# United States v. Roger Skinner

> Court of Appeals for the Seventh Circuit · April 19, 1993 · 986 F.2d 1091

URL: https://www.frixlaw.com/law-library/cases/9483944

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Roger SKINNER, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** April 19, 1993
- **Citations:** 986 F.2d 1091; 1993 WL 38172
- **Precedential status:** Published
- **Opinion:** Concurrence by Rovner
- **Judges:** Bauer, Ripple, Rovner
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483944

## How later opinions describe it (automated extraction)

- noting that no § 3B1.1 adjustment may be imposed where a defendant was not relatively more responsible than other participants

## Opinion text

ILANA DIAMOND ROVNER, Circuit Judge,
concurring.
I concur fully in the court’s opinion and write separately merely to add several brief observations regarding the propriety of the enhancement pursuant to section 3Bl.l(c) of the Sentencing Guidelines.
At first blush, it might seem counterintuitive to deem someone caught in a reverse sting operation an “organizer.” In this case, after all, the government did not stumble fortuitously upon a narcotics transaction already in progress. Instead, once a confidential informant had introduced Special Agent Final to Skinner, the agent solicited Skinner’s help in purchasing cocaine and selling a large quantity of marijuana. In at least some measure, therefore, the government itself was responsible for orchestrating the transaction. Cf. United States v. Carroll, 893 F.2d 1502, 1509 (6th Cir.1990) (defendant’s efforts to organize his own escape from prison did not support section 3Bl.l(c) enhancement, because “while Carroll may have suggested a prison escape, the government, unbeknownst to Carroll, had actually taken over and was actually organizing the operation”).
Nonetheless, as the court’s opinion makes clear, the evidence amply demonstrates that once Special Agent Final made his wishes known to Skinner, Skinner picked up the ball and assumed responsibility for locating someone to buy the marijuana from Final and to supply him with cocaine. Thus, Skinner did not simply execute a transaction that the government initiated, but negotiated the terms of the deal with Final and located the other individuals needed in order to make the transaction possible. Accordingly, the two-level enhancement under section 3Bl.l(c) was an appropriate means of recognizing Skinner’s degree of responsibility for the criminal activity.
Moreover, to the extent that Skinner’s role in the offense might not fall neatly within the ordinary notion of an organizer, I find it significant that, in contrast to subsections (a) and (b) of 3B1.1, subsection (c) draws no distinction between an “organizer” or “leader” on the one hand and a “supervisor” or “manager” on the other— any one of these qualifies for the two-level enhancement. Thus the observation in the Commentary:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3Bl.l(c).
U.S.S.G. § 3B1.1, Background. See United States v. Herrera, 878 F.2d 997 , 1000 n. *1102 1 (7th Cir.1989); see also United States v. Pierce, 907 F.2d 56 , 57 n. 3 (8th Cir.1990). Accordingly, even if Skinner's level of responsibility was insufficient to characterize him as an organizer or leader of the scheme, the evidence would still suffice to render him a supervisor or manager and thus to support the enhancement under section 3B1.1(c). See, e.g., United States v. Carrillo, 888 F.2d 117, 118 (11th Cir.1989) (per curiam) (section 3B1.1(c) enhancement upheld where evidence was sufficient to support finding that defendant was either an "organizer" or a "supervisor"); United States v. Mejia-Orosco, 867 F.2d 216, 222 (5th Cir.) (section 3B1.1(c) enhancement upheld where district court's finding that defendant was "an organizer, leader, manager or supervisor" was not clearly erroneous), re h'g denied per curiam, 868 F.2d 807 (5th Cir.), cert. denied, 492 U.S. 924 , 109 S.Ct. 3257 , 106 L.Ed.2d 602 (1989).
Finally, I wish to point out that our holding is not inconsistent with the opinions of the First and Ninth Circuits in United States v. Fuller, 897 F.2d 1217 (1st Cir. 1990), and United States v. Mares-Molina, 913 F.2d 770 (9th Cir.1990). We cited both of these cases in Brown for the proposition that a defendant's status as a narcotics distributor, without more, does not render him or her an "organizer, leader, manager or supervisor" within the meaning of section 3B1.1(c). 944 F.2d at 1381. Like our own opinion in Brown, these two cases note the defendant's lack of control over others as a reason for reversing the imposition of a section 3B1.1(c) enhancement. See Fuller, 897 F.2d at 1220-21 ; Mares-Molina, 913 F.2d at 773-74 . Yet, each opinion also reveals that control over others is not the sine qua non of this enhancement. Thus, in Fuller , the First Circuit stated that "the defendant must have exercised some degree of control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime." 897 F.2d at 1220 (emphasis supplied). 1 The Ninth Circuit applied the same rule in Mares-Molina , concluding that a section 3B1.1(c) enhancement was not appropriate where "[t]here [were] no facts to support the conclusion that Mares exercised control or was otherwise responsible for organizing, supervising, or managing others in the commission of the offense." 913 F.2d at 770 (emphasis supplied).
Nor is our holding inconsistent with the opinion of the Tenth Circuit in United States v. Reid, 911 F.2d 1456, 1464-65 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 990 , 112 L.Ed.2d 1074 (1991). We recently construed Reid to require proof that the defendant exercised either direct or indirect control over the other members of a criminal scheme before he or she will be deemed an organizer or leader. See United States v. McGuire (discussed ante at n.2), 957 F.2d 310 , 317 n.4 (7th Cir.1992). Yet, Reid itself indicates that a defendant's efforts to marshal other individuals for the purpose of executing the crime will satisfy section 3B1.1. 911 F.2d at 1464 . See United States v. Litchfield, 959 F.2d 1514, 1522 (10th Cir.1992) ("to find a defendant an organizer or leader under § 3B1.1 there must be elements of control or organization of other people") (emphasis supplied). Cf. United States v. Rowley, 975 F.2d 1357, 1364 (8th Cir.1992) (for a defendant to fall within definition of an organizer or leader, "we have always required evidence that the defendant directed or procured the aid of underlings") (emphasis supplied).
*1103 Consequently, each of these cases leaves ample room for our holding here, i.e., that a defendant's role in bringing together and coordinating the other participants in a criminal scheme may render him or her an organizer within the scope of section 3B1.1(c), even if the defendant did not necessarily control or command these other individuals. See United States v. Paulino, 935 F.2d 739 , 758 (6th Cir.1991) ("`A finding that a defendant is functioning as an organizer or leader . . . does not necessarily mean that he is directly controlling other individuals.'") (quoting United States v. Johnson, 906 F.2d 1285, 1291-92 (8th Cir. 1990)), cert. denied, — U.S. —, 112 S.Ct. 315 , 323, 660, 883, 116 L.Ed.2d 257 , 264, 751, 787 (1991-92). For these reasons, I agree that the district court's decision to impose the two-level enhancement pursuant to section 3B1.1(c) was not clearly erroneous.
. The dissent in Mares-Molina construed Fuller to require proof that the defendant controlled other participants in the crime in order for section 3B1.1(c) to apply. See Mares-Molina, 913 F.2d at 775-76 (dissenting op.). Yet, as set forth above, Fuller in fact held that either control over others or a role in coordinating their efforts would suffice. 897 F.2d at 1220 . The dissent's somewhat misleading construction of Fuller no doubt springs from the fact that the particular question posed in Mares-Molina was whether a defendant who merely coordinated particular activities, without controlling or organizing other people, could be deemed a manager for purposes of section 3B1.1(c). The majority answered this question in the negative, id. at 773-74 , while the dissent concluded that management of a thing, such as a business or money, would be sufficient to render someone a manager within the meaning of section 3B1.1(c), id. at 774-77 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483944. Public record. Not legal advice.