Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”
Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.
Writing for the panel in Figueroa, Judge Posner seemed to scoff at this approach:
When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”—to worry, for example as we did recently in United States v. Robertson, 662 F.3d 871, 877 (7th Cir. 2011), quoting earlier cases, over whether a defendant given an enhancement under one of these rubrics “exercised some control over others” or alternatively “played a coordinating or organizing role.” If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him—especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge. So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective. (7)
Rejecting such formalistic approaches, the court employed a more intuitive analysis in affirming that Figueroa was indeed a supervisor:
The defendant supervised Cruz. He told him where to go to get the drugs and, when he returned with them, where to meet him to deliver the drugs and get paid. Cruz was a “mule”; the defendant was the mule skinner. We don’t call real mule skinners supervisors, because mules are not people. But drug mules are people and the defendant was a supervisor, or if one prefers a manager. A supervisor, a manager, tells people what to do and determines whether they’ve done it. That was the defendant’s job.
But, he argues, he was merely transmitting orders received from Primo. He had no discretion. He was like a Western Union messenger, or indeed like a telephone wire. But supervision often consists of transmitting directives from above. Low-level supervisors are themselves closely supervised and thus have little discretion. (7-8)
In an area of the law in which the judges and lawyers often seem to be engaged in an analytical process that is akin to counting angels dancing on the head of a pin, Posner’s approach is refreshingly direct and commonsensical.
Yet, I wonder if the reasoning really is consistent with the spirit of Part 3B of the guidelines, which includes not only the aggravating role enhancements, but also sentence reductions for minor and minimal participants in a criminal activity. If supervisors get a sentence enhancement and minor participants get a sentence reduction, then there should be some substantial middle category of low-level participants who get the regular, unadjusted sentence. If mere go-betweens who exercise no discretion really are “supervisors,” then the middle category may be getting squeezed pretty thin.
In addition to affirming the lower court’s decision that Figueroa was a supervisor, the Seventh Circuit also indicated in dicta that “someone dropped the ball” in failing to see that Figueroa’s criminal activity “involved five or more participants or was otherwise extensive,” and hence merited a three-level, instead of just a two-level, enhancement. (7) Although there were only four identified individuals in Figueroa’s drug trafficking,
Figueroa paid for Cruz and his family to fly from Chicago to Texas, and doubtless the purpose of having Cruz drive with his family rather than alone was, by making his trip seem innocent, to reduce the likelihood of his being apprehended en route. The family members thus were outsiders involved in the drug enterprise. In addition, Cruz made a number of heroin-bearing trips to Chicago, and in the one that led to the defendant’s arrest was carrying 37 kilograms of heroin, which would have a wholesale value of up to $2.5 million. A drug operation that handles such large quantities is likely, though not certain, to have at least five participants, even if they can’t all be identified, which further supports an inference, drawn from the geographical extent and amount of drugs, that the conditions for the sentencing enhancement were satisfied in this case. (6)
The reasoning here suggests an expansiveness in the definition of “otherwise extensive” that mirrors the court’s expansive understanding of “supervisor.”
Cross posted at Seventh Circuit Updates.