In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3324

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY WEAVER,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division. 

No. 1:11CR00153-001—William T. Lawrence, Judge.

ARGUED APRIL 30, 2013—DECIDED JUNE 3, 2013

Before FLAUM, WOOD and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Jeffrey Weaver sold methamphetamine on credit to two buyers, who paid off their debts

by selling the drugs to their own customers. (In trade

parlance, this is known as “fronting” the drugs.) Weaver

pleaded guilty to conspiring with those buyers to

possess and distribute methamphetamine, see 21 U.S.C.

§§ 841(a)(1), 846, and the district court sentenced him to

235 months’ imprisonment, the bottom of the guidelines
2 No. 12-3324

range calculated by the court. On appeal Weaver

argues that the court overstated that range by assessing

a 3-level upward adjustment for his perceived leadership role as a manager or supervisor of the conspiracy.

See U.S.S.G. § 3B1.1(b). But there is no evidence that

Weaver managed or supervised his buyers or any

other participant, and thus we vacate the sentence

and remand for resentencing.

While investigating a methamphetamine conspiracy

operating in Indianapolis, the FBI learned that Weaver

had been supplying Gregory Wilkey and Sysine Dale

with two ounces of the drug, two or three times a

week. Wilkey and Dale, with help from Wilkey’s girlfriend and Dale’s boyfriend, resold the methamphetamine from their homes. Weaver, Wilkey, Dale, the girlfriend and boyfriend, and two of Wilkey’s and Dale’s

customers were charged in August 2011 with conspiracy.

Weaver pleaded guilty without a plea agreement.

The probation officer’s factual summary, which neither

party disputed, sheds light on Weaver’s role. That summary, in the presentence report, does not say how

Weaver obtained the methamphetamine he fronted to

Wilkey and Dale, who in turn sold the drugs and settled up with Weaver at the rate of $1,700 per ounce.

According to the probation officer, Weaver “controlled

how much and how often” Wilkey and Dale “would

receive methamphetamine” and “instructed them to

promptly sell it so he could distribute more to them.” And

at times, the summary continues, Weaver “would pressure” Wilkey and Dale to make sales. As an “example” of
No. 12-3324 3

this “pressure,” the probation officer cited a single text

message that Weaver had sent Wilkey. Weaver’s message,

which reads, “Whats up man just givin u a pep talk

‘get r done’ and hit me up,” prompted Wilkey to send

a text message to one of his own customers saying,

“How quick can you get rid of ahalf no bull [expletive]

oboys riding my [expletive] on this one.” The probation

officer’s summary also characterizes Weaver as cautious about delivering methamphetamine and notes that

he always arrived at a rendezvous without the methamphetamine and went back for it only after deciding

that everything was “all right.” Apparently these facts

led the probation officer to recommend (without explanation) a 4-level upward adjustment under U.S.S.G.

§ 3B1.1(a), which applies to a defendant who was “an

organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive.”

Weaver objected to the proposed increase, and at sentencing a detective who investigated the conspiracy

testified about Weaver’s role. The detective explained

that Weaver had offered to supply Wilkey with methamphetamine after learning that Wilkey was dissatisfied with his current source. The detective described

Weaver’s role as “setting the speed” of the distribution by often declining to supply Wilkey and Dale with

methamphetamine at the precise times they wanted it,

setting deliveries on short notice, and often showing

up late for meetings. Moreover, Weaver refused to

deliver drugs anywhere but at Wilkey’s and Dale’s

homes or to deliver more than two ounces at a time.

Yet on cross-examination the detective conceded that
4 No. 12-3324

Weaver did not control to whom or at what price

Wilkey and Dale sold the drugs Weaver fronted.

The district court declined to apply a 4-level increase

but did assess 3 levels under § 3B1.1(b), which applies

to a defendant who was “a manager or supervisor (but

not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise

extensive.” The judge explained his decision:

Here I find that he clearly did exercise decisionmaking authority with respect to the activity of

the conspiracy. He determined how much and

how often Mr. Wilkey and Ms. Dale would receive

methamphetamine, regardless of whether they

needed it quicker than he was willing to provide.

In fact, he often gave them just minutes notice of

the dropoff at their residences.

In addition, his participation in planning and organizing was extensive. He was always, as stated by

the confidential informant, at the residence where

the transactions took place early on. He was also

careful in planning the delivery of meth. He would

repeatedly arrive at a location without the methamphetamine to make sure everything seemed all

right. Then he would leave and return with the meth.

It appears that his participation was somewhat extensive. He had been distributing to [Wilkey] for

two years and to Dale since May of 2011.

It’s also apparent he exercised a degree of control

over the other participants in the criminal activity.
No. 12-3324 5

He directed Wilkey to ensure the timely return of

drug proceeds, and he pressured Wilkey and Dale

to sell the methamphetamine promptly.

Mr. Wilkey’s text message is another example of

the control he exerted. In a text to one of these customers, Mr. Wilkey wrote that you, Weaver, were

putting pressure on him; and he expressed a desire

to sell the meth quickly due to the pressure he was

feeling from Mr. Weaver.

I find and I agree with the argument, Mr. Baldwin

[defense counsel] that it appears that he did not

necessarily determine the price.

He was not engaged actively in the recruitment of

other distributors . . . .

I do believe that the enhancement is appropriate in

this case. I am reluctant, however, to find that

Mr. Weaver was a leader or organizer. I feel that

more appropriately, he was a manager or supervisor.

The court calculated a total offense level of 38, which,

combined with Weaver’s criminal history category of I,

yielded an imprisonment range of 235 to 293 months.

The court selected 235 months, well above the 10-year

statutory minimum. See 21 U.S.C. § 841(b)(1)(A)(viii).

A defendant who is an organizer or leader of a

criminal activity involving five or more participants gets

a 4-level upward adjustment; a manager or supervisor

receives a 3-level increase. U.S.S.G. § 3B1.1(a), (b). At

the crux of this distinction and at the base of the

rationale for this enhancement sits the relative culp-
6 No. 12-3324

Likewise, because Guideline 3B1.1 is all about the culpa- 1

bility of one participant in the criminal enterprise relative to

the culpability of other participants in the scheme, if all participants in the criminal enterprise are equally culpable, none

receive the enhancement. See United States v. Mustread, 42

F.3d 1097, 1103 (7th Cir. 1994).

ability of each participant in the criminal enterprise:

those who are more culpable ought to receive the

harsher organizer/leader enhancement, while those with

lesser culpability and responsibility receive the lesser

enhancement imposed on managers/supervisors. See

United States v. Reynolds, No. 12-1206, 2013 WL 1891294,

at *3 (7th Cir. May 8, 2013) (citing United States v.

Mendoza, 576 F.3d 711, 717 (7th Cir. 2009)). And those with

the least relative culpability receive no enhancement at

all. As United States v. Graham explained, “§ 3B1.1 . . .

1

creates three relevant tiers for conspiracies that are ‘extensive’: a tier for leaders and organizers, a tier for managers and supervisors, and a tier for everyone else.” 162

F.3d 1180, 1185 (D.C. Cir. 1998); see also United States v.

Albers, 93 F.3d 1469, 1488 (10th Cir. 1996) (“[T]he gravamen of [Guideline 3B1.1] is control, organization, and

responsibility for the actions of others[.]”). In short, relative culpability is a “central concern” of Guideline 3B1.1.

Mendoza, 576 F.3d at 717. Weaver does not dispute that

the conspiracy involved five or more participants. But

he does argue that he was not a manager or supervisor.

The Guidelines do not define “organizer,” “leader,”

“manager,” or “supervisor.” Application Note 4 does,

however, list the factors courts should consider in distin-
No. 12-3324 7

The seven factors are: (1) the exercise of decision-making 2

authority; (2) the nature of participation in the commission of

the offense; (3) the recruitment of accomplices; (4) the claimed

right to a larger share of the fruits of the crime; (5) the degree

of participation in planning or organizing the offense; (6) the

nature and scope of the illegal activity; and (7) the degree

of control or authority exercised over others.

guishing between an organizer/leader on the one hand

and a manager/supervisor on the other. See United States 2

v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012). Although

Note 4 offered these factors to distinguish between organizers/leaders and managers/supervisors, we have,

in the past, consulted these factors to decide whether

Guideline 3B1.1 applies in the first place. Thus, we

have used the factors to distinguish between low-level

participants undeserving of any enhancement whatsoever and managers/supervisors worthy of the 3-level

enhancement. See United States v. Howell, 527 F.3d 646,

649 (7th Cir. 2008); United States v. Mustread, 42 F.3d

1097, 1104 (7th Cir. 1994).

United States v. Figueroa found resort to these factors

unnecessary: “If a judge, a probation officer, a lawyer,

even a defendant, doesn’t know what a ‘manager’ or

‘supervisor’ is, Application Note 4 isn’t going to help

him—especially since it’s about organizers and leaders

and not middle managers and low-level supervisors[.]”

682 F.3d at 697. Thus, more recently, we have said that

“a manager or supervisor should be straightforwardly

understood as simply someone who helps manage or

supervise a criminal scheme.” United States v. Grigsby,
8 No. 12-3324

692 F.3d 778, 790 (7th Cir. 2012); see United States v. Collins,

___ F.3d ___, 2013 WL 1979129, at *6 (7th Cir. May 15,

2013); United States v. Bennett, 708 F.3d 879, 892 (7th Cir.

2013); Figueroa, 682 F.3d at 697 (finding no need “to

worry, . . . whether a defendant given [the manager/

supervisor] enhancement . . . ‘exercised some control over

others’ or alternatively ‘played a coordinating or organizing role.’ ”). That does not mean, however, that the factors

in Application Note 4 are not instructive. To the extent

those factors help to “straightforwardly” identify whether

a defendant “helps manage or supervise a criminal

scheme,” courts may continue to consider them. Application Note 4 simply recognizes that organizers/leaders

will exhibit more of those factors and to a greater degree

than a lower-level manager/supervisor. And although

it does not label the factors irrelevant to the manager/supervisor decision, neither does § 3B1.1 require

the presence of any one of the factors as a prerequisite

to imposing the manager/supervisor enhancement. See

Bennett, 708 F.3d at 891; Figueroa, 682 F.3d at 697;

Mustread, 42 F.3d at 1104 n.3 (finding “slavish adherence to [the Application Note 4 factors] unnecessary:

the ultimate question is what relative role the defendant

played”).

So was Weaver a manager or supervisor? In advancing

that he was, the government relies heavily on the suggestion that Weaver exercised decision-making authority and control over Wilkey and Dale by dictating

when, how often, and how much methamphetamine

Wilkey and Dale would receive. See United States v.

Slade, 631 F.3d 185, 190 (4th Cir. 2011) (applying manager/supervisor enhancement when defendant “con-
No. 12-3324 9

trolled the activities of other participants”). In evaluating whether a defendant’s control and authority over

others merits the 3-level manager/supervisor enhancement, district courts should make a commonsense judgment about the defendant’s relative culpability given

his status in the criminal hierarchy. See Graham, 162

F.3d at 1185 (“When confronted with a heavily stratified

conspiracy, a court must superimpose the [three-tiered]

§ 3B1.1 framework over the organizational chart of the

conspiracy and, using the factors noted above, decide

where to draw the two relevant lines that determine

who qualifies for a § 3B1.1 enhancement.”).

For purposes of § 3B1.1 then, a defendant exercises

control and authority over another when he “tells people

what to do and determines whether they’ve done it.”

Figueroa, 682 F.3d at 697; accord United States v. Richards, 198

F.3d 1029, 1034 (7th Cir. 2000) (finding “at least indirect

control over [others] . . . as they did what [defendant]

wanted, when [defendant] wanted it and where [defendant] wanted it done”); United States v. Roberts, 14 F.3d

502, 523 (10th Cir. 1993) (refusing to apply enhancement

in the absence of “evidence of decision-making authority

or control over a subordinate”). This exercise of control

and authority will usually allow the defendant to

impose some sanction, reward, or punishment for the

underling’s execution of the directed task. Thus, the

ability to coerce underlings is a key indicator of control

or authority suggestive of managerial or supervisory

responsibility in the criminal enterprise. See Bennett,

708 F.3d at 892 (“Although most supervisors do not

terrorize their subordinates (at least not physically),
10 No. 12-3324

administering sanctions for poor work quality is a quintessential supervisory task.”). Moreover, the importance

of coercion suggests that an underling’s independence

from the defendant can undermine the government’s

suggestion of control. See Mustread, 42 F.3d at 1105 (“But

Figueroa was one of Mustread’s independent suppliers

and co-conspirators; he was never at [the defendant’s]

beck and call.”). Thus, while all participants in the

criminal activity need not be members of the same

street gang, crew, or formally organized criminal enterprise, some hierarchy among those involved in the

criminal activity must exist to qualify a defendant for an

enhancement under § 3B1.1. Finally, the enhancement

requires ongoing supervision, not a one-off request from

one equal to another during the course of the criminal

activity. Figueroa, 682 F.3d at 697-98 (“Because to be

a ‘manager’ or ‘supervisor’ is to occupy a role—to have a

status—cases distinguish between ongoing supervision

and merely asking a coconspirator on one occasion to

do something.” (citations omitted)).

Weaver provided insufficient ongoing supervision and

coercive authority to warrant the enhancement. He

simply fronted methamphetamine to Wilkey and Dale,

urging them to sell it quickly and pay him. Yet

“[s]upplying drugs and negotiating the terms of their

sale do not by themselves justify a Section 3B1.1 increase,

for these things do not indicate that the person who

does them has a greater degree of responsibility for

putting together the drug operation or a particular

deal than anyone else involved, including the customer.”

United States v. Vargas, 16 F.3d 155, 160 (7th Cir. 1994);
No. 12-3324 11

see also United States v. Pagan, 196 F.3d 884, 892 (7th Cir.

1999); Mustread, 42 F.3d at 1104; United States v. Brown,

944 F.2d 1377, 1381 (7th Cir. 1991); United States v. Thompson, 944 F.2d 1331, 1349 (7th Cir. 1991). Indeed, a borrower

would not describe her loan officer as her “manager” or

“supervisor” simply because the loan officer imposes

a credit limit, dictates the interest rate and loan term,

advertises for customers, and refuses to be available on

weekends. In this sense, Weaver was no different than

any other business that extends credit to customers:

he encouraged behavior that would protect his investment and insure payment of the debt owed to him.

The district court deemed it significant that Weaver

was cautious and budged little on matters such as

price, delivery point, and quantity. Indeed, Weaver

sometimes kept his customers waiting and even decided

at times not to honor their requests for specific delivery

times. But none of that makes him a manager or supervisor of his customers. He did not tell Wilkey or Dale

what price they had to charge their customers, or impose

territorial limits on their sales, or set distribution quotas.

And presumably, if Wilkey and Dale did not resell the

product or sold it at a loss, they would nevertheless

remain indebted to Weaver at $1,700 per ounce. A

manager or supervisor in a drug dealing enterprise

(though he may surely mete out some punishment for

the low-level dealers who performed inadequately)

would have to eat that loss just as a retail store manager

would assume the loss arising from the poor performance of a floor salesman. The best that can be said

for applying the increase is that Weaver generally
12 No. 12-3324

pushed his wares aggressively and demanded prompt

payment, though sometimes would get low marks for

customer service. Weaver’s interest in a quick turnaround, however, doesn’t make Wilkey or Dale his underlings; as the probation officer appeared to understand,

Weaver simply “instructed them to promptly sell” the

methamphetamine “so he could distribute more to

them.” Trying to sell more while getting paid is what

merchants—not necessarily managers and supervisors—do. See Vargas, 16 F.3d at 160; Pagan, 196 F.3d at

893; Mustread, 42 F.3d at 1104-05; United States v. Sayles,

296 F.3d 219, 225 (4th Cir. 2002); United States v. Medina,

167 F.3d 77, 81 n.4 (1st Cir. 1999); United States v. ToroAguilera, 138 F.3d 340, 343 (8th Cir. 1998).

For these same reasons, neither does the government’s suggestion that Weaver recruited Wilkey into

the conspiracy warrant application of the enhancement.

The evidence suggests only that Weaver and his co-conspirators had nothing more than a merchant-customer

relationship. All Weaver did through Wilkey’s inclusion was solicit a new customer for his own wholesale

drug dealing. Weaver did not stratify his drug organization by “hiring” Wilkey as an underling over whom

Weaver exercised managerial or supervisory control.

In the end, the government did not offer any

evidence that Weaver assumed quintessential managerial

or supervisory tasks of the type we have concluded

warrant an increase. See Bennett, 708 F.3d at 892 (administering sanctions for poor performance); Grigsby, 692 F.3d

at 791 (supervising a bank robbery from outside the
No. 12-3324 13

bank); Figueroa, 682 F.3d at 697 (“tell[ing] people what

to do and determin[ing] whether they’ve done it”). 

For these reasons, we VACATE the judgment and

REMAND the case for resentencing.

6-3-13