, Dubreil, and Dean James.3 In Arbour's view, each group

was associated with separate instances of criminal activity -- the

3
The government introduced evidence that Messer had asked
Giannelli to purchase a firearm for Arbour and may have accompanied
Arbour and Giannelli to the hardware store when the purchase was
made. James helped collect money for Arbour that related to stolen
cocaine.

-7-
first three were involved in the procurement of firearms and the

fourth, in drug trafficking.

For § 3B1.1(a) to apply, the criminal activity that the

defendant led or organized must have involved five or more

participants or been extensive. § 3B1.1(a). The disjunctive

language of § 3B1.1(a) is important -- a criminal activity may be

extensive even if does not involve five or more participants. Id.

cmt. n.3 ("In assessing whether [a criminal activity] is 'otherwise

extensive,' all persons involved during the course of the entire

offense are to be considered. Thus, a fraud that involved only

three participants but used the unknowing services of many

outsiders could be considered extensive."); see also United States

v. Laboy, 351 F.3d 578, 585 n.10 (1st Cir. 2003) ("The 'five or

more participants' and 'otherwise extensive' elements are

alternative means of finding the required scope under § 3B1.1.");

United States v. D'Andrea, 107 F.3d 949, 957 (1st Cir. 1997)

(citing Rostoff, 53 F.3d at 413).

In addition, a court may look beyond the specific crimes

for which the defendant was convicted when determining whether the

criminal activity satisfied the numerosity or extensiveness

requirement. Laboy, 351 F.3d at 585-86. The court may consider

all "relevant conduct" surrounding the crimes of conviction. Id.

at 586 (rejecting defendant's argument that the assessment was

limited to the people directly involved in the three drug sales to

-8-
which the defendant pled guilty when making the

numerosity/extensiveness determination).

Here, the district court did not commit clear error when

it found that Arbour was involved in a criminal activity that

involved five or more participants or was otherwise extensive.

Although the court found that Arbour's criminal activity met both

the numerosity and extensiveness requirements of § 3B1.1(a), we

focus on the extensiveness component.

When determining whether a criminal activity is

extensive, we have noted that courts should consider "the totality

of the circumstances, including not only the number of participants

but also the width, breadth, scope, complexity, and duration of the

scheme." Pierre, 484 F.3d at 89 (quoting United States v. Dietz,

950 F.2d 50, 53 (1st Cir. 1991)). Arbour was involved in an

extensive criminal activity -- the trade of drugs for firearms and

vice-versa -- that involved a host of knowing and unknowing

participants. This overarching activity encompassed all of the

four clusters of criminal activity that Arbour identifies.

Arbour trafficked drugs in Maine for a period of roughly

eighteen months, supplying various individuals, including Dubreil,

with cocaine and crack cocaine. In the course of this drug

trafficking, Arbour unlawfully acquired at least six firearms. At

sentencing, the government introduced evidence linking Arbour's

unlawful acquisition of firearms with his drug trafficking. On at

-9-
least two occasions, Arbour, a convicted felon unable to obtain

firearms legally, paid others -- in the form of drugs -- to acquire

firearms for him. Jackson, who dealt drugs for Arbour on a fairly

regular basis, acquired two firearms for Arbour in order to pay off

a drug debt. In acquiring these firearms for Arbour, Jackson, who

was too young to purchase the weapons himself, employed the

services of Landry. In addition to Jackson, Arbour enlisted

Giannelli to acquire firearms for him, paying Giannelli with

cocaine for his service.

The government also introduced evidence that, after

paying others drugs to acquire firearms for him, Arbour traded

these firearms for drugs. First, Giannelli testified that after he

turned a firearm over to Arbour, he witnessed a number of men

arrive at Dubreil's home in cars with either Massachusetts or

Connecticut plates. Giannelli observed the men enter a room with

Arbour and Dubreil, and explained that it was his understanding

that these individuals supplied Arbour with drugs and received

"goods" in exchange. Subsequently, when Giannelli inquired into

the status of the firearm he purchased for Arbour, Dubreil told him

it was "already gone."

Second, during a raid of a home in Massachusetts, federal

agents acquired, in addition to a significant amount of cocaine, a

number of firearms. Two of these firearms were traced to Thompson,

who had purchased them at Arbour's direction and expense. Finally,

-10-
during the district court proceedings, Arbour's counsel conceded

that Arbour traded guns for cocaine on at least one occasion.

In light of the significant evidence of cross-pollination

between Arbour's drug and firearms dealings, both in the form of

overlapping goods and criminal participants, we cannot conclude

that the district court clearly erred in rejecting Arbour's attempt

to compartmentalize his criminal activity into separate, unrelated

clusters.

B. Status determination

That the record supports the district court's finding

that Arbour was involved in an extensive criminal activity,

however, does not end the matter. United States v. Thiongo, 344

F.3d 55, 63 (1st Cir. 2003) ("[T]he mere fact that the defendant

was involved in an extensive criminal activity does not support a

finding the defendant was an organizer or leader under § 3B.1.")

(citation omitted). To qualify for an enhancement under §

3B1.1(a), a defendant must have either organized or led the

criminal activity. Accordingly, we address § 3B1.1(a)'s status

component.

Arbour's challenge to the district court's status finding

has two parts. First, he contends that he did not lead or organize

anyone, but merely interacted with various people during the

commission of crimes. Second, Arbour argues implicitly throughout

his brief that, even if he led or organized some people, he did not

-11-
lead or organize the number of people required by § 3B1.1(a). The

magic number, in Arbour's view, is five or more individuals.

Arbour's first argument is easily dismissed -- the record

evidence amply supports the district court's finding that Arbour

led or organized criminal participants including Jackson and

Giannelli.4 Both the guideline commentary and case-law provide

direction for considering whether a defendant qualifies as a

"leader or organizer." The guideline commentary provides a non-

exhaustive list of factors that 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 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. § 3B1.1(a),

cmt. n.4. "There need not be proof of each and every factor before

a defendant can be termed an organizer or leader." Tejada-Beltran,

50 F.3d at 111.

The case law has further defined the terms leader and

organizer. "[T]he term leader implies the exercise of some degree

of dominance or power in a hierarchy, and also implies the

authority to ensure that other persons will heed commands." Id.

4
The district court did not label Arbour a "leader" as opposed to
an "organizer" or vice-versa, appearing to conclude that Arbour
could be characterized as both.

-12-
And "[o]ne may be classified as an organizer, though perhaps not as

a leader, if he coordinates others so as to facilitate the

commission of criminal activity." Id.

With respect to leading, Arbour, who was at the top of

the relevant drug dealing operation in Maine, exercised decision-

making authority over Giannelli, personally choosing which firearm

he wanted Giannelli to purchase. See § 3B1.1(a), cmt. n.4

("exercise of decision-making authority"). But the record even

more clearly supports a characterization of Arbour as an organizer.

There was evidence that Arbour hatched the plan to acquire firearms

illegally and that he sought out three others, Jackson, Giannelli,

and Thompson, to procure the weapons in his stead. See id.

("degree of participation in planning or organizing the offense";

"nature of participation in the commission of the offense";

"recruitment of accomplices"). Arbour's puppetry enabled him to

later use these firearms as currency in his drug trade. See

Tejada-Beltran, 50 F.3d at 112 ("coordinat[ing] others so as to

facilitate the commission of criminal activity").

We turn finally to the second part of Arbour's challenge,

which focuses on what he perceives to be § 3B1.1(a)'s requirement

that he lead or organize at least five individuals. Arbour

contends that, because he did not lead or organize five others, he

does not qualify for an enhancement. This contention lacks merit.

-13-
 On at least one occasion, we have acknowledged the

possibility that the number of individuals a defendant must lead or

organize to qualify under § 3B1.1(a) may depend in part on the

district court's scope finding. Specifically, the question may

hinge on whether the court finds the criminal activity to involve

five or more participants or whether it finds the activity to be

"otherwise extensive." See Rostoff, 53 F.3d at 414. In Rostoff,

we established that where the defendant is involved in a criminal

activity that is "otherwise extensive," there is no requirement

that the defendant "lead or organize" at least four other

participants. Id. ("Unlike numerosity, extensiveness does not

depend upon a finding that a criminal activity embraced no fewer

than five criminally responsible participants, much less a finding

that the activity included four or more persons under the

defendant's direct control.").

But we also noted in Rostoff that "some courts have held

that, when the applicability of § 3B1.1(a) depends upon numerosity

rather than extensiveness, the defendant must be shown personally

to have [led or organized] no fewer than four other participants."

53 F.3d at 413 n.15 (citations omitted).5 In so noting, we cited

decisions from the Seventh and Tenth circuits. Id. (citing United

5
As these cases indicate, "[t]he operative number of other persons
is four rather than five, since the defendant himself must be
counted as a participant and the defendant presumably is under his
own control." Rostoff, 53 F.3d at 413 (citations omitted).

-14-
States v. Carson, 9 F.3d 576, 584 (7th Cir. 1993) and United States

v. Reid, 911 F.2d 1456, 1465 n.8 (10th Cir. 1990)).

Regardless of whether the criminal activity involved five

or more participants or was otherwise extensive, the guideline

commentary makes plain that a defendant needs only to have led or

organized one criminal participant, besides himself of course, to

qualify as a leader or organizer under § 3B1.1(a). § 3B1.1(a),

cmt. n.2 ("To qualify for an adjustment under this section, the

defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.") (emphasis added).

Nearly every circuit court has reached this same conclusion. See,

e.g., United States v. Gaskin, 364 F.3d 438, 466-67 (2d Cir. 2004)

("Defendant need have been an organizer or leader only with respect

to any one of these [criminal participants] for the § 3B1.1(a)

enhancement to apply."); United States v. Harvey, 532 F.3d 326, 338

(4th Cir. 2008) (same); United States v. Eis, 322 F.3d 1023 (8th

Cir. 2003) (same); United States v. Owusu, 199 F.3d 329, 347 (6th

Cir. 2000) (same); United States v. Kamoga, 177 F.3d 617, 621-22

(7th Cir. 1999) (same); United States v. Camacho, 137 F.3d 1220,

1224 n.3 (10th Cir. 1998) (same); United States v. Okoli, 20 F.3d

615, 616 (5th Cir. 1994) (same); United States v. Barnes, 993 F.2d

680, 684-86 (9th Cir. 1993) (same). In fact, the circuits we cited

in Rostoff, the Seventh and Tenth, have since abandoned any

requirement that the defendant lead or organize at least four

-15-
others in order to qualify for an enhancement under § 3B1.1(a).

See Camacho, 137 F.3d at 1224 n.3; Kamoga, 177 F.3d at 621-22

(noting that § 3B1.1 "is designed precisely to prevent masterminds

of criminal schemes from escaping responsibility for their role

simply by delegating some authority to only one or two deputies").

Accordingly, both because the district court supportably

concluded that Arbour's criminal activity was extensive, see

Rostoff, 53 F.3d at 413, and because Arbour led or organized one or

more of the five or more individuals involved in his criminal

activity, he qualifies as a leader or organizer under § 3B1.1.

Arbour's numerosity argument as to status must therefore also fail.

III. Conclusion

For the reasons provided above, the sentence is affirmed.

AFFIRMED.

-16-