{"id":17514,"date":"2012-06-12T13:15:37","date_gmt":"2012-06-12T18:15:37","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=17514"},"modified":"2012-06-12T13:16:40","modified_gmt":"2012-06-12T18:16:40","slug":"who-is-a-supervisor-we-know-one-when-we-see-one","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/06\/who-is-a-supervisor-we-know-one-when-we-see-one\/","title":{"rendered":"Who Is a \u201cSupervisor\u201d? We Know One When We See One"},"content":{"rendered":"

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the \u201cI know it when I see it\u201d test. Based on his opinion yesterday in United States v. Figueroa<\/em> (No. 11-2594)<\/a>, Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a \u201cmanager\u201d or \u201csupervisor.\u201d<\/p>\n

Under \u00a7 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 \u201cleader\u201d or \u201corganizer.\u201d 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.<\/p>\n

Writing for the panel in Figueroa<\/em>, Judge Posner seemed to scoff at this approach:\u00a0<\/p>\n

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 \u201cmiddle manager\u201d), there is no need to sweat over the terms \u201cmanager\u201d or \u201csupervisor\u201d\u2014to worry, for example as we did recently in United States v. Robertson<\/em>, 662 F.3d 871, 877 (7th Cir. 2011), quoting earlier cases, over whether a defendant given an enhancement under one of these rubrics \u201cexercised some control over others\u201d or alternatively \u201cplayed a coordinating or organizing role.\u201d If a judge, a probation officer, a lawyer, even a defendant, doesn\u2019t know what a \u201cmanager\u201d or \u201csupervisor\u201d is, Application Note 4 isn\u2019t going to help him\u2014especially since it\u2019s 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\u2019t try the reader\u2019s patience with a trip to the dictionary, where we would find other unhelpful synonyms for \u201csupervisor,\u201d such as one who \u201coversees,\u201d or unhelpful periphrases such as \u201cto coordinate, direct, and inspect continuously and at first hand [in order] to accomplish\u201d some objective. (7)<\/p><\/blockquote>\n

Rejecting such formalistic approaches, the court employed a more intuitive analysis in affirming that Figueroa was indeed a supervisor:<\/p>\n

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 \u201cmule\u201d; the defendant was the mule skinner. We don\u2019t 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\u2019ve done it. That was the defendant\u2019s job.<\/p>\n

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)<\/p><\/blockquote>\n

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\u2019s approach is refreshingly direct and commonsensical.<\/p>\n

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 \u201csupervisors,\u201d then the middle category may be getting squeezed pretty thin.<\/p>\n

In addition to affirming the lower court\u2019s decision that Figueroa was a supervisor, the Seventh Circuit also indicated in dicta that \u201csomeone dropped the ball\u201d in failing to see that Figueroa\u2019s criminal activity \u201cinvolved five or more participants or was otherwise extensive,\u201d and hence merited a three-level, instead of just a two-level, enhancement. (7) Although there were only four identified individuals in Figueroa\u2019s drug trafficking,<\/p>\n

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\u2019s 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\u2019t 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)<\/p><\/blockquote>\n

The reasoning here suggests an expansiveness in the definition of \u201cotherwise extensive\u201d that mirrors the court\u2019s expansive understanding of \u201csupervisor.\u201d<\/p>\n

Cross posted at Seventh Circuit Updates<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the \u201cI know it when I see it\u201d 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 \u201cmanager\u201d or […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,74,122,23],"tags":[],"class_list":["post-17514","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-public","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17514","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=17514"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17514\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=17514"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=17514"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=17514"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}