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United States v. French

United States District Court, D. Maine

April 20, 2016

UNITED STATE OF AMERICA,
v.
MALCOLM A. FRENCH, et al.

FINAL SENTENCING ORDER

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

The Court resolves the remaining sentencing guideline issues in favor of the Government, concluding that two of the Defendants are subject to aggravating role enhancements under United States Sentencing Guideline (U.S.S.G.) § 3B1.1, that neither of these Defendants is entitled to safety valve treatment under U.S.S.G. § 5C1.2, that a third Defendant is not entitled to a downward departure under U.S.S.G. § 5H1.6 for family ties and responsibilities, that a Defendant is not entitled to a downward departure under U.S.S.G. § 5H1.3 for his mental conditions and U.S.S.G. § 5H1.4 for his physical conditions, and that a Defendant is not entitled to a downward departure for public service under U.S.S.G. § 5H1.11.

I. BACKGROUND

A. Procedural History

On January 24, 2014, a federal jury found Malcolm French, Rodney Russell, and Kendall Chase guilty of several federal crimes involving a conspiracy to manufacture and a conspiracy to distribute marijuana. Jury Verdict Form (ECF No. 311); Superseding Indictment (ECF No. 187). The Probation Office (PO) prepared and revised a Presentence Investigation Report (PSR) on each Defendant. French PSR; Russell PSR; Chase PSR.

On June 2, 2015, the Government filed a sentencing memorandum addressing a number of potential sentencing issues. Gov’t’s Consolidated Mem. in Aid of Sentencing (ECF No. 519) (Gov’t’s Mem.). Each Defendant responded to the Government’s memorandum and raised some new issues. On July 30, 2015, July 31, 2015, and August 6, 2015, Mr. French, Mr. Chase and Mr. Russell filed responsive memoranda. Def. Malcolm French’s Mem. in Aid of Sentencing (ECF No. 551) (French Mem.); Def.’s Corrected Mem. in Aid of Sentencing (ECF No. 553) (Chase Mem.); Def. Rodney Russell’s Sentencing Mem. (ECF No. 562) (Russell Mem.). On August 12, 2015, the Government filed a reply memorandum. Gov’t’s Consolidated Reply Mem. in Aid of Sentencing (ECF No. 571) (Gov’t’s Reply).[1]

On February 3, 2016, Malcolm French filed another sentencing memorandum. Def. Malcolm French’s Suppl. Sentencing Mem. (ECF No. 608) (French Suppl. Mem.). On February 5, 2016, the Government filed another sentencing memorandum. Gov’t’s Mem. in Aid of Sentencing (ECF No. 612) (Gov’t’s Suppl. Mem.). On March 18, 2016, Mr. French filed a second supplementary memorandum addressing a number of issues, including his entitlement to a safety valve reduction. Def. Malcolm French’s Second Suppl. Sentencing Mem. at 11-12 (ECF No. 635) (French’s Second Suppl. Mem.). On March 28, 2016, Mr. Russell filed a supplementary memorandum on the safety valve. Def. Rodney Russell’s Resp. to Def. French’s Mem. at Doc. 635-Safety Valve (ECF No. 642) (Russell Suppl. Mem.). On March 30, 2016, the Government filed a final memorandum. Gov’t’s Mem. in Aid of Sentencing (ECF No. 644) (Gov’t’s Final Mem.).

In anticipation of the April 21, 2016 sentencing hearing, the Court issued a number of sentencing orders. Sentencing Order on Drug Quantity (ECF No. 647); Sentencing Order on Firearms Enhancement (ECF No. 648); Sentencing Order on Obstruction of Justice Enhancement (ECF No. 652) (Obstruction Order). This final order addresses all remaining guideline sentencing issues. The Court will discuss the sentencing analysis under 18 U.S.C. § 3553(a) at the hearing, including the parties’ arguments about marijuana as a Schedule I drug.

B. Remaining Guidelines Issues

The parties submitted memoranda concerning the following remaining guideline issues:

(1) Whether Malcolm French and Rodney Russell had aggravating roles in the commission of these offenses pursuant to U.S.S.G. § 3B1.1;
(2) Whether Malcolm French or Rodney Russell are entitled to a safety valve reduction under U.S.S.G. § 5C1.2(a)(1);
(3) Whether Kendall Chase is entitled to a downward departure under U.S.S.G. § 5H1.6 for family ties and responsibilities;
(4) Whether Rodney Russell is entitled to a downward departure under U.S.S.G. § 5H1.3 for his mental conditions and § 5H1.4 for his physical conditions; and
(5) Whether Rodney Russell is entitled to a downward departure for public service under U.S.S.G. § 5H1.11.

II. THE AGGRAVATING ROLE ENHANCEMENT: MALCOLM FRENCH

AND RODNEY RUSSELL-U.S.S.G. § 3B1.1

A. The Enhancement

Section 3B1.1 of the guidelines provides:

Based on the defendant’s role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

U.S. Sentencing Guidelines Manual § 3B1.1 (U.S. Sentencing Comm’n 2015) [hereinafter U.S.S.G.]. Comment Four to U.S.S.G. § 3B1.1 states:

In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as “kingpin” or “boss” are not controlling. 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. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.

Id. cmt. n.4.

1. Four-Level Enhancement under § 3B1.1(a)

In United States v. Arbour, 559 F.3d 50 (1st Cir. 2009), the First Circuit observed that “[i]n order to invoke § 3B1.1(a), a district court must make a finding as to scope-that the criminal activity involved five or more participants or was otherwise extensive-and a finding as to status-that the defendant acted as an organizer and leader of the criminal activity.” Id. at 53 (footnote and citation omitted).

Here, neither Mr. French nor Mr. Russell contested the contention that the conspiracy involved five or more participants or was otherwise extensive. The participants included: (1) Malcolm French, (2) Scott MacPherson, (3) Kendall Chase, (4) Rodney Russell, (5) Moises Soto, (6) Miguel Roblero, (7) Abner Perez Morales, (8) Martin Roblero, (9) as many as five unidentified migrant laborers, [2] (10) Robert Berg, and (11) Fai Littman. The “scope” part of the § 3B1.1 determination has been clearly met.

The First Circuit has illuminated the status part of the analysis. Arbour, 559 F.3d at 55-57. To qualify for an enhancement under U.S.S.G. § 3B1.1(a), the defendant must have “either organized or led the criminal activity.” Id. at 55. Reviewing the factors set forth in Comment Four in the guidelines, the Arbour Court noted that “[t]here need not be proof of each and every factor before a defendant can be termed an organizer or leader.” Id. (quoting United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995)). “[T]he term leader implies the exercise of some degree of dominance or power in a hierarchy, and also implies the authority to ensure that other persons will heed commands.” Id. (quoting Tejada-Beltran, 50 F.3d at 111). “One may be classified as an organizer, though perhaps not as a leader, if he coordinates others so as to facilitate the commission of criminal activity.” Id. (quoting Tejada-Beltran, 50 F.3d at 111). In Arbour, the First Circuit clarified that in order to be a leader or organizer, the defendant does not need to have led or organized at least five other participants; the defendant “needs only to have led or organized one criminal participant, besides himself of course . . . .” Id. at 56 (emphasis in original) (citing U.S.S.G. § 3B1.1 cmt. n.2).

2. Three-Level Enhancement under § 3B1.1(b)

In United States v. Acosta-Colon, 741 F.3d 179 (1st Cir. 2013), the First Circuit wrote that § 3B1.1(b) analysis “proceeds in a sequence of two steps”: first, “the sentencing judge must find that the underlying offense involved five or more persons (including the defendant) or was otherwise extensive”; second, “the judge must find that the defendant managed or supervised one or more of the other participants in that activity.” Id. at 205 (internal quotation marks and citations omitted). The Court has already taken the first step by establishing that this conspiracy indisputably involved five or more persons. Regarding the second step, the First Circuit has explained that “[a] defendant manages or supervises a person if he exercises control ...


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