UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

UNITED STATES OF AMERICA 

v. CAUSE NO.: 1:15-CR-10-TLS 

DEWAYNE LEWIS 

OPINION AND ORDER 

 This matter is before the Court on the Government’s Supplemental Motion Regarding 

Violence Enhancement [ECF No. 508]. For the reasons set forth below, the Government’s 

Motion is denied. 

In the Draft PSR, the United States Probation Officer recommended that the 

Defendant’s offense level be increased by two levels pursuant to § 2D1.1(b)(2) because “the 

defendant used violence, made a credible threat to use violence, or directed the use of 

violence.” Draft PSR ¶ 42, ECF No. 445. The Defendant objected to the two-level increase to 

his offense level, see Def.’s Objs. 14, ECF No. 448, and the Court sustained his objection, Mar. 

11, 2020 Op. & Order 39–40, ECF No. 480. 

After the Court ruled on the parties’ objections, the United States Probation Officer 

filed a Final Presentence Investigation Report (PSR) [ECF No. 485] in which no offense level 

increase pursuant to § 2D1.1(b)(2) was recommended. See PSR ¶¶ 40–49, ECF No. 485. The 

Government objected to the omission of a violence enhancement and requested a hearing. 

Second Addendum to the PSR 1, ECF No. 490. A telephonic/video status conference was held 

on June 12, 2020, during which the Government indicated that it intended to file a motion 

demonstrating why a violence enhancement is appropriate. The Government then filed its 

Supplemental Motion Regarding Violence Enhancement [ECF No. 508] in which it argues that 

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the evidence admitted during trial is sufficient to warrant applying the enhancement and 

increasing the Defendant’s offense level 

Section 2D1.1(b)(2) of the Sentencing Guidelines instructs sentencing courts to 

increase the base offense level by two levels “[i]f the defendant used violence, made a credible 

threat to use violence, or directed the use of violence.” U.S. Sentencing Guidelines Manual § 

2D1.1(b)(2) (U.S. Sentencing Comm’n 2018). The Government argues that the violence 

enhancement should be applied because Trial Exhibits 39 and 40 demonstrate that the 

Defendant had knowledge of certain violent conduct that occurred prior to his arrest. 

Nothing contained in Trial Exhibits 39 and 40 indicates that the Defendant directly 

engaged in or aided any violent conduct. Rather, the Government relies on § 1B1.3 of the 

Sentencing Guidelines, which permits the Court to consider, in the case of jointly undertaken 

criminal activity, the conduct of others to apply sentencing enhancements. The Government 

argues that Trial Exhibits 39 and 40 clearly demonstrate that the Defendant learned of violent 

conduct committed by other participants in the drug trafficking network and that the 

Defendant’s actual knowledge of these events warrants the application of § 2D1.1(b)(2) 

because it exceeds that section’s requirement that the relevant conduct be reasonably 

foreseeable. See Gov’t’s Suppl. Mot. 4–5, ECF No. 508 (“Reasonable foreseeability is all that 

is required for the violence enhancement under relevant conduct principles.”) 

The Government, however, misconstrues the requirements of § 1B1.3. The violent 

conduct of others will be attributed to the Defendant only if it was “(i) within the scope of the 

jointly undertaken criminal activity; (ii) in furtherance of that criminal activity; and (iii) 

reasonably foreseeable in connection with that criminal activity.” U.S. Sentencing Guidelines 

Manual § 1B1.3 (U.S. Sentencing Comm’n 2018). Thus, the Government is incorrect; “mere 

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foreseeability of another’s conduct is not sufficient to bring that conduct within the scope of a 

defendant’s jointly undertaken criminal activity.” United States v. Salem, 597 F.3d 877, 885 

(7th Cir. 2010); see also United States v. Davison, 761 F.3d 683, 686 (7th Cir. 2014) (“The 

government and the district judge stop with foreseeability, and that’s not enough.”). Even 

“[k]nowledge is not sufficient to establish the scope of the jointly undertaken criminal 

activity.” Id. at 889 (“Even if the defendant was perfectly aware of the breadth of the scheme, 

if he was not part of all of it, his sentence could not be based on more than the part to which he 

had agreed.” (quoting United States v. Thomas, 199 F.3d 950, 953 (7th Cir. 1999))). 

To apply § 1B1.3(a)(1)(B), “the district court must make a preliminary determination of 

the scope of the criminal activity the defendant agreed to jointly undertake.” Id. at 886 (citing 

United States v. Fox, 548 F.3d 523, 531–32 (7th Cir. 2008); Thomas, 199 F.3d at 953; U.S. 

Sentencing Guidelines Manual § 1B1.3 cmt. n.2). If the conduct at issue falls within the scope 

of the agreed upon jointly undertaken criminal activity, “[t]hen the court must make a two-part 

determination of whether the conduct of others was both in furtherance of that joint criminal 

activity and reasonably foreseeable to the defendant in connection with the joint criminal 

activity.” Id. (citing Fox, 548 F.3d at 532; Thomas, 199 F.3d at 953; U.S. Sentencing 

Guidelines Manual § 1B1.3(a)(1)(B)). 

In its prior Opinion and Order, the Court determined the scope of the criminal activity 

the Defendant agreed to jointly undertake and concluded: 

[T]hat the DTO constitutes a criminal plan, scheme, endeavor, or enterprise 

undertaken by the defendant in concert with others. The PSR and the evidence 

introduced at trial indicates that the Defendant is intimately familiar with the 

jointly undertaken criminal activity, including the source of drugs, the methods 

of packaging and delivery, the quantity of drugs and money trafficked, the 

individuals involved, and the premises utilized. Based on the Defendant’s 

intimate knowledge of the DTO and his conduct throughout his years of 

involvement with the DTO, the Court can determine the scope of the criminal 

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activity. This scope includes Bates’s regular receipt of controlled substances, 

specifically marijuana, cocaine, and heroin, from Mexico that were fronted to the 

Defendant for distribution. It also includes the Defendant selling the controlled 

substances and returning the drug proceeds to Bates, or to someone else involved 

in the DTO, for shipment to Mexico. Also included is the management of the 

supply chain, as the drugs and drug proceeds trafficked by the Defendant were 

processed through various shipment and storage premises. Finally, the scope 

includes the Defendant’s actions to assist Bates, namely helping him escape to 

Mexico, recovering cocaine and drug proceeds from Lepper’s pole barn, and 

collecting drug proceeds from the other DTO dealers. 

Op. & Order 10–11 (internal citations omitted). Trial Exhibits 39 and 40 demonstrate that the 

Defendant learned of certain violent conduct that occurred among members of the greater 

trafficking network. However, this conduct falls outside of the scope of the above-described 

criminal activity the Defendant agreed to jointly undertake. 

The violent conduct described in Trial Exhibits 39 and 40 was not carried out to obtain 

or protect controlled substances, nor was it carried out to subdue a competitor. The violent 

conduct at issue, assuming it actually occurred, was carried out by members of the trafficking 

network to gain or maintain power within the organization. The politicking of a multi-national 

drug trafficking network falls outside the scope of the criminal activity the Defendant agreed to 

jointly undertake. Fraudulent conduct committed by a company’s board members would not 

implicate that same company’s uninvolved entry-level employees; likewise, violent conduct 

committed or ordered by the higher ups of a drug trafficking organization do not implicate 

uninvolved street level dealers.1

 As such, applying the § 2D1.1(b)(2) enhancement based on 

the violent conduct described in Trial Exhibits 39 and 40 would be improper. 

1

 The Government seemingly argues that the violent conduct falls within the scope of the agreed upon 

joint conduct because it occurred due to a money dispute “and the primary purpose of any drug 

conspiracy is to make money from illegal drug distribution.” Gov’t’s Mot. 4. However, if a defendant 

charged with drug trafficking could be sentenced for any conduct that somewhat relates to making 

money, the application of § 1B1.3(a)(1)(B) would have no limits. This is contrary to Seventh Circuit 

caselaw, which generally imposes limits on the application of § 1B1.3(a)(1)(B). For example, in United 

States v. Davison, the Seventh Circuit explained that if the defendant “neither did nor agreed to do 

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The Government, in addition to its joint conduct argument, also contends that 

“information provided by Bates and the proffer information from Lewis” shows that the 

Defendant was directly involved in violent conduct. Gov’t’s Mot. 3 n.1. The statements 

referenced by the Government are not before the Court; therefore, the Court cannot determine 

whether they support the application of a § 2D1.1(b)(2) enhancement. 

CONCLUSION 

 For the foregoing reasons, the Court DENIES the Government’s Supplemental Motion 

Regarding Violence Enhancement [ECF No. 508]. 

SO ORDERED on January 13, 2021. 

s/ Theresa L. Springmann 

JUDGE THERESA L. SPRINGMANN 

UNITED STATES DISTRICT COURT 

anything to promote sales by the other gang members, their sales (which together with his sales 

exceeded the 8.4 kilogram limit for a sentence reduction) were not relevant conduct of his, even if 

foreseeable.” 761 F.3d at 686. This confirms that the actions of other members of a drug trafficking 

organization do not automatically constitute agreed upon joint conduct simply because they relate to 

money. 

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