District Court Error in Applying "Manager or Supervisor" Enhancement Under §3Bl.l(b)
In United States v. Hunsaker, No. 22-7016 (10th Cir. Apr. 18, 2023), the Tenth Circuit Court of Appeals overturned a district court's ruling to enhance defendant’s sentence under United States Sentencing Guidelines (U.S.S.G.) § 3B1.1(b), which allows for sentence enhancements based on a defendant's role in a crime.
The indictment issued from the Eastern District of Oklahoma implicated Hunsaker and 18 others in a 23-count indictment. Hunsaker was charged in two counts, including conspiracy to traffic 500 grams or more of methamphetamine and possession with intent to distribute 50 grams or more of methamphetamine, both violations of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). Hunsaker pleaded guilty to both counts without any plea agreement.
The Presentence Investigation Report (PSR) identified Hunsaker as the "second in command" of the drug trafficking organization and described him as a "manager or supervisor." The PSR then suggested a 3-level enhancement to Hunsaker's offense level under U.S.S.G. § 3B1.1(b), a provision that permits enhanced sentencing based on the defendant's role in the offense.
Section 3B1.1 of the Sentencing Guidelines allows a district court to enhance a defendant's sentence for his aggravating role in the underlying offense. U.S.S.G. § 3B1.1. The court is to determine a defendant's role in the offense on the basis of all "relevant conduct," rather than on the basis of elements and acts cited in the counts of conviction alone. Id. § 3B1.1 intro. cmt. The commentary to § 3B1.1 says that to qualify for an adjustment under this section, "the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants" in the underlying offense. Id. § 3B1.1 cmt. n.2. The commentary lists factors, accurately identified by the district court in this case, relevant to our determination of whether a defendant is a "manager or supervisor" under subsection (b): Factors the court should consider include  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 offense,  the nature and scope of the illegal activity, and  the degree of control and authority exercised over others. United States v. Hunsaker
The district court agreed with the PSR’s findings and applied the role enhancement, resulting in a total offense level of 34 and a criminal history category of II. This led to an advisory guideline range of 168 to 210 months. Hunsaker was sentenced to 168 months' imprisonment.
Given the foregoing precedents, we have no choice but to conclude on the record before us that the district court erred when it enhanced Defendant's offense level by three levels pursuant to U.S.S.G. § 3B1.1(b). We accept the undisputed facts as stated in the PSR and the Government's supplement thereto. These facts, however, simply do not establish that Defendant was a "manager or supervisor" of the DTO within the meaning of § 3B1.1(b). We can locate little, if any, evidence in the record to suggest Defendant managed or supervised "one or more other participants" in the DTO. Id. § 3B1.1 cmt. n.2. But such evidence is what our precedents plainly require before a district court may hold a defendant is a "manager or supervisor" of a criminal conspiracy pursuant to § 3B1.1(b). E.g., Zar, 790 F.3d at 1058; Roberts, 14 F.3d at 523.
United States v. Hunsaker, No. 22-7016, at *12 (10th Cir. Apr. 18, 2023).
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