[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16776 AUGUST 5, 2003
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D.C. Docket No. 02-00109-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD THADDEUS PERRY,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Alabama
_________________________
(August 5, 2003)
Before ANDERSON, BLACK and RONEY, Circuit Judges.
PER CURIAM:
Edward Thaddeus Perry appeals his 106-month sentence for conspiracy to
possess with intent to distribute cocaine, and possession with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Perry makes two arguments
as to his sentence: (1) there was insufficient evidence to support a two-level
aggravated role enhancement under U.S.S.G. § 3B1.1(c); and (2) the district court
erred by denying his request for a minimal or minor role reduction under U.S.S.G. §
3B1.2. We affirm as to the enhancement, but vacate and remand for further
consideration of his request for a minimal or minor role reduction.
Aggravating Role Enhancement
“If a defendant was an organizer, leader, manager, or supervisor of the criminal
activity, his offense level may be increased by two.” United States v. Phillips, 287
F.3d 1053, 1058 (11th Cir. 2002). “[T]he assertion of control or influence over only
one individual is enough to support a § 3B1.1(c) enhancement.” Id. (internal citation
and quotation omitted). “In distinguishing a leadership role, the district court should
consider ‘the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.’” Id. (quoting U.S.S.G. § 3B1.1, cmt. (n.
4)).
Here, the record reveals that Perry (1) actively recruited two individuals to
transport drugs, (2) arranged one of those recruited individuals to transport cocaine,
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(3) directly paid at least one of those individuals for transporting cocaine, and (4)
was, in turn, paid for his recruitment and supervision of individuals in that drug
conspiracy. The district court did not clearly err in assessing Perry an aggravated role
enhancement under § 3B1.1(c). See Phillips, 287 F.3d at 1058.
Mitigating Role Adjustment
Perry argues that he is entitled to a minimal or minor role reduction under
U.S.S.G. § 3B1.2, citing facts contrasting his role with other participants of the drug
conspiracy. See, e.g, United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002)
(noting that the district court “must measure the defendant’s role against the relevant
conduct for which she was held accountable at sentencing . . . [and] may also measure
the defendant’s role against the other participants . . . in that relevant conduct,”
quoting United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999)).
In response to this argument, the government, without citation of authority,
analysis, or reasoning simply says:
These are not two separate issues, but rather one issue. . ..
If there was no error in awarding the two-level
enhancement for leadership, then it is axiomatic that Perry
did not have a minor role in the offense . . .. Therefore, the
United States will address only the issue of whether the
district court erred in awarding Perry the two-level
enhancement for leadership.
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Inexplicably, the government’s brief neither cites nor comments upon the two
cases from the circuits found to have addressed such a proposition, which both hold
to a contrary position, and which were cited in both the initial and reply briefs of the
defendant.
In United States v. Tsai, 954 F.2d 155 (3d Cir. 1992), the Third Circuit,
considering the defendant’s argument that aggravating and mitigating roles in the
offense – as defined by the Guidelines – can “coexist,” addressed the government’s
argument that this was a “logical inconsistency” by holding:
The district court apparently assumed that because it had
(properly) found that there could be an upward adjustment
for the offense, there could be no downward adjustment for
less than average culpability. This assumption is incorrect.
Nothing in the Guidelines or in the enabling legislation, the
Sentencing Reform Act, 18 U.S.C. §§ 3551 to 3585 (1988),
compels that conclusion.
954 F.2d at 167. Although it had affirmed the two level upward adjustment because
the defendant was a manager or supervisor, the Tsai court remanded to the district
court for consideration of whether the defendant was entitled to a downward
adjustment. The government did not appeal that decision.
Likewise, in a case where the Seventh Circuit held that the downward
adjustment was clearly erroneous, it adhered to the Third Circuit’s ruling:
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[T]hough the government goes too far in arguing that there
can never be a situation in which a defendant could receive
both a punishment bonus for being a manager or supervisor
and a punishment discount for being a minor participant.
Section 3B1.2 does not say that a manager or supervisor
cannot be a minor participant; all that is required is that be
less culpable than most of the other participants.
United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), rev’d in part on other
grounds, 531 U.S. 953 (2000); but see United States v. Conley, 156 F.3d 78 (1st Cir.
1998) (“Because an upward adjustment for a managerial role is fundamentally
inconsistent with according the same individual, in respect to the same offense, a
downward adjustment for a minor or minimal role, the district court did not err in
failing to grant the appellant’s motion for reduction.”).
This Court has not addressed whether the Eleventh Circuit should differ from
the other circuits as to these holdings, nor do we intend to without reasoned argument
from the government as to whether they are or are not a correct interpretation of the
Sentencing Guidelines. It may well be that the district court followed a contrary
view, sub silentio, without full consideration of the issue. Intimating no view as to
either issue, however, we therefore vacate the sentence and remand to the district
court for consideration of both the legal and factual issues concerning the defendant’s
request for a minimal or minor role reduction. Needless to say, the district court is
free to determine, if it so finds, that the defendant would not be entitled to the
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minimal or minor role reduction even if the enhancement for an aggravated role did
not foreclose such a downward reduction, and thus pretermit a decision on that legal
issue.
AFFIRMED IN PART, VACATED, AND REMANDED FOR FURTHER
CONSIDERATION.
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