Split Noted: Is Control Necessary for USSG 3B1.1?

Per United States v. Samolja (7th Cir. Jan. 25, 2013)

I rarely blog about unpublished cases, but two recent ones have caught my eye.  For other reasons, I cannot blog about one, out of the Fourth Circuit.

Here, however, the Seventh Circuit notes in passing (p.5 n.1) an intra-circuit split regarding whether   a defendant must control others in order to be eligible for an enhancement under U.S.S.G. 3B1.1.  Researching the split revealed that most circuits do require some degree of control, whereas the the CA10, and certain cases of the CA7, do not.

The majority is right.  Here is the relevant statutory text and commentary:

__(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.

4. 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.

By definition, managers, supervisors, and leaders all exercise control.  While the definition of organizer could be broader, in theory, the statutory scheme confirms that it is not.

First,Organizers are equivalent to leaders, who must exercise control.  Second, control is inherent to management and supervision, which are deemed to be lesser included forms of organization.  Third, most tellingly, the commentary requires some "degree of control" for any form of organizing, leading, managing, and supervising.  Finally, if there is any degree of ambiguity remaining after reading the text and the canons, the rule of lenity would also favor a control requirement (circuits seem to uniformly apply lenity to the guidelines, though there is some question whether this application is appropriate).