[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 25 2000
THOMAS K. KAHN
Nos. 97-2873 CLERK
________________________
D. C. Docket No. 96-00096-CR-ORL-18
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT WILLIAM YEAGER, ROY ROBERT YEAGER, JEFFREY
CHRISTOPHER YEAGER, DUANE C. YEAGER, and BEVERLY DENISE
YEAGER,
Defendants-Appellants.
_______________
No. 97-2894
_______________
D.C. Docket No. 96-00096-CR-ORL-18
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY ROBERT YEAGER, a.k.a. Buddy,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 25, 2000)
Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER1,
District Judge.
PER CURIAM
In this factually complex, multi-defendant direct criminal appeal, we address
one issue in this published opinion, and resolve all other claims on appeal in an
unpublished appendix. The one matter that warrants publication relates to Robert
Williams Yeager’s challenge to the analysis used by the district court in applying the
role-in-the-offense enhancement under U.S.S.G. § 3B1.1.
This case is brought against various members of what was denominated in the
indictment as the Yeager organization. It was alleged that this organization, operating
from locations in rural mid-Florida, engaged in the large-scale theft of commercial
trucks and tractor-trailers, interstate transportation of these vehicles and their parts,
arson, homicide, the manufacture and distribution of methamphetamine, and insurance
1
Honorable J. Owen Forrester, U.S. District Judge for the Northern District of Georgia,
sitting by designation.
2
fraud. It was alleged that Robert William Yeager (hereinafter “Robert Yeager”)
directed the activities of the organization.
Robert Yeager’s convictions were divided into seven groups for sentencing, an
arrangement which he does not oppose. (R29-35). Group One represented the drug
offenses, including Robert Yeager’s conviction for participation in a
methamphetamine conspiracy in violation 21 U.S.C. § 846. This group had the
highest adjusted offense level and was therefore the focus of the court at sentencing.
The trial court set Robert Yeager’s base offense level for Group One at 32, calculated
based upon the amount of methamphetamine attributed to him. (R29-60). The court
enhanced his offense level by a two-level increase for possession of a dangerous
weapon, a four-level increase for an aggravating role in the offense, and a two-level
increase for obstruction of justice. (R29-35-46; 59-60). The court as a result found
Robert Yeager’s adjusted offense level for Group One to be 40. (R29-59-60).
Robert Yeager contends on appeal that the district court erred in adjusting his
offense level under Group One upward by four levels under U.S.S.G. § 3B1.1(a) for
his role in the offense. He asserts that there was no evidence presented at trial or
sentencing upon which it could be determined that he was an organizer or leader of
the methamphetamine conspiracy. He argues that the district court improperly relied
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upon his role in the overall RICO conspiracy to enhance his offense level for the drug
convictions.
The government relies upon the Seventh Circuit decision in United States v.
Damico, 99 F.3d 1431 (7th Cir. 1996), cert. denied, 519 U.S. 1151 (1996), in support
of its contention that Robert Yeager’s adjusted offense level for Group One was
properly calculated. The court in Damico considered the issue raised by Robert
Yeager in the instant appeal: Whether U.S.S.G. § 2E1.1 requires that a defendant’s
role in the offense be separately judged with respect to each offense underlying his
RICO conviction, as opposed to being judged with respect to the overall RICO
conspiracy. Id. at 1435-36. The Seventh Circuit determined that “the predicate-by-
predicate approach of [U.S.S.G. § 2E1.1] applies . . . only for the purpose of
establishing a RICO defendant’s base offense level, and not for the purpose of
applying the Chapter Three adjustments.” Id. at 1438. We agree with the reasoning
of the Seventh Circuit.
The first step in applying the Sentencing Guidelines is to determine the
applicable offense guideline and ascertain the base offense level, applying any
appropriate specific offense characteristics, cross references, and special instructions
contained in that particular guideline. U.S.S.G. § 1B1.1(a)-(b).
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Robert Yeager was convicted under thirty-three separate counts, Count One
being a conviction for RICO. The offense guideline applicable to RICO is set forth
in U.S.S.G. § 2E1.1, and in this case it is ascertained from the offense level applicable
to the underlying racketeering activity. The district court determined that, based upon
the amount of drugs attributable to Robert Yeager, his base offense level for the
methamphetamine conspiracy was 32.
The district court then increased the offense level by two levels, pursuant to the
specific offense characteristic applicable to possession of a dangerous weapon. See
U.S.S.G. § 2D1.1(b)(1). Based upon the findings of the district court, the base offense
level for the underlying drug conspiracy was set at 34. As this is higher than the
alternative minimum level provided for in U.S.S.G. § 2E1.1(a)(1), this is the base
offense level to be used. The district court determined 34 to be the offense level
without applying the Chapter 3 adjustment for role in the drug offense at this stage of
the calculation. Therefore, the sentencing court never determined that Robert Yeager
was a leader or organizer of the drug conspiracy.
Instead, the district court applied the adjustments set forth in Parts A, B, and C
of Chapter Three to Count One. See U.S.S.G. § 1B1.1(c). The court determined that
Robert Yeager was a leader or organizer of the overall RICO conspiracy and applied
a four-level increase under U.S.S.G. § 3B1.1(a).
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Robert Yeager argues only on appeal that there was insufficient evidence of his
leadership role in the drug conspiracy; he does not deny his leadership role in the
overall RICO conspiracy. Because we agree with the Seventh Circuit in Damico that
it is appropriate to judge a RICO defendant’s role in the offense with respect to the
overall RICO conspiracy for the purpose of applying an enhancement under U.S.S.G.
§ 3B1.1(a), we reject this challenge by Robert Yeager.
SO ORDERED.2
2
The other issues on appeal are addressed in a separate, unpublished appendix, which sets
out the resolution of this appeal with respect to the several appellants.
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