United States v. McKinney

5 F.4th 104

• Court: Court of Appeals for the First Circuit
• Decided: July 19, 2021
• Docket: 20-1265P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 20-1265

UNITED STATES OF AMERICA,

Appellee,

v.

RASHAAD MCKINNEY, a/k/a Dawson, a/k/a D,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Howard, Chief Judge, Selya, Circuit Judge, and Gelpí, District Judge.

Harris A. Mattson for appellant. Jeanne D. Semivan, Special Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

July 19, 2021

 Of the District of Puerto Rico, sitting by designation. GELPÍ, District Judge. Rashaad McKinney ("McKinney")

entered a guilty plea to drug and firearm conspiracy counts. In

this appeal, he challenges the district court's application of a

three-level enhancement to his guideline sentencing range for his

role in the offense as a manager or supervisor, pursuant to

U.S.S.G. §3B1.1(b). McKinney's principal argument is that the

district court erred in finding that he exercised authority or

control over other participants so as to invoke the enhancement.

I. Background1

In 2017, the Bureau of Alcohol, Tobacco, Firearms and

Explosives in conjunction with the Drug Enforcement Administration

and Maine Drug Enforcement Agency investigated a drug conspiracy

extending throughout central Maine. The members of the drug

trafficking organization ("DTO"), transported heroin and cocaine

from Rochester, New York, and distributed the same principally in

the Augusta, Maine area. The leaders of the DTO, Quinton Spinks

and Deondray Warren, would transport the drugs from Rochester.

Once in Maine, Spinks or Warren provided them on consignment to

the other members of the DTO, including McKinney, for distribution

and return of proceeds.

McKinney and other members of the DTO availed themselves

1 The facts that follow are taken from the record, particularly the indictment, plea agreement, presentence report, and sentencing hearing transcript. See United States v. Santa- Soler, 985 F.3d 93, 95 (1st Cir. 2021). - 2 - of local individuals to drive them around Central Maine to deliver

crack and heroin to their customers. Four grand jury sources of

information acted as drivers for McKinney and often the drug

transactions occurred within the vehicles. These persons, in

turn, would be paid in cash or drugs for personal use.

McKinney and other members of the DTO obtained firearms

illegally via straw purchasers who made false statements and

representations to federal firearms licensees in Kennebec County,

Maine. McKinney would also compensate the straw purchasers who

acted as drivers with currency and narcotics for personal use.

Moreover, McKinney sent several of these firearms to DTO members

in Rochester.

On July 14, 2018, McKinney was indicted on multiple drug

and firearm counts. 2 He pleaded guilty to count one of the

Indictment for conspiring to distribute and possess with intent to

distribute heroin and cocaine base, in violation of 21 U.S.C. §§

846, 841(a)(1) and 841 (b)(1)(C) as well as count seven of the

Indictment for conspiring to violate several federal firearms

laws, to wit, 18 U.S.C. §§ 371, 922(a)(5), 922(a)(6) and

924(a)(1)(A).

At the sentencing hearing, the district court relied

heavily on the grand jury testimony of individuals involved in the

2Spinks and Warren, among other co-conspirators were also charged in the indictment.

- 3 - conspiracy, including drivers and straw purchasers. Over

McKinney's objection, the district court found that he qualified

for a three-level enhancement for being a manager or supervisor of

the drug and firearm conspiracies, pursuant to U.S.S.G. §3B1.1(b).

Subsequently, the district court calculated an advisory guideline

range of 110 to 137 months and proceeded to sentence McKinney to

a downwardly variant sentence of 77 months of imprisonment as to

count one of the Indictment, and 60 months as to count seven, to

be served concurrently, followed by a three-year term of supervised

release.

II. Standard of Review

Appellate review of sentencing error claims involves a

two-step pavane. See United States v. Flores-Machicote, 706 F.3d

16, 20 (1st Cir. 2013). "We first examine any claims of procedural

error. If the sentence clears these procedural hurdles, we then

consider any claim that questions its substantive reasonableness."

United States v. Ilarraza, 963 F.3d 1, 7 (1st Cir. 2020)(internal

citations omitted). Because the appellant solely advances an

argument of procedural error, we do not address the substantive

reasonableness of his sentence, which ultimately fell

significantly below the applicable guideline range.

The government has the burden of proving the propriety

of an upward role-in-the-offense adjustment. See United States

v. Tejada–Beltrán, 50 F.3d 105, 113 (1st Cir. 1995). It must meet

- 4 - this burden by a preponderance of the evidence. United States

v. McCormick, 773 F.3d 357, 359 (1st Cir. 2014). On appeal, we

review the district court's underlying factual findings for clear

error and legal questions (including the interpretation and

application of the sentencing guidelines) de novo. Id. at 359

(citing United States v. Paneto, 661 F.3d 709, 715 (1st Cir.

2011)). "Where the raw facts are susceptible to competing

inferences, the sentencing court's choice between those inferences

cannot be clearly erroneous." Id. at 359 (citing United States

v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).

III. Discussion

McKinney claims that the district court erred in

concluding that he was a manager or supervisor of the drug

conspiracy because he directed people to buy firearms and told

them where to drive. In other words, the district court's

determination that he was a manager or supervisor was based

entirely on a finding that he requested and received specific

services from others in exchange for compensation. McKinney

posits that the district court's finding that he exercised

authority or control over local members of the conspiracy was

premised on a misinterpretation of U.S.S.G. §3B1.1(b).

Specifically, McKinney argues that the district court failed to

distinguish between offering payment for the performance of a

specific task on the one hand, and on the other hand, demanding

- 5 - compliance on the basis of an established role within the overall

conspiracy. In other words, in his view, there must exist a

relationship of coercion or authority under which he can demand

compliance. This error, McKinney contends, extended the meaning

of "directed action" beyond its intended place within the concept

of a "chain of command."

Under §3B1.1(b) a defendant's offense level is increased

by three levels if "[i]f the defendant was a manager or supervisor

. . . and the criminal activity involved five or more participants

or was otherwise extensive." The plain language of the Guidelines

requires that a two-step process be employed when determining the

applicability of this enhancement: (1) scope-that criminal

activity involved five or more participants or was otherwise

extensive, (2) status- that the defendant was a manager or

supervisor (but not an organizer or leader). See United

States v. Voccola, 99 F.3d 37, 44 (1st Cir. 1996).

McKinney does not dispute that the criminal conspiracies

in which he participated involved more than five criminal actors,

therefore, the scope element is met.3 The crux of McKinney's

3 At the sentencing hearing, the district court stated:

I should first note that there's no dispute here that the conspiracy involved five or more participants or was otherwise extensive. I have already sentenced more than five individuals for their respective roles in the conspiracy and the sole issue is the - 6 - contention lies in the district court's finding that defendant was

a manager or supervisor within the illegal scheme.

"We review a district court's fact-bound determination

of a defendant′s role in the offense for clear error." Id. "The

determination of an individual's role in committing an offense is

necessarily fact-specific. Accordingly, appellate review must be

conducted with considerable deference." United States v. Soto-

Peguero, 978 F.3d 13, 23 (1st Cir. 2020), cert. denied, 141 S. Ct.

1430 (2021)(quoting United States v. Cruz, 120 F.3d 1, 3 (1st Cir.

1997)). A single instance of managing the actions of others can

substantiate the enhancement. See Voccola, 99 F.3d at 44.

Manager/Supervisor Role Enhancement

Although the guidelines do not define the term

"supervisor" or "manager," "we have held that '[e]vidence of the

defendant′s role in the conspiracy 'may be wholly circumstantial,'

and need only show that he exercised authority or control over

another participant on one occasion.'" United States v. Cortés-

Cabán, 691 F.3d 1, 28 (1st Cir. 2012) (quoting United States v.

Flores–de–Jesús, 569 F.3d 8, 34 (1st Cir. 2009)); see also

Cruz, 120 F.3d at 3 (noting that the analogous enhancement based

on "organizer, leader, manager, or supervisor" status in U.S.S.G.

§3B1.1(c) applies if "the defendant, in committing the offense,

defendant's actual role and whether he was a manager or a supervisor. - 7 - exercised control over, organized, or was otherwise responsible

for superintending the activities of, at least one of those other

persons").

With respect to exhibiting control as a manager or

supervisor, the defendant's conduct must satisfy two conditions.

First, "for the enhancement to apply, it is not enough to show

that 'the defendant merely controlled, organized, or managed

criminal activities; rather, he must instead control, organize, or

manage criminal actors.'" Cortés-Cabán, 691 F.3d at 29 (quoting

Flores–de–Jesús, 569 F.3d at 34); see United States v. García-

Sierra, 994 F.3d17, 37 (1st Cir. 2021)(quoting United States v.

Goldberg, 105 f.3d 770, 777 (1st Cir. 1997)) ("A supervisory or

managerial role is evidenced by some manifestation of authority on

the part of the defendant. The authority possessed by the

defendant may be fairly minimal; "defendant need not" be at the

top of a criminal scheme to be a "manager or supervisor.")

Second, our case law is clear —— contrary to McKinney's

assertions —— that a defendant need not possess a formal, coercive

and hierarchal relationship with a subordinate in order to qualify

for the enhancement. The key inquiry is whether the defendant

"exercised control over, managed, organized, or superintended the

activities" of another criminal actor." Ilarraza, 963 F.3d at 13;

see United States v. García-Sierra, 994 F.3d 17, 37 (1st Cir. 2021)

(For the enhancement to apply, the defendant needs only to

- 8 - "exercise[] some degree of authority or control" over another

actor). Likewise, that "minimal" authority, García-Sierra, 994

F.3d at 37, may be exercised on "one occasion," id. (quoting

United States v. Savarese, 686 F.3d 1, 20 (1st Cir. 2012)). This

is a relatively low bar, and the fact that control may be exhibited

on a single occasion reinforces the notion that a formal chain of

command is not necessary for the enhancement to apply. The record

must evince that, "in committing the offense, the defendant

exercised control over, managed, organized, or superintended the

activities of at least one other participant." Ilarraza, 963 F.3d

at 13 (quoting United States v. Al-Rikabi, 606 F.3d 11, 14 (1st

Cir. 2010)).

At sentencing, the district court based its finding that

the §3B1.1(b) enhancement applied to McKinney after addressing the

record evidence in a painstakingly detailed fashion. In terms of

recruitment of associates, nature and scope of McKinney′s illegal

activity, and authority over others, the district court described

the same as follows:

[T]he record reflects that the defendant did, in fact, recruit addicts to drive for him, to house him, and actually to buy firearms for the conspiracy. The right to a larger share of the proceeds is not a matter of record. His participation in planning or organization is not a matter of record.

The nature and scope of the illegal activity included a fairly extensive drug distribution and firearms conspiracy in central Maine.

- 9 - There were substantial amounts of heroin and crack cocaine that were distributed by virtue of the conspiracy.

Turning to the firearms conspiracy, at least 12 firearms were illegally obtained. As part of the conspiracy, the defendant himself was involved in both aspects of the conspiracy.

The defendant was involved for nearly one year. The defendant himself was a resident of Maine at the time and a former resident of Rochester, and he was a link between the Rochester and Maine communities. Turning to his authority over others. There's evidence that the defendant hired other individuals to drive for him extensively. In fact, one person mentions that he was the defendant's chauffeur and that he directed the gun sales.

The district court further specifically highlighted

instances in which McKinney exercised control over four

individuals who, under his direction, drove him while he engaged

in illicit activity. They also purchased or obtained firearms for

him, as well as sold drugs. The district court also pointed to

additional facts that, we conclude, adequately support its finding

that McKinney exhibited control over other criminal actors

sufficient to trigger the enhancement. See Ilarraza, 963 F.3d at

13. To begin, McKinney played an important role in recruiting

individuals for the conspiracy and compensating them in cash or

drugs. He instructed various individuals to drive him to precise

locations - multiple times per day - in order to complete illicit

drug transactions. Likewise, McKinney gave detailed instructions

to the straw purchasers of firearms, including which firearms to

- 10 - purchase and what to exactly write on disclosure forms. Taken

together, we think it indisputable that McKinney's role

constitutes enough management and coordination of others necessary

to trigger the enhancement. See Cortés-Cabán, 691 F.3d at 29. To

cinch the matter, McKinney sent some of the firearms obtained

through straw purchasers back to his superiors across state lines.

This fact underscores McKinney's own managerial role; it

demonstrates the extent to which he coordinated his subordinates

and their actions for the benefit of the conspiracies. See García-

Sierra, 994 F.3d at 37.

IV. Conclusion

In light of the overwhelming evidence meticulously

alluded to by the district court, we conclude that it did not err

in finding that McKinney exercised authority or control over

criminal actors and thus correctly applied the §3B1.1(b)

enhancement. Accordingly, the sentence and judgment of the

district court are AFFIRMED.

- 11 -