United States v. Duran Wombles

673 F. App'x 489
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 15, 2016
Docket15-5555
StatusUnpublished
Cited by1 cases

This text of 673 F. App'x 489 (United States v. Duran Wombles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Duran Wombles, 673 F. App'x 489 (6th Cir. 2016).

Opinion

HELENE N. WHITE, Circuit Judge.

Duran Wombles pleaded guilty to one count of conspiracy to distribute heroin and one count of being a felon in possession of a firearm. After calculating his advisory guideline range at 210 to 262 months’ imprisonment, the district court imposed concurrent terms of 200 and 120 months, respectively. Wombles now appeals, asserting that (1) his guideline calculation erroneously included a “supervisor” enhancement and (2) the court unreason *490 ably failed to consider his disadvantaged childhood when it imposed sentence. We AlFFIRM.

I

Wombles was indicted as a member of a black-tar heroin distribution ring active in the Eastern District of Kentucky, along with Israel Gonzalez-Pasos, Tamara Wombles, Lauren Summers, and Jesus Lizar-raras-Estudillo.

Wombles pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

In his plea agreement Wombles admitted that he was responsible for a kilogram or more of heroin in connection with the conspiracy, which involved Wombles and Summers receiving heroin-containing balloons from their co-conspirators to distribute to retail customers. In January 2014, Wombles lent his truck to a co-conspirator, who drove to Chicago to obtain a “load” of heroin. Plea Agreement, R. 222, at 3. Law enforcement discovered the conspiracy through confidential informants and a series of controlled purchases. According to the presentence report, Wombles and Summers met in a drug-treatment program and subsequently developed a romantic relationship and relapsed. Summers accompanied Wombles while he made street-level sales, and on at least one or two occasions she delivered heroin on his behalf, returning the proceeds to him.

Wombles’ childhood was, without doubt, horrific. His mother was a drug addict and prostitute who forced her children to witness her sexual encounters with, and steal from, her customers. As children, Wombles and his sister were bartered to their mother’s drug dealer, who abused both of them for. years. The assistant United States attorney in this case stated that in his quarter century as a prosecutor, Wombles’ childhood was among the half-dozen worst he had seen. The district court described Wombles’ -family situation as “trag[ic].” Sentencing Tr., R. 245, at 40.

This horrific childhood set Wombles on a regrettable path into adulthood. He was introduced to drugs by his family, and by the time he was arrested in the instant case, he was addicted to heroin and had been convicted in Ohio and Kentucky state courts of several serious offenses, including cocaine possession, heroin trafficking, and receiving stolen property. As a result of these convictions, Wombles was incarcerated for a total of approximately sixteen months. He left school after completing the ninth grade, has not obtained a high-school diploma or equivalent, and until he was indicted in April 2014, led an itinerant lifestyle without steady employment.

II

A

Wombles first challenges the inclusion of a “supervisor” enhancement in the calculation of his guideline range. Under the Sentencing Guidelines, an offender’s total offense level may be enhanced if he “was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants.... ” U.S.S.G. § 3Bl.l(b).

Before applying this enhancement to its sentencing calculation, a district court considers several factors, including: “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 *491 offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” Id. at App. Note. 4. The Government must prove the factual basis for a disputed adjustment by a preponderance of the evidence. United States v. Feinman, 930 F.2d 495, 500 (6th Cir. 1991). As we explained in United States v. Washington, district courts are “best situated to determine whether someone is or is not a ‘leader’ of a conspiracy,” and so we review a court’s conclusions under § 3Bl.l(b) deferentially. 715 F.3d 975, 983 (6th Cir. 2013) (citing Buford v. United States, 532 U.S. 59, 66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001)).

Wombles received a “supervisor” enhancement based on evidence that on at least one or two occasions he directed Summers to deliver heroin on his behalf— which she did, returning the proceeds to him. Wombles does not dispute that the conspiracy involved five or more participants. Nor does he dispute that on at least one occasion Summers did deliver heroin on his behalf. Rather, he argues that the minimal history of Summers delivering heroin on his behalf is overcome by the fact that they were co-equal romantic and business partners. These transactions, Wombles contends, are appropriately characterized as one partner asking, and the other doing, a favor, rather than as a supervisor-supervisee relationship. In overruling Wombles’ objection to the supervisor enhancement, the district court stated that it had considered the factors provided in the application note to § 3Bl.l(b) and found that even this limited direction of Summers was sufficient to justify a role adjustment.

On appeal, Wombles cites precedents involving a romantic-partner drug courier and a one-time delivery. These cases dealt with conduct that sustained a supervisor enhancement, but Wombles distinguishes their scale from his own facts. In United States v. Washington, a defendant received a supervisor enhancement for directing his girlfriend to deliver drugs on a frequent basis. 127 F.3d 510, 515 (6th Cir. 1997). In United States v. Elledge, a defendant recruited another to make a one-time delivery, nearly 300 pounds of marijuana driven cross-country. 344 Fed.Appx. 119, 126-27 (6th Cir. 2009). Neither opinion, however, suggests that scale is a necessary or dis-positive consideration to imposing a supervisor enhancement.

We have held that a defendant is subject to a supervisor enhancement if he “exercised control or authority over at least one accomplice.” United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009).

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673 F. App'x 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-duran-wombles-ca6-2016.