United States v. Scot Phillip Bauer, 995 F.2d 182 (10th Cir. 1993). · Go Syfert
United States v. Scot Phillip Bauer, 995 F.2d 182 (10th Cir. 1993). Cases Citing This Book View Copy Cite
26 citation events (10 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Gallant (ca10, 2008-08-20)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Gallant (2×)
10th Cir. · 2008 · confidence medium
United States v. Bauer, 995 F.2d 182, 183-84 (10th Cir. 1993); see also U.S.S.G. § 3B1.1 cmt. 2 ("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.").
discussed Cited as authority (rule) United States v. Chisum
10th Cir. · 2007 · confidence medium
Although § 3Bl.l(c) does not include the word ‘participant’ as subsections (a) and (b) do, the terms ‘organizer,’ ‘leader,’ ‘manager,’ and ‘supervisor’ used in subsection (c) suggest the presence of participants other than the defendant who were the defendant’s underlings or subordinates.” United States v. Bauer, 995 F.2d 182, 183-84 (10th Cir.1993) (citations omitted).
cited Cited as authority (rule) United States v. Arciga
10th Cir. · 2004 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir. 1993).
cited Cited as authority (rule) United States v. Martinez
10th Cir. · 2004 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).
cited Cited as authority (rule) United States v. Price
10th Cir. · 1998 · confidence medium
United States v. Bauer, 995 F.2d 182, 182 (10th Cir. 1993).
cited Cited as authority (rule) United States v. Ward Laray Price, United States of America v. Mark Joel Anthony
10th Cir. · 1998 · confidence medium
United States v. Bauer, 995 F.2d 182, 182 (10th Cir.1993).
discussed Cited as authority (rule) United States v. Valdez-Arieta
10th Cir. · 1997 · confidence medium
See United States v. Litchfield, 959 F.2d 1514, 1523 (10th Cir. 1992) (finding no organization or control); United States v. Smith, 951 F.2d 1164, 1170 (10th Cir.1991) (finding no organization or control); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990) (stating that § 3Bl.l(a) suggests the presence of underlings or subordinates, but then stating unequivocally that an enhancement can be predicated on either the organization or control of others and upholding an enhancement upon finding that the defendant exercised both organization and control over an extensive criminal enterprise)…
discussed Cited as authority (rule) United States v. Sanders
10th Cir. · 1996 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993). 14 Applying these standards, we affirm substantially for the reasons set forth in the district court's Order of January 30, 1996. 15 AFFIRMED. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.
cited Cited as authority (rule) United States v. Charles Michael Kissick
10th Cir. · 1995 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).
cited Cited as authority (rule) United States v. Douglas Miles Decker
10th Cir. · 1995 · confidence medium
United States v. McAlpine, 82 F.3d 484, 487-88 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 610 , 130 L.Ed.2d 520 (1994); United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).
discussed Cited as authority (rule) United States v. Larry A. Cook
10th Cir. · 1995 · confidence medium
We review the court’s interpretation and application of the sentence ing guidelines de novo, United States v. McAlpine, 32 F.3d 484, 487-88 (10th Cir.), cert. denied, — U.S. —, 115 S.Ct. 610 , 130 L.Ed.2d 520 (1994), and the court’s factual findings for clear error, United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).
discussed Cited as authority (rule) United States v. David Thompson Laurance (2×)
10th Cir. · 1994 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993). 6 USSG 3B1.1(c) states: "If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than that described in (a) or (b), increase by two levels." This court has held that a defendant must supervise criminally culpable participants in order for his or her sentence to be enhanced pursuant to USSG 3B1.1(c).
discussed Cited as authority (rule) United States v. Ernesto Chapa
10th Cir. · 1994 · confidence medium
A search revealed nine ounces of cocaine in the baby's bag and a loaded handgun in Ms. Hebensperger's purse next to the baby's bag. 4 We review the district court's factual findings for clear error, giving due deference to its application of the sentencing guidelines to the facts. 18 U.S.C. 3742(e); United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993). 5 The sentencing guideline for Mr. Chapa's offense of conviction is USSG 2D1.1.
discussed Cited as authority (rule) United States v. Gross
5th Cir. · 1994 · confidence medium
United States v. Veilleux, 949 F.2d 522, 524 (1st Cir.1991) (holding that to apply § 3B1.1, court must find that there were at least two participants involved in committing the crime); United States v. Katora, 981 F.2d 1398, 1403 (3d Cir.1992) (requiring the participation of multiple, criminally culpable persons under § 3B1.1); United States v. Carroll, 893 F.2d 1502, 1507-09 (6th Cir.1990) (same); United States v. Anderson, 942 F.2d 606, 614-16 (9th Cir.1991) (en banc) (same); United States v. DeCicco, 899 F.2d 1531, 1535-37 (7th Cir.1990) (holding that § 3B1.1 applies only under circumsta…
cited Cited as authority (rule) United States v. Lloyd Michael Reid
10th Cir. · 1994 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).
cited Cited as authority (rule) United States v. Raul Alberto Martinez
10th Cir. · 1993 · confidence medium
United States v. Bauer, 995 F.2d 182, 183 (10th Cir.1993).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Scot Phillip BAUER, Defendant-Appellant
92-1101.
Court of Appeals for the Tenth Circuit.
Jun 9, 1993.
995 F.2d 182
1993 U.S. App. LEXIS 13425
1993 WL 191854
Richard A. Westfall (Thomas P. Johnson, with him on the briefs), of Davis, Graham & Stubbs, Denver, CO, for defendant-appellant., James R. Alison (Michael J. Norton, U.S. Atty., with him on the brief), Asst. U.S. Atty., Denver, CO, for plaintiff-appellee.
Seymour, Barrett, Tacha.
Cited by 18 opinions  |  Published
TACHA, Circuit Judge.

Mr. Bauer appeals a district court order sentencing him to 121 months imprisonment and three years supervised release. Bauer was tried by a jury and convicted on two counts of using interstate commerce facilities with intent that a murder be committed for hire in violation of 18 U.S.C. § 1958. On appeal, he argues that the district court erred in (1) declining to depart downward from the guidelines and (2) adjusting his offense level upward because of his role in the offense. We decline to address the first argument because we lack jurisdiction under 18 U.S.C. § 3742. We exercise jurisdiction over the second argument under 3742 and affirm.

I.

Bauer requested a downward departure from the guidelines, arguing that his conduct constituted a single act of aberrant behavior. We have recognized that a single act of aberrant behavior may justify discretionary de[*183] parture from the applicable guideline range because it is the . kind of mitigating circumstance that the Sentencing Commission did not adequately consider in formulating the guidelines. See United States v. Pena, 930 F.2d ,1486, 1494-95 (10th Cir.1991). Unlike Pena, however, where we affirmed the district court’s decision to depart, Bauer challenges the district court’s decision not to depart. In particular, Bauer argues that the district court misapplied the guidelines in holding that Bauer’s conduct did not constitute a single act of aberrant behavior.

? is well established in this circuit that an appellate court generally does not have jurisdiction under § 3742 to review a district court’s discretionary refusal to depart downward from the guidelines. United States v. McHenry, 968 F.2d 1047, 1048 (10th Cir.1992) (citations omitted). Bauer does not overcome this jurisdictional defect by casting the discretionary departure-related decision as a misapplication of the guidelines cognizable under 18 U.S.C. § 3742(a)(2). See McHenry, 968 F.2d at 1048. The refusal to depart downward would be cognizable as a misapplication of the guidelines only if the district judge had failed to depart because he erroneously believed that the guidelines did not authorize him to do so. See United States v. Soto, 918 F.2d 882, 883-84 (10th Cir.1990). Here the district judge stated:

While I recognize that each of the articulated grounds for departure may justify a discretionary departure from the tentative guideline range in appropriate circumstances, I do not believe that the circumstances here merit a departure. In the first place, I do not think defendant’s crime can be regarded as a “single” act of aberrant behavior. It was the product of detailed planning which spanned a period of over one month_ [Defendant recruited accomplices and organized their activities. Defendant’s conduct reflects repeated, carefully-orchestrated acts, not ‘a spontaneous and seemingly thoughtless act ... for .which defendant may be arguably less accountable.’

Because the district judge clearly knew that he was authorized to depart but declined to exercise his discretion to do so, we do not have jurisdiction to review his decision.

II.

Bauer next contends that the district court erroneously increased his offense level for his role in the offense pursuant to § 3B1.1(c) of the United States Sentencing Guidelines, Guidelines Manual (Nov.1992) (“U.S.S.G.”). Section 3B1.1(c) provides that “[i]f 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.S.G. § 3B1.1(c). We review the district court’s factual findings for clear error and its interpretation of the guidelines de novo. United States v. Pinedo-Montoya, 966 F.2d 591, 595 (10th Cir.1992). The application of the guidelines to the facts is entitled to due deference. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.), cert. denied, 498 U.S. 829, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990).

Bauer argues that the district court erroneously considered evidence regarding his organizational control over Lavon Ritter, who was a government informant and therefore a nonparticipant for purposes of § 3B1.1. The guidelines define a participant as “a person who is criminally responsible for the commission of the offense, but need not have been convicted. A person who is not criminally responsible for the commission of the offense {e.g., an undercover law enforcement officer) is not a. participant.” U.S.S.G. § 3B1.1, comment, (n. 1). The district court acknowledged that Ritter was not a participant as defined by the guidelines but, in distinguishing the different aggravating roles defined under § 3B1.1, concluded that § 3B1.1(c) “does not require anybody’s participation as a participant so it is not relevant whether Mr. Ritter is counted as a participant in this offense.”

The district court’s interpretation of § 3B 1.1(c) was erroneous. All of the roles defined by § 3B1.1 require the involvement of more than one participant. See United States v. Moore, 919 F.2d 1471, 1477 n. 4 (10th Cir.1990), United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990), cert. denied, 498 U.S. 1097, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); U.S.S.G. Ch. 3, Pt. B, intro.[*184] comment. Although § 3Bl.l(c) does not include the word “participant” as subsections (a) and (b) do, the terms “organizer,” “leader,” “manager,” and “supervisor” used in subsection (e) suggest the presence of participants other than the defendant who were the defendant’s underlings or subordinates. See Reid, 911 F.2d at 1464.

We conclude, nevertheless, that the district court’s error was harmless because the court made factual findings regarding the participation of Richard Elliott. Bauer does not deny that Elliott was a participant as defined by the guidelines, but argues that there is insufficient evidence that he organized or managed Elliott’s participation in the criminal activity. We review the district court’s finding under the clearly erroneous standard to determine whether it is supported by a preponderance of the evidence. United States v. Guadalupe, 979 F.2d 790, 795 (10th Cir.1992). We find sufficient record evidence that Bauer stood to profit the most from the criminal activity and that Bauer tried to recruit Elliott to commit the murders, convinced Elliott to supply the murder weapon, gave Elliott directions on how to retrieve the weapon from a pawn shop, and coordinated Elliott’s delivery of the weapon to Ritter. We therefore conclude that the district court’s findings were not clearly erroneous and affirm.

We DISMISS Bauer’s appeal of the district court’s refusal to depart downward from the guidelines and otherwise AFFIRM.