Posner Refuses to Split Hairs for Druggie

     CHICAGO (CN) – Exploring the nuances of sentencing for narcotics crimes, 7th Circuit Judge Richard Posner refused to be drawn into hair-splitting about what a “supervisor” is.



     Antonio Figueroa, a member of a Chicago-area drug ring, appealed a two-level sentencing enhancement he was given for having a “manager” or “supervisor” role. Figueroa’s attorney challenged the enhancement, claiming his client was more of a “messenger” or a “conduit.” The sentencing judge and the 7th Circuit disagreed.
     According to the court, Figueroa oversaw a man named Cruz who transported heroin from Texas to Chicago. Figueroa communicated with Cruz, relaying instructions from a boss named Primo.
     Cruz was arrested with 37 kg of heroin, with a wholesale value of up to $2.5 million, and agreed to cooperate with police to bring in Figueroa. Despite the large quantities of drugs, police were able to confirm only four participants in the enterprise.
     Figueroa’s appeal met with no sympathy from the 7th Circuit, which noted that a three-level enhancement would have been appropriate because of the “extensive” nature of the drug conspiracy.
     Posner’s opinion noted a circuit split surrounding how courts identify who receives an enhancement for being “an organizer, leader, manager, or supervisor of criminal activity.”
     The relevant Application Note identifies seven factors, “decision making authority, … nature of participation …, recruitment …, claimed right to a larger share …, planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others,” but concerns only the meaning of the terms “organizer” and “leader.”
     The long and convoluted nature of the guidelines has led to confusion, Posner wrote.
     “Economy of words is not a defining characteristic of lawyer, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a ‘supervisor.'”
     Some circuits, including the 6th, 8th and 10th, apply the same factors when identifying supervisors and managers. The 1st Circuit has rejected the approach. The 7th Circuit considers the seven factors to be helpful but not controlling.
     The dispute, Posner decided, is ultimately unnecessary.
     “If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a ‘manager’ or ‘supervisor’ is, Application Note 4 isn’t going to help him. … So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for ‘supervisor,’ such as one who ‘oversees,’ or unhelpful paraphrases such as ‘to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish’ some objective.”
     The title or nuances of an individual’s involvement are irrelevant, Posner concluded, so long as he exhibits the general qualities of a supervisor.
     “Cruz was the ‘mule’; the defendant was the mule skinner. We don’t 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’ve done it. That was the defendant’s job.”

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