United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1193

___________ United States of America, * * Appellee, * * v. * Appeal from the United State s District * Court for the District of Nebraska
. Jose Del Toro-Aguilera, * * Appellant. *

___________ Submitted: September 12, 1997 Filed: March 5, 1998

___________ Before McMILLIAN, ROSS and HANSEN, Circuit Judges.

___________ ROSS, Circuit Judge.
Jose Del Toro-Aguilera (Del Toro) ap peals from a judgment entered in the district court fo llowing his conviction and sentencing for conspiracy to distribute and possession with the intent to distribute methamphetamin e inviolation of 21 U.S.C. §§ 841(a), 846. Del Toro challenges th e sufficiencyof the evidence supporting his conspiracy conviction and the district court's imposition of a sentencing enhancement

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for his role in the offense under U.S.S.G § 3B1.1(b). We affirm hi s conviction, but reverse and remand for resentencing.

Asupe rseding indictment charged Del Toro and six other defendant s wit hconspiracy to distribute methamphetamine. Before trial, al l defend ants except Del Toro pled guilty. At Del Toro's trial, each of the co-defendants and other witnesses testified for the government. We nee d not set forth their testimony in detail. In brief, the government' s evi dence was that co-defendant Johnny Wilson and Jimmy Howard, a n unindicted co-conspirator who had pled guilty to federal drug charges i n Wyomi ng, entered into a partnership to distribute methamphetamine, whic h they purchased in California for distribution in Nebraska an d Iowa. Wilson testified that from August 1994 until November 1995, except for a perio d of about a month, every week to ten days he had purchased uncu t methamphe tamine in one to five pound quantities from Del Toro. Befor e Howard's arrest in May 1995, Wils on paid cash for the drugs, but after the arrest, D el Toro "fronted" the drugs -- that is, Del Toro allowed Wilso n to buy on credit. Howard testifi ed that between August 1994 and May 1995,
on abo ut ten occasions he had purchased between two to five pounds o f methamphet amine from Del Toro, who on a few occasions fronted the drugs
. Other witnesses testified that th ey were present when Wilson or Howard had pur chasedmethamphetamine from Del Toro. The government also introduce d record s showing numerous telephone contacts between Wilson and Howard and Del Toro.
On appeal Del Toro argues that the government fa iled to prove that he knowinglyjoined the Wilson-Howard conspiracy to distribut e met hamphetamine. His argument is totally without merit. "Once th e government establishes the existence of a drug

## Without the enhancement, Del Toro's guidelines range is 292-365 months. 1 

## "We point out the relative severity of this enhancement only to illustrate that this is indeed a severe enhancement that deserves an appropriate level of scrutiny from sentencing courts to insure it is warranted in a particular case." United States v. Torres , 53 F.3d 1129, 1143 n.14 (10th Cir.), cert. denied , 116 S. Ct. 220 (1995). -3- con spiracy, only slight evidence linking the defendant to the conspirac y is required to prove the defendant's involvement and support th e conviction." United States v. Jenkins , 78 F.3d 1283, 1287 ( 8th Cir. 1996). As indicated above, there is ample evidence supporting Del Toro' s con spiracyconviction. Certainly, from the quantities of drugs h e distributed to Wilson and Howard, a jury could reasonably co nclude that Del Toro knew the drugs were purchased for distribution.

Del Toro also challen ges his sentence. The presentence report (PSR) found that Del Toro's base offense level was 38 and his criminal history category was I. The PSR recommended a two-level enhancement fo r obstruction of justice under U.S.S.G. § 3C1.1. Although the PSR noted that Del To ro's role in the "large distribution ring" was not "clear," i t reco mmendeda role-in-the-offense enhancement under § 3B1.1(b), whic h provides for a three-level enhancement "[i]f the defendant was a manage r or supe rvisor" of a criminal activity that involved five or mor e partic ipants. Del Toro objected to both enhancements. At the sentencing hear ing, the government relied on the evidence presented at trial. Th e court imposed the obstruction-of-justice enhancement, which Del Toro does not challe nge on appeal. The court also imposed the role-in the-offens e enhanc ement, which raised Del Toro's offense level to 43 and required the district court to impose a life sentence.

Onappeal Del Toro argues that there was insufficient evidence t o support the three-level role-in-the-offense enha ncement under § 3B1.1(b). 1 "The adjustments

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ava ilable under § 3B1.1 are meant to differentiate among defendant s according to their relative responsibility." United States v. Bryson , 110 F.3d 575, 586 (8th Cir. 1997). T o qualify for the § 3B1.1(b) enhancement, Del To ro "’must have been . . . the manager, or supervisor of one or more other par ticipants.' " United States v. Logan , 121 F.3d 1172, 1179 (8t h Cir. 1997) (quoting U.S.S.G. § 3B1.1, application note 2). In imposing the enhanc ement, among other things, a "court should consider the defendant's exerci se of decision-making authority . . . and the degree of control and author ity that the defendant exercised over others." Bryson , 110 F.3d at 584 (citing U.S.S.G. § 3B1.1, application note 4).

Del Toro does not dispute the evidence that he occasionally fronted drugs and acknowledges that this court has upheld § 3B1.1(b) enhancements wher e fronting was involved, citing United States v. Pena , 67 F.3d 153 , 156-57 (8 th Cir. 1996), and United States v. Flores , 73 F.3d 826, 835-3 6 (8th Cir.), cert. denied , 116 S. Ct. 2568 (1996). However, he argues that fron ting alone is an insufficient basis upon which to impose a n enhancement. He points out that in Pena and Flores , in addition t o fronting, there was evidence showing the defendants had control over on e or more par ticipants. He notes in Pena , 67 F.3d at 156-57, there wa s evi dence that the defendant had "controlled" a participant and organize d and supe rvised a drug shipment, and in Flores , 73 F.3d at 836, there wa s evidence that the defendant had "solicited a substantial buyer on behal f of the drug ring, helped finance the [buyer's] trip, played an integral and extensive role in planning [a] transaction, . . . and personally manage d and ensured that [a] $200,000 deal got done."

### -5- We agree. Indeed, recent case law supports his argument. In Logan , 121 F. 3d at 1179, we held that evidence of fronting alone was not "enough to sustai n a finding that [defendant] was a manager or supervisor" an d
re verseda § 3B1.1(b) enhancement because there was no other evidenc e showin g the defendant's control over another participant. In Bryson , 110 F.3d at 586, we stated that even though a defendant may have fronted drugs, without additional evidence showing control over another participant, a § 3B1.1 enhancement was inappropriate, citing e.g. United St ates v. Guyton , 36 F.3d 655 (7th Cir. 1994). In Guyton , id. at 662, the Seventh Circui t "ackno wledged . . . that a seller's front arrangements with his customers could very well give him an incentive to exercise considerab le control over their act ivities[,]" but held that "without evidence of . . . control , eviden ce of a front arrangement was by itself insufficient to demonstrate the level of control necessary" to support a § 3B1.1 enhance ment. See also United St ates v. Vargas , 16 F.3d 155, 160 (7th Cir. 1994) (defendant' s "abilit yto supply cocaine. . . , to sell it on credit, and to negotiat e its price, did not put him in the role of manager or supervisor"). W e no te the Tenth Circuit also has recently held that fronting, "withou t something more, is not enough to support" a § 3B1.1 enhancement, reasoning the " gravamen of th[e] enhancement is control, organization, an d responsi bilityfor the actions of other individuals." United States v
. Owens , 70 F.3d 1118, 1129 (10th Cir. 1995) (internal quotation omitted)
.

In this case, the government attempts to argue that there wa s "som ething more" than fronting. The government notes that Del Toro wa s respons ible for distributing seventy-five to one hundred pounds o f methamphetamine. However, in Bryson , 110 F.3d at 585, this cour t discounted the amount of drugs as a factor for imposing a

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§ 3B1.1(b) enhancement, reasoning that a defendant's "status as a . .
. distribu tor [wa]s already reflected in her base offense level, a figur e based on the amount of drugs she was responsible for distributing." The government also notesthat except for a month when Howard and Wilson stopped buying from Del Toro because his methamphetamine was "wet," Del Toro was the source of the conspiracy's drugs. However, we note that th ere was evidence that Wilson and Howard had had at least two othe r suppliers before they met Del Toro. In any event, in Logan , 121 F.3d at 1179 , this court indicated that the fact t hat a witness had stopped buying from the defendant when his drug s were "bad" showed the defendant's lack of control over th e witness. Moreover, it is well-established that Del Toro's "status 'as a distrib utor, standing alone, does not warrant an enhancement unde r § 3B1.1.' '' Bryson , 110 F.3d at 584 (quoting United States v. Brown , 944 F.2d1377, 1381 (7th Cir. 1991)); see also United States v. Roberts , 1 4 F.3d 502, 524 (10th Cir. 1993) (f inding that defendant was source of drugs did not constitute evidence of "control over a subordinate necessary t o conclu de that [she] was a supervisor or manager"). Also, contrary to the gov ernment's argument, in the circumstances of this case, the evidenc e showing a number of telephone cal ls between Wilson and Howard and Del Toro does not show Del Toro's control over a participant, especia lly since there was no evidence as to the content of the calls.
Based on our review o f the record, we have found nothing "more" than De l Toro occasionally fronted methamphetamine. We thus hold that th e district court erred in imposing the § 3B1.1(b) enhancement.

### -7- Accordingly, we affirm Del Toro's conviction, but reverse his sentenc e and remand for resentencing consistent with this opinion.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT