At page 1530 Defining supervisor under section 3B1.1(c) of guidelines42 citing cases“in order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given.”
- United States v. Jani, No. 23-1309 (10th Cir. Feb. 19, 2025).unpublished Indeed, the term “supervisor” is “satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him.” United States v. Lozano, 921 F.3d 942, 948 (10th Cir. 2019) (quoting United States…
- Cook v. United States, No. 1:20-cv-00369 (D.N.M. Aug. 18, 2023).A manager or supervisor “exercises some degree of decision-making authority, control, or organizational authority over a [single] subordinate participant in the offense.” United States v. Hunsaker, 65 F.4th 1223 , 1229 (10th Cir. 2023); se…
- United States v. Astorga, No. 21-2026 (10th Cir. Dec. 21, 2022).unpublishedA defendant qualifies as a “supervisor” when he has “exercised any degree of direction or control over someone subordinate to him.” Lozano, 921 F.3d at 948 (quoting United States v. Backas, 901 F.2d 1528, 1530 (10th 6 Appellate Case: 21-20…
- United States v. Pielsticker, 678 F. App'x 737 (10th Cir. 2017).unpublishedUnited States v. Backas, 901 F.2d 1528, 1530 (10th Cir. 1990).
- United States v. Zar (Derek), 790 F.3d 1036 (10th Cir. 2015).published(In order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given.)
- United States v. Williams, 468 F. App'x 899 (10th Cir. 2012).unpublishedUnited States v. Backas, 901 F.2d 1528, 1530 (10th Cir.1990).
- United States v. Ortiz, 463 F. App'x 798 (10th Cir. 2012).unpublishedA defendant need not be a drug kingpin to qualify as a supervisor for guidelines purposes; rather, he “ ‘needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is g…
- United States v. Ivory, 532 F.3d 1095 (10th Cir. 2008).published(defendant was a supervisor under USSG § 3Bl.l(c) because he supervised another person, a doorman, in a drug-distribution scheme)
- United States v. Velasquez, 197 F. App'x 788 (10th Cir. 2006).unpublishedUnder these circumstances, we find the district court sufficiently addressed its reasons for applying a two-level increase under § 3Bl.l(c), and its determination is reasonably supported by the record, as Mr. Velasquez clearly gave “some f…
- United States v. Blunt, 187 F. App'x 821 (10th Cir. 2006).unpublishedSection § 3Bl.l(c) is “satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme.” United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.1990).
Show 27 more citing cases
- United States v. Herrera, 166 F. App'x 309 (10th Cir. 2006).unpublishedWe have previously held that “section 3Bl.l(c) and the term ‘supervisor’ are satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme.” United State…
- United States v. Herrera, 118 F. App'x 448 (10th Cir. 2004).unpublishedWe have previously held that “section 3Bl.l(e) and the term ‘supervisor’ are satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme.” United State…
- United States v. Garcia, 24 F. App'x 872 (10th Cir. 2001).unpublishedWe have held that a defendant may be found to be a “leader” under Section 3Bl.l(c) based “upon a mere showing ‘that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme.’ ” B…
- United States v. Hayes, 10 F. App'x 686 (10th Cir. 2001).unpublishedThus, “ ‘the gravamen of this enhancement is control, organization, and responsibility for the actions of other individuals.’ ” Albers, 93 F.3d at 1488 (quoting United States v. Torres, 53 F.3d 1129, 1142 (10th Cir.1995)). “[T]o be a super…
- United States v. Kiister, No. 99-3041 (10th Cir. Feb. 29, 2000).unpublishedWe have held that “to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given,” United States v. Backas , 901 F.2d 1528, 1530 (10th Cir…
- United States v. Jarvis, 166 F.3d 349 (10th Cir. 1998).unpublished"However, a challenge to the conclusion reached that one is a supervisor as defined in the guidelines is primarily legal and the trial court's determination on it is reviewed under a de novo standard." United States v. Brown, 995 F.2d 1493…
- United States v. Alexander, 141 F.3d 1186 (10th Cir. 1998).unpublishedUnder U.S.S.G. § 3.B1.1(c), a sentencing court may increase a base offense by two levels if the defendant was an "organizer, leader, manager, or supervisor in any criminal activity." We have ruled that "[i]n order to be a supervisor, one n…
- United States v. Vega, No. 97-6022 (10th Cir. Mar. 13, 1998).unpublishedA court may enhance a sentence under section 3B1.1(c) “upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme.” United States v. Backas, 901 F.2d 1528, 1530…
- United States v. Alfredo Vega, 141 F.3d 1186 (10th Cir. 1998).publishedA court may enhance a sentence under section 3B1.1(c) "upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme." United States v. Backas, 901 F.2d 1528, 1530…
- United States v. Samuel Anthony Cardenas, 131 F.3d 152 (10th Cir. 1997).published "In order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given." United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.1990).
- United States v. Cardenas, No. 97-8012 (10th Cir. Dec. 9, 1997).unpublished “In order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given.” United States v. Backas, 901 F.2d 1528, 1530 (10th Cir. 1990).
- United States v. Gale F. Burch, 113 F.3d 1247 (10th Cir. 1997).publishedA. Role in the Offense 25 Ms. Burch argues that the district court erred in applying a two-level upward adjustment to her offense level under U.S.S.G. § 3B1.1(c) for her role as "an organizer, leader, manager, or supervisor in [the] crimin…
- United States v. Burch, No. 96-3290 (10th Cir. May 22, 1997).unpublishedA. Role in the Offense Ms. Burch argues that the district court erred in applying a two-level upward adjustment to her offense level under U.S.S.G. § 3B1.1(c) for her role as “an organizer, leader, manager, or supervisor in [the] criminal…
- United States v. Johnny \Buddy\" Tynes", 83 F.3d 434 (10th Cir. 1996).published"We have held that section 3B1.1(c) is satisfied upon a mere showing 'that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme.' " United States v. Baez-Acuna, 54 F.3d 634,…
- United States v. Gregory Hudson, United States of Am. v. Michael Wayne Woods, 72 F.3d 139 (10th Cir. 1995).publishedSection 3B1.1(c)'s leadership requirement is satisfied upon a showing "that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme." United States v. Baez-Acuna, 54 F.3d 634, 6…
- United States v. David Lynn Johnson, 56 F.3d 78 (10th Cir. 1995).publishedWe have previously stated that "[k]ey determinants of the applicability of 3B1.1 are control or organization: the defendant must have exercised some degree of control over others involved in the commission of the offense or he must have be…
- United States v. Ibrahim Baez-Acuna, 54 F.3d 634 (10th Cir. 1995).publishedWhen reviewing sentencing decisions pursuant to U.S.S.G. § 3B1.1(c), we review legal conclusions under a de novo standard, United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, 498 U.S. 870 , 111 S.Ct. 190 , 112 L.Ed.2d 1…
- United States v. Manuel Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994).published“In order to be a supervisor in the criminal activity, ‘one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity.’ ” United States v. Hanif, 1 F.3d 998, 1004 (10th Cir.) (quoting United…
- United States v. Alphonso Pedraza, United States of Am. v. Peter Brent Irelan, United States of Am. v. Enrique Pedraza, 27 F.3d 1515 (10th Cir. 1994).publishedTo qualify as a supervisor, “one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity.” Id. (quoting United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, 498 U.S. 870…
- United States v. Michael Mandilakis, 23 F.3d 278 (1994).published“In order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity_” United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, 498 U.S. 870 , 111 S.Ct.…
- United States v. Selma Juarez, 1 F.3d 1250 (10th Cir. 1993).publishedIn United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, 498 U.S. 870 (1990), we held that the "Section 3B1.1(c) and the term 'supervisor' are satisfied upon a showing that the defendant exercised any degree of direction…
- United States v. Murlynn D. Ott, 982 F.2d 530 (10th Cir. 1992).publishedMorgan, 936 F.2d at 1574 (citing United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 190 (1990)). 5 In the present case, the evidence is sufficient to show that Ott was a supervisor.
- United States v. Rodrigo Rodriguez, 968 F.2d 22 (10th Cir. 1992).publishedWe held in United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 190 (1990), that "Section 3B1.1(c) and the term 'supervisor' are satisfied upon a showing that the defendant exercised any degree o…
- United States v. Robert E. Davis, 965 F.2d 804 (10th Cir. 1992).publishedUnited States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 190 , 112 L.Ed.2d 152 (1990).
- United States v. Abdelkader Helmy, United States of Am. v. James E. Huffman, 951 F.2d 988 (9th Cir. 1992).publishedSee United States v. Bierley, 922 F.2d 1061, 1065 (3rd Cir.1990); United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 190 , 112 L.Ed.2d 152 (1990); United States v. Gordon, 895 F.2d 932, 935 (4th Cir…
- United States v. Nelson, 941 F.2d 1213 (10th Cir. 1991).publishedUnited States v. Backas, 901 F.2d 1528, 1530 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 190 (1990).
- United States v. Jose Guzman, 931 F.2d 63 (10th Cir. 1991).unpublishedIn United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.) cert. denied, 111 S.Ct. 190 (1990), we also held that "section 3B1.1(c) and the term 'supervisor' are satisfied upon a showing that the defendant exercised any degree of direction…
At page 1529 cited at this page11 citing cases
- United States v. James Bey, Jr., 384 F. App'x 486 (6th Cir. 2010).unpublishedUnder § 3Bl.l(a), a defendant’s base offense level must be in *496 creased by four points “[i]f [he] was an organizer or leader of a criminal activity that involved five or more participants.” For such an enhancement to be proper, “[t]he p…
- United States v. Uscanga-Mora, 562 F.3d 1289 (10th Cir. 2009).publishedSee, e.g., United States v. Moore, 919 F.2d 1471, 1477 (10th Cir.1990) (finding enhancement warranted where defendant exercised control over the doorman to the house from which he sold drugs); United States v. Back as, 901 F.2d 1528, 1529-…
- United States v. Hays, No. 97-6048 (10th Cir. July 30, 1997).unpublishedLEADERSHIP ROLE ENHANCEMENT Section 3B1.1 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 part…
- United States v. Garry Wayne Hays, 120 F.3d 271 (10th Cir. 1997).publishedLEADERSHIP ROLE ENHANCEMENT 6 Section 3B1.1 provides, 7 Based on the defendant's role in the offense, increase the offense level as follows: 8 (a) If the defendant was an organizer or leader of a criminal activity that involved five or mor…
- United States v. James David Thornbrugh, 52 F.3d 339 (10th Cir. 1995).publishedUnited States v. Backas, 901 F.2d 1528, 1529 (10th Cir.), cert. denied, 498 U.S. 870 (1990).
- United States v. Mohammad Hanif, Also Known as Mohammad Noor, 1 F.3d 998 (10th Cir. 1993).publishedUnited States v. Brown, 995 F.2d 1493, 1500 (10th Cir.1993) (citing United States v. Backas, 901 F.2d 1528, 1529 (10th Cir.), cert. denied, 498 U.S. 870 , 111 S.Ct. 190 , 112 L.Ed.2d 152 (1991)).
- United States v. Jermaine Brown, 995 F.2d 1493 (10th Cir. 1993).published This adjustment does not apply to a defendant who merely suggests committing the offense. *1501 In United States v. Backas, 901 F.2d 1528, 1529 (10th Cir.), cert. denied, 498 U.S. 870 , 111 S.Ct. 190 , 112 L.Ed.2d 152 (1991), we noted that…
- United States v. Thomas Steven Guadalupe, 979 F.2d 790 (10th Cir. 1992).publishedUnited States v. Backas, 901 F.2d 1528, 1529 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 190 , 112 L.Ed.2d 152 (1990).
- United States v. Rogers, 960 F.2d 1501 (10th Cir. 1992).publishedUnited States v. Backas, 901 F.2d 1528, 1529 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 190 , 112 L.Ed.2d 152 (1990).
- United States v. Rodney Lee Morgan, 936 F.2d 1561 (10th Cir. 1991).published See id.; United States v. Backas, 901 F.2d 1528, 1529 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 190 , 112 L.Ed.2d 152 (1990). 1.
Show 1 more citing case
- United States v. Sergio Gonzales, A/K/A Sergio Gonzalez, 929 F.2d 213 (6th Cir. 1991).publishedUnited States v. Backas, 901 F.2d 1528, 1529-30 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 190 , 112 L.Ed.2d 152 (1990).
v.
Ken Roy BACKAS A/K/A James Smith, Defendant-Appellant
This appeal challenges only the sentence imposed after a plea of guilty to drug distribution charges. After evidentiary hearing, the court concluded that defendant was at “least a supervisor or a manager” and imposed a corresponding enhancement factor pursuant to United States Sentencing Commission, Guidelines Manual, § 3Bl.l(c) (Nov.1989) (“Guide lines”). Record, vol. 3, at 27. Defendant makes a three-fold attack on the application of section 3Bl.l(c) in determining his sentence.
Defendant first challenges the sufficiency of the evidence. Because that issue is primarily factual, we apply a clearly erroneous standard. See 18 U.S.C. § 3742(e) (1988); United States v. Roberts, 898 F.2d 1465, 1468 (10th Cir.1990). After a careful review of the record, we conclude that the evidence, to which no objection was made, was sufficient to establish the following: (1) that defendant regularly sold drugs from a particular house, (2) that another person named Johnson was in effect defendant’s doorman who let customers in and screened them, and (3) that Mr. Johnson was paid for his activities. Thus, the court could have concluded by a preponderance of the evidence that defendant had power of direction or supervision over Mr. Johnson. Accordingly, we conclude that the trial court was not clearly errone[*1530] ous in its finding by preponderance of evidence that defendant was a “supervisor.”
Defendant’s second challenge is to the conclusion that his activities legally qualify him as a supervisor as defined in the Guidelines. Because this issue is primarily legal, we review the district court under a de novo standard. See Roberts, 898 F.2d at 1468-69; Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir.1986). We hold that the trial court correctly applied section 3Bl.l(c). That subsection provides: “(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b) [applicable to criminal activities involving five or more participants], increase by two levels.” Properly applied, we conclude that section 3Bl.l(c) and the term “supervisor” are satisfied upon a showing that the defendant exercised any degree of direction or control over someone subordinate to him in the distribution scheme. Although Mr. Johnson’s role as a doorman was trivial, it nevertheless satisfied the requirements for defining the defendant as his “supervisor.” Section 3Bl.l(c) was designed to add additional points for levels of supervision lower than top and middle managers, which are referred to in the Guidelines as “organizers,” “leaders,” and “managers.” See generally Guidelines, § 3B1.1. Extra points for higher level managers are provided for in subsections (a) and (b). See id. § 3B1.1 (a) and (b). In order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given. We note, however, that the court’s inclusion of the customers along with Mr. Johnson as possible supervised persons is erroneous. Nevertheless, the sentence can stand based on defendant’s supervision of Mr. Johnson. We conclude that the court’s inclusion of the customers was harmless.
Finally, defendant argues that the language of section 3Bl.l(c) is unconstitutionally vague. A standard is only unconstitutionally vague if it is not “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); see also Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971); United States v. Roberts, 898 F.2d 1465, 1467-68 (10th Cir.1990). Thus, a standard fails if people of common intelligence must necessarily guess at its meaning. See Connally, 269 U.S. at 391, 46 S.Ct. at 127. We conclude that terms such as organizer, leader, manager, or supervisor are terms that have well-accepted, ordinary meanings and that the court’s application of those terms to the facts of this case was within the scope of their ordinary meanings. We find no vagueness in the terms that renders them violative of defendant's due process rights.
We reject all of defendant’s challenges to his sentence, and we AFFIRM the judgment and sentence of the trial court.