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The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1755

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Fredrick Robertson, *

*

Appellant. *

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Submitted: December 10, 2007

 Filed: March 7, 2008

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Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

Fredrick Robertson was convicted on one count of knowingly possessing with

the intent to distribute more than 100 kilograms of marijuana and of aiding and

abetting the possession of more than 100 kilograms of marijuana, violations of 21

U.S.C. § 841 and 18 U.S.C. § 2. Robertson was convicted on a second count of using

$1,327.00 to commit or facilitate the offense charged in the first count. The district

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 imposed upon Robertson a four-level leadership role enhancement. Robertson
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contends on appeal that the evidence was insufficient to convict him and that the

district court erred in applying the role enhancement. We affirm.

I. 

In November 2005, Robertson had been in contact with Shawn Tull about

transporting marijuana. Tull approached Charles Bowers about making some money.

Bowers agreed, and the two went to the St. Paul airport to pick up Robertson, who

gave Tull an envelope full of cash and told him to acquire a large vehicle for

transporting marijuana. Robertson had previously told Tull to find two Caucasian

women to drive the vehicle back from Arizona, and Tull in turn asked Bowers to find

them. Robertson promised that he would provide the money to pay each woman

$1,500. Bowers and Tull employed a woman to buy a Chevy Astro van. Robertson

did not approve of the vehicle, however, so they returned it and bought a Suburban.

Bowers found two women to drive the vehicle, Carin Philpot and Anna Lindquist.

Bowers, Tull, Philpot, and Lindquist drove the Suburban to Tucson, Arizona, where

they again met with Robertson. Robertson took the Suburban and returned it later

loaded with 309.8 kilograms (682.9 pounds) of marijuana. Robertson also returned

with a Chevy Trailblazer in which he, Tull, and Bowers began the trip, while Philpot

and Lindquist drove the Suburban. On the trip to Tucson, the Suburban had been

pulled over by police, so Robertson directed that they take a different route back to

Minnesota. Robertson was also concerned that the Suburban had mechanical

problems, so he tried to rent a U-Haul trailer for the Trailblazer in case the Suburban

broke down along the way. He was unable to do so in Tucson, but he arranged en

route to rent one in Lincoln, Nebraska. Before leaving Tucson, Robertson provided

money for food and gas for the women. On the drive to Minnesota, the occupants in

the vehicles communicated by cell phone. Robertson directed when they were to stop

and which route to take. Robertson discussed taking the marijuana to Philadelphia,

but since the women were already thinking about exiting the venture, he reinstated

Minnesota as the destination. At one point, Robertson ordered Bowers to relieve the
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women by driving the Suburban for a time. Across Nebraska, the Trailblazer was in

the lead, driving about ten miles per hour below the posted speed limit and being

passed by every vehicle except the Suburban, a fact that attracted the Nebraska State

Patrol’s attention. When a patrol officer pulled his car alongside of and looked into

the Trailblazer, Robertson ordered the Suburban to continue on while the Trailblazer

exited the interstate. Both vehicles were stopped for minor traffic offenses, the drugs

were discovered, and all five participants were arrested. 

II. 

Robertson argues that there was insufficient evidence to support a finding that

he possessed the drugs. We review a sufficiency of the evidence challenge de novo,

but we draw all reasonable inferences in favor of the state, and we view all the

evidence in the light most favorable to upholding the verdict. United States v. Flores,

474 F.3d 1100, 1105 (8th Cir. 2007). “We will reverse only if no reasonable jury

could have found [the defendant] guilty beyond a reasonable doubt.” Id. (internal

quotations omitted, alteration in original). 

Anyone who knowingly possesses with the intent to distribute more than 100

kilograms of marijuana is punishable by at least five and no more than forty years’

imprisonment. 21 U.S.C. § 841(a), (b)(1)(B). Knowing possession can be either

actual or constructive. United States v. Cuevas-Arrendondo, 469 F.3d 712, 715 (8th

Cir. 2006). The evidence was sufficient to enable a jury to reasonably conclude that

Robertson actually possessed the marijuana. Upon the group’s arrival in Arizona,

Robertson took the Suburban away empty and, when he returned, the Suburban was

filled with the marijuana. 

There is also sufficient evidence from which a jury could reasonably conclude

that Robertson constructively possessed the marijuana by controlling the Suburban.

To constructively possess contraband, the defendant must know of it and have the
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intent and ability to exercise control over it or the place where it is kept. United States

v. Valera-Ramirez, 491 F.3d 775, 777 (8th Cir. 2007); Cuevas-Arrendondo, 469 F.3d

at 715. Robertson and Tull were the first two of the five participants to join the

scheme, and Robertson is the one who financed it, which included providing the

money to buy the Suburban. In addition to obtaining the marijuana and arranging for

it to be placed in the Suburban, Robertson directed who rode in and drove the

Suburban, when it should stop, and what route it should take back to Minnesota. It

was he who ordered the Suburban to continue on after the Nebraska officer became

interested in the caravan, and it was he who pulled off the interstate. 

Also sufficient is the evidence from which a jury could reasonably conclude

that Robertson aided, counseled, commanded, or induced other participants to possess

the marijuana. A person is liable as a principal if he “aids, abets, counsels, commands,

induces or procures” another to commit a federal crime, or if he willfully causes

another person to commit a federal offense. 18 U.S.C. § 2. To convict Robertson of

aiding and abetting, the government was required to prove that he associated himself

with the criminal enterprise, that he wanted it to succeed, and that he took actions to

help it succeed. United States v. Castillo, 171 F.3d 1163, 1166 (8th Cir. 1999). He

associated himself with the enterprise by flying to Minnesota to be involved with it.

He demonstrated his desire that the enterprise succeed in transporting the drugs by

financing the operation, traveling separately to Arizona to meet the other participants,

acquiring the actual drugs to be transported, choosing the best route back to

Minnesota, and driving one of the vehicles back to Minnesota. Thus, the evidence is

more than sufficient to support a finding that Robertson exercised control over the

marijuana, the Suburban in which the marijuana was transported, and the persons who

actually drove the Suburban. 
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III.

Robertson also argues that the district court erred by enhancing his offense level

by four levels for a leadership role in the offense. We review a district court’s

application of the guidelines de novo and its factual findings for clear error. United

States v. Abdul-Aziz, 486 F.3d 471, 478 (8th Cir. 2007). “We reverse the district

court’s findings only if we have a definite and firm conviction that a mistake has been

made.” United States v. Garcia, 512 F.3d 1004, 1005 (8th Cir. 2008) (internal

quotation omitted). 

A defendant’s offense level must be increased by four levels if he was an

“organizer or leader of a criminal activity that involved five or more participants or

was otherwise extensive.” United States Sentencing Guidelines (U.S.S.G.) §

3B1.1(a). In finding a defendant to be an organizer or leader, the court should

consider

the exercise of decision making authority, the nature of participation in

the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the nature and scope

of the illegal activity, and the degree of control and authority exercised

over others.

Garcia, 512 F.3d at 1005 (quoting U.S.S.G. § 3B1.1 cmt. n.4). A district court may

find facts for the purpose of applying guideline enhancements as long as it

understands that the guidelines are advisory. United States v. High Elk, 442 F.3d 622,

626 (8th Cir. 2006).

From the facts detailed above, it is clear that Robertson exercised decisionmaking authority over both the broad outline and the specific details of a scheme to

transport more than 100 kilograms of marijuana from Arizona to Minnesota. It is
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reasonable to infer that none of the other known participants had or exercised

authority over Robertson. Accordingly, the district court did not err by finding that

Robertson played a leadership role in the offense. 

The judgment is affirmed.

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