United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1193

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

District

* Court for the District of Nebraska.

Jose Del Toro-Aguilera, *

*

Appellant. *

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Submitted: September 12, 1997

Filed: March 5, 1998

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Before McMILLIAN, ROSS and HANSEN, Circuit Judges.

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ROSS, Circuit Judge.

Jose Del Toro-Aguilera (Del Toro) appeals from a judgment entered in

the district court following his conviction and sentencing for conspiracy

to distribute and possession with the intent to distribute methamphetamine

in violation of 21 U.S.C. §§ 841(a), 846. Del Toro challenges the

sufficiency of 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 his

conviction, but reverse and remand for resentencing. 

A superseding indictment charged Del Toro and six other defendants

with conspiracy to distribute methamphetamine. Before trial, all

defendants except Del Toro pled guilty. At Del Toro's trial, each of the

co-defendants and other witnesses testified for the government. We need

not set forth their testimony in detail. In brief, the government's

evidence was that co-defendant Johnny Wilson and Jimmy Howard, an

unindicted co-conspirator who had pled guilty to federal drug charges in

Wyoming, entered into a partnership to distribute methamphetamine, which

they purchased in California for distribution in Nebraska and Iowa. Wilson

testified that from August 1994 until November 1995, except for a period

of about a month, every week to ten days he had purchased uncut

methamphetamine in one to five pound quantities from Del Toro. Before

Howard's arrest in May 1995, Wilson paid cash for the drugs, but after the

arrest, Del Toro "fronted" the drugs -- that is, Del Toro allowed Wilson

to buy on credit. Howard testified that between August 1994 and May 1995,

on about ten occasions he had purchased between two to five pounds of

methamphetamine from Del Toro, who on a few occasions fronted the drugs.

Other witnesses testified that they were present when Wilson or Howard had

purchased methamphetamine from Del Toro. The government also introduced

records showing numerous telephone contacts between Wilson and Howard and

Del Toro. 

On appeal Del Toro argues that the government failed to prove that he

knowingly joined the Wilson-Howard conspiracy to distribute

methamphetamine. His argument is totally without merit. "Once the

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). 

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conspiracy, only slight evidence linking the defendant to the conspiracy

is required to prove the defendant's involvement and support the

conviction." United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996).

As indicated above, there is ample evidence supporting Del Toro's

conspiracy conviction. Certainly, from the quantities of drugs he

distributed to Wilson and Howard, a jury could reasonably conclude that Del

Toro knew the drugs were purchased for distribution. 

Del Toro also challenges 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 for

obstruction of justice under U.S.S.G. § 3C1.1. Although the PSR noted that

Del Toro's role in the "large distribution ring" was not "clear," it

recommended a role-in-the-offense enhancement under § 3B1.1(b), which

provides for a three-level enhancement "[i]f the defendant was a manager

or supervisor" of a criminal activity that involved five or more

participants. Del Toro objected to both enhancements. At the sentencing

hearing, the government relied on the evidence presented at trial. The

court imposed the obstruction-of-justice enhancement, which Del Toro does

not challenge on appeal. The court also imposed the role-in the-offense

enhancement, which raised Del Toro's offense level to 43 and required the

district court to impose a life sentence. 

On appeal Del Toro argues that there was insufficient evidence to

support the three-level role-in-the-offense enhancement under § 3B1.1(b).1

"The adjustments
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available under § 3B1.1 are meant to differentiate among defendants

according to their relative responsibility." United States v. Bryson, 110

F.3d 575, 586 (8th Cir. 1997). To qualify for the § 3B1.1(b) enhancement,

Del Toro "’must have been . . . the manager, or supervisor of one or more

other participants.' " United States v. Logan, 121 F.3d 1172, 1179 (8th

Cir. 1997) (quoting U.S.S.G. § 3B1.1, application note 2). In imposing the

enhancement, among other things, a "court should consider the defendant's

exercise of decision-making authority . . . and the degree of control and

authority 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

where fronting was involved, citing United States v. Pena, 67 F.3d 153,

156-57 (8th Cir. 1996), and United States v. Flores, 73 F.3d 826, 835-36

(8th Cir.), cert. denied, 116 S. Ct. 2568 (1996). However, he argues that

fronting alone is an insufficient basis upon which to impose an

enhancement. He points out that in Pena and Flores, in addition to

fronting, there was evidence showing the defendants had control over one

or more participants. He notes in Pena, 67 F.3d at 156-57, there was

evidence that the defendant had "controlled" a participant and organized

and supervised a drug shipment, and in Flores, 73 F.3d at 836, there was

evidence that the defendant had "solicited a substantial buyer on behalf

of the drug ring, helped finance the [buyer's] trip, played an integral and

extensive role in planning [a] transaction, . . . and personally managed

and ensured that [a] $200,000 deal got done."
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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 sustain a finding that [defendant] was a manager or supervisor" and

reversed a § 3B1.1(b) enhancement because there was no other evidence

showing 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 States v. Guyton,

36 F.3d 655 (7th Cir. 1994). In Guyton, id. at 662, the Seventh Circuit

"acknowledged . . . that a seller's front arrangements with his customers

could very well give him an incentive to exercise considerable control over

their activities[,]" but held that "without evidence of . . . control,

evidence of a front arrangement was by itself insufficient to demonstrate

the level of control necessary" to support a § 3B1.1 enhancement. See also

United States v. Vargas, 16 F.3d 155, 160 (7th Cir. 1994) (defendant's

"ability to supply cocaine. . . , to sell it on credit, and to negotiate

its price, did not put him in the role of manager or supervisor"). We

note the Tenth Circuit also has recently held that fronting, "without

something more, is not enough to support" a § 3B1.1 enhancement, reasoning

the "gravamen of th[e] enhancement is control, organization, and

responsibility for 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 was

"something more" than fronting. The government notes that Del Toro was

responsible for distributing seventy-five to one hundred pounds of

methamphetamine. However, in Bryson, 110 F.3d at 585, this court

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 . . .

distributor [wa]s already reflected in her base offense level, a figure

based on the amount of drugs she was responsible for distributing." 

The government also notes that 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 there was evidence that Wilson and Howard had had at least two other

suppliers before they met Del Toro. In any event, in Logan, 121 F.3d at 1179, this court

indicated that the fact that a witness had stopped buying from the defendant when

his drugs were "bad" showed the defendant's lack of control over the

witness. Moreover, it is well-established that Del Toro's "status 'as a

distributor, standing alone, does not warrant an enhancement under

§ 3B1.1.' '' Bryson, 110 F.3d at 584 (quoting United States v. Brown, 944

F.2d 1377, 1381 (7th Cir. 1991)); see also United States v. Roberts, 14

F.3d 502, 524 (10th Cir. 1993) (finding that defendant was source of drugs

did not constitute evidence of "control over a subordinate necessary to

conclude that [she] was a supervisor or manager"). Also, contrary to the

government's argument, in the circumstances of this case, the evidence

showing a number of telephone calls between Wilson and Howard and Del Toro

does not show Del Toro's control over a participant, especially since there

was no evidence as to the content of the calls.

Based on our review of the record, we have found nothing "more" than

Del Toro occasionally fronted methamphetamine. We thus hold that the

district court erred in imposing the § 3B1.1(b) enhancement.
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Accordingly, we affirm Del Toro's conviction, but reverse his sentence

and remand for resentencing consistent with this opinion.

A true copy.

 Attest:

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