# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 4, 2010

Decided August 10, 2010

Before

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER

, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10

‐ 1381

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

MICHAEL D. STARK,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 09

‐ CR

‐ 114

‐ C

‐ 01

Barbara B. Crabb,

Judge

.

O R D E R

Michael Stark pleaded guilty to one count of possessing with intent to distribute

methamphetamines. See 21 U.S.C. § 841(a)(1). Stark appeals the district court’s decision to

increase his prison sentence based on its determination that he managed or supervised

others in the commission of the offense. See U.S.S.G. § 3B1.1(c). Because Stark recruited and

directed at least two others to make regular trips from Wisconsin to Minnesota to pick up

drug shipments for him, the district court did not clearly err in deciding Stark was a

manager, and we affirm the court’s judgment.

Background

Police had been investigating Stark’s drug activities for several years before arresting

him in December 2008. At that time, one of Stark’s regular customers, Cory Mlejnek, began NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 1381 Page 2

cooperating with police and agreed to set up a controlled purchase of roughly 10 grams of

methamphetamine from Stark at his residence. Police arrested Stark after the deal

happened and they found an additional 30 grams of methamphetamine, drug

paraphernalia, and a drug ledger during a subsequent search of Stark’s home. Stark entered

a written agreement to plead guilty to one count of drug possession with intent to

distribute.

According to the presentence investigation report, Stark was a large

‐ scale

methamphetamine dealer in northwestern Wisconsin. The probation officer recommended

a two

‐ level increase under U.S.S.G. § 3B1.1(c) because Stark had enlisted several people to

transport drugs at his direction and he recruited others to sell the drugs that Stark fronted

them. Stark submitted over 20 objections to the presentence report, including his denial that

he acted as a manager or supervisor of the criminal activity. He did not, however, object to

the report’s notation that Wendy Zezza had transported drugs for Stark at least 20 times or

that he had enlisted another woman to transport drugs for him on occasion, too.

At the sentencing hearing the government called three witnesses—Mlejnek, Zezza,

and David Thurs—to testify about Stark’s role in the offense. First, Thurs testified that

Zezza, his then

‐ girlfriend, introduced him to Stark in July 2006 after she told Stark that

Thurs had a contact in St. Paul, Minnesota, who could supply Stark with drugs. In

describing his initial meeting and first trip for Stark, Thurs said that he had gone with Zezza

to Stark’s house, Zezza had gotten out of the car to speak with Stark, and she had returned

with an envelope containing $6,500. The pair then traveled to St. Paul where they used

most of the money, minus approximately $500 each in compensation, to purchase a quarter

of a pound of methamphetamine for Stark and transport it back to Stark’s house. According

to Thurs, he and Zezza continued to make these trips for Stark approximately every other

week for the following year. Each time Stark would call Thurs when he was ready for the

next shipment, and then Thurs and Zezza would pick up the money, make the trip to St.

Paul, return with typically 4 ounces of methamphetamine at a time, and deliver the drugs to

Stark’s home. When asked about his compensation for these trips, Thurs explained that he

and Zezza usually got about $500 each up front, which was taken out of the money Stark

gave them before each trip, but that the amount fluctuated somewhat depending on the

price of the drugs. Although Thurs could not recall a specific conversation about

compensation with Stark, he explained that Zezza had worked out the deal with Stark or

one of his associates. On cross

‐ examination, Thurs conceded that because Zezza made the

initial contact with Stark, he could not say whose idea it was to start trafficking drugs in this

way.

During Zezza’s testimony, she confirmed that beginning in 2006 she and Thurs had

made regular trips to St. Paul to pick up methamphetamine for Stark. Zezza could notNo. 10

‐ 1381 Page 3

remember whether the initial idea for these trips came from her or Stark. But Zezza

confirmed that once she and Thurs agreed to transport the drugs for Stark, all of the trips

were arranged by Stark, who contacted Thurs to schedule pick

‐ ups as needed. When asked

about her compensation arrangement with Stark, Zezza said that she got paid before the

trips but that she was not certain whether Stark knew that she and Thurs were taking a

portion of the drug money. According to Zezza, Thurs “was the one that handled a lot of

the money stuff and transporting and stuff” and that she was “just kind of there” as a

passenger.

Mlejnek, the government’s third witness, described meeting Stark in August 2008,

when he and a friend went to Stark’s house to buy drugs. Mlejnek began regularly

purchasing methamphetamine from Stark in amounts ranging from a sixteenth of an ounce

to an ounce at a time. Initially he paid up front, but as the amounts increased Stark began to

front him the drugs. Stark knew Mlejnek was selling some of the methamphetamine to

other customers and that he used the proceeds to pay Stark back for the fronted drugs. On

cross

‐ examination Mlejnek conceded that while Stark may have agreed to sell him larger

amounts of methamphetamine so that Mlejnek to could sell to others, Stark did not keep

track of Mlejnek’s customers and ultimately did not care what Mlejnek did with the drugs

as long as Stark got paid.

In arguing against the § 3B1.1 adjustment, Stark pointed out that there were several

inconsistencies in the testimony from Zezza and Thurs, and emphasized that neither of

them could recall how they came to be Stark’s drug runners or who organized the

relationship. Stark argued that even accepting the testimony by Zezza and Thurs, it was

equally likely that they transported the drugs as a kind of independent business venture

and that Stark was their customer. Regarding his relationship with Mlejnek, Stark

maintained that he did nothing more than sell drugs to Mlejnek and never discussed or

directed Mlejnek’s use of the drugs. Finally, Stark questioned the credibility of the three

witnesses, all of whom understood that “their cooperation would result in favorable

treatment” by the government when it came to their own criminal cases.

The district court disagreed with Stark, however, and determined that he qualified as

a manager/supervisor because he was responsible for the trips Zezza and Thurs made to St.

Paul and because Zezza, Thurs, Mlejnek, and others transported and distributed

methamphetamine at his direction. The court sentenced him to 168 months’

imprisonment—67 months below the applicable guidelines range and 20 months below the

guidelines range if the § 3B1.1 increase did not apply.No. 10

‐ 1381 Page 4

Analysis

On appeal Stark challenges the district court’s decision to increase his sentence under

§ 3B1.1. Section 3B1.1(c) instructs a sentencing court to increase a defendant’s base

‐ offense

level by two “if the defendant was an organizer, leader, manager, or supervisor in any

criminal activity” other than that described in the other subsections of the guideline.

Section § 3B1.1(c) applies “as long as the criminal activity involves more than one

participant and the defendant played a coordinating or organizing role.” United States v.

Pira

, 535 F.3d 724, 730 (7th Cir. 2008) (quoting United States v. Carrera

, 259 F.3d 818, 827 (7th

Cir. 2001)). The purpose of § 3B1.1 is to account for a defendant’s “relative responsibility.”

U.S.S.G. § 3B1.1, cmt. background.

In determining relative responsibility, the commentary to § 3B1.1 provides that

sentencing courts should consider the following seven factors in analyzing whether a

defendant qualifies for the role increase:

(1) the exercise of decision making 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 and authority exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4; see also United States v. Howell

, 527 F.3d 646, 649 (7th Cir. 2008)

(noting that although these factors were provided to help differentiate leadership from

management, they can also be used to determine whether defendant had any supervisory

role at all). The absence or presence of any single factor is not dispositive in determining

the applicability of the increase; instead, the court should consider, on the whole, whether

these elements demonstrate the defendant played a coordinating role. United States v.

Matthews

, 222 F.3d 305, 307 (7th Cir. 2000). Evidence that the defendant exercised control

over another participant, however, has generally been considered to be the “ sine qua non ”

for applying an increase under § 3B1.1. United States v. Gonzalez

‐ Mendoza

, 584 F.3d 726, 729

(7th Cir. 2009). Such control does not require absolute authority, though, and can include

organizing another participant’s role in the scheme. See United States v. Skoczen

, 405 F.3d

537, 550 (7th Cir. 2005) (quoting United States v. Reneslacis

, 349 F.3d 412, 417 (7th Cir. 2003)).

We review a district court’s § 3B1.1 determination for clear error. United States v. Johnson

,

489 F.3d 794, 796 (7th Cir. 2007).

Stark’s strongest argument is that his buyer/seller relationship with Mlejnek does not

support the § 3B1.1 increase. As Stark points out, evidence of a fronting arrangement,

without more, will not support the enhancement. United States v. Mendoza

, 576 F.3d 711, 720No. 10

‐ 1381 Page 5

(7th Cir. 2009). The government has conceded this point on appeal and focuses instead on

Stark’s control of Zezza and Thurs.

Even disregarding Stark’s relationship with Mlejnek, ample evidence supports the

district court’s application of the § 3B1.1(c) adjustment. Both Zezza and Thurs confirmed

that Stark scheduled their trips to St. Paul to pick up drugs. Stark also determined the

amount of methamphetamine to be purchased, provided the money for the drugs, and

compensated them up front for their work. Stark argues that because there was no evidence

about the profits made from these trips, the district court improperly concluded that Stark

enjoyed a greater share of the proceeds. But Stark did not share the profits of his

subsequent sales with the pair, and the district court could reasonably infer that Stark

enjoyed a greater return on his investment than either Zezza or Thurs. See Mendoza

, 576

F.3d at 720 (noting that district court could reasonably infer that defendant enjoyed larger

share of the profits when he owned the drugs and set the purchase price). Zezza and Thurs

both testified that their participation was limited to picking up drugs from the supplier and

transporting them back to Stark; they had no role in selling the drugs. This shows that the

pair executed one function in the larger distribution scheme controlled by Stark, and that

they did so at his direction. No more is needed to warrant the increase. See, e.g., United

States v. Martinez

, 520 F.3d 749, 752 (7th Cir. 2008); Mendoza

, 576 F.3d at 720; United States v.

Bjorkman

, 270 F.3d 482, 494

‐ 95 (7th Cir. 2001); United States v. Carrera

, 259 F.3d 818, 827 (7th

Cir. 2001); United States v. Vargas

, 16 F.3d 155, 160 (7th Cir. 1994).

Stark focuses on the uncertainty of how Zezza and Thurs initially agreed to transport

drugs for him and argues that it is not clear that Stark recruited them. But even if Zezza or

Thurs came up with the idea for Stark to buy from the supplier in St. Paul, or if they

initiated the relationship with Stark, this would not negate the fact that once enlisted, Stark

exercised control and general decision

‐ making authority over their endeavors. And,

although Stark emphasizes the inconsistencies in Zezza and Thurs’s testimonies, the district

court believed them, and we give great deference to a district court’s credibility

determinations. United States v. Fox

, 548 F.3d 523, 529 (7th Cir. 2008). Even assuming that

another characterization of the events was plausible based on their accounts, the district

court’s choice between different permissible views of the evidence would not constitute

clear error. United States v. Hatten

‐ Lubick

, 525 F.3d 575, 580 (7th Cir. 2008).

Accordingly, we AFFIRM the judgment of the district court.