United States Court of Appeals

For the Eighth Circuit

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No. 18-1672

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Zachary Troy Fennell

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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Submitted: February 15, 2019

Filed: July 3, 2019

[Unpublished]

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Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

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PER CURIAM. 

Zachary Troy Fennell pleaded guilty to conspiracy to distribute

methamphetamine, possession with intent to distribute methamphetamine, and being

a felon in possession of a firearm. Fennell received methamphetamine from

coconspirators through the mail at multiple addresses and then redistributed the drugs

throughout the Columbia, Missouri area. Police arrested Fennell and his associates
following the controlled delivery of a drug-filled package to a residence shared by

Fennell and his girlfriend.

Fennell’s presentence report (PSR) indicated a total offense level of 39,

including a four-level leadership role enhancement pursuant to U.S.S.G. § 3B1.1(a).

Fennell objected to the enhancement, but the district court overruled his objection 1

and calculated a Guidelines range of 324–405 months’ imprisonment. Upon

consideration, the court varied downward, imposing two 280-month sentencesfor the

conspiracy and possession charges and one 120-month sentence for the felon-inpossession charge, to be served concurrently. On appeal, Fennell objects to the

district court’s inclusion of the leadership role enhancement and argues the court

imposed a substantively unreasonable sentence. We disagree and affirm.

“We review a district court’s factual findings supporting a leadership

enhancement for clear error and its legal conclusions de novo. The government must

prove a leadership enhancement is warranted by a preponderance of the evidence.”

United States v. Adetiloye, 716 F.3d 1030, 1037 (8th Cir. 2013) (internal citation

omitted). 

In determining whether the Government has met its burden, the district

court may accept any undisputed portion of the PSR as a finding of fact.

Unless a defendant objects to a specific factual allegation contained in

the PSR, the court may accept that fact as true for sentencing purposes. 

United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008) (cleaned up).

Section 3B1.1(a) calls for a four-level increase to a defendant’s offense level

“[i]f the defendant was an organizer or leader of a criminal activity that involved five

The Honorable Stephen R. Bough, United States District Judge for the

1

Western District of Missouri.

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ormore participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In determining

whether a defendant qualifies for the enhancement, a district court should consider

the defendant’s 

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. 

U.S.S.G. § 3B1.1, cmt. n.4. A district court need not “expressly discuss every factor

listed in the application notes to § 3B1.1.” United States v. Allen, 641 F. App’x 675,

677 (8th Cir. 2016) (per curiam). 

“We interpret the terms ‘organizer’ and ‘leader’ broadly. For a defendant to be

an organizer or leader, he need only direct one other participant.” Adetiloye, 716 F.3d

at 1037 (internal citation omitted). “If a defendant assumed organizing or leadership

functions, such as recruiting others to join the criminal activity, a four-level

enhancement is justified.” United States v. Garcia, 512 F.3d 1004, 1005 (8th Cir.

2008).

Fennell concedesthat he conspired to distribute methamphetamine and that the

conspiracy involved five or more participants. But, Fennell objects to the court’s

finding that he was the conspiracy’s “leader,” claiming that “[a]ll members of the

conspiracy were free to do whatever they wanted to do in the management of their

own individual controlled substance retail businesses.” Appellant’s Br. at 9. Fennell

further claims that the district court developed an insufficient record to conclude he

was a leader in the conspiracy. Fennell is incorrect on both points. The record does

not support Fennell’s claim that his associates acted independently. The record does,

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however, show the district court had a sufficient factual record and adequately

addressed the leadership issue in its sentencing analysis. 

At sentencing, the district court stated that it had reviewed the PSR, and it

heard argument from both sides on the leadership issue. It also specifically asked

Fennell about certain aspects of his relationship with his coconspirators. We have

previously affirmed the imposition of the leadership role enhancement where the

defendant recruited associates, Garcia, 512 F.3d at 1006; directed another individual

to transfer money and “receive and hold mail” on his behalf, Adetiloye, 716 F.3d at

1037; instructed coconspirators on how to process drug proceeds, United States v.

Lopez, 328 F. App’x 352, 354 (8th Cir. 2009) (per curiam); and supplied “dealerquantities” of drugs to others, Razo-Guerra, 534 F.3d at 976. These facts are all

present in this case.

The PSR contained multiple uncontested allegations supporting Fennell as a

conspiracy leader. Fennell sold drugs to individuals who would then resell those

drugs to others. After Fennell was assaulted and robbed, three men came from

California to assist Fennell with his operation, and Fennell provided them with

firearms. Fennell instructed certain coconspirators to deposit and transfer drug

proceeds on his behalf. And, Fennell once instructed a coconspirator to write “return

to sender” on a drug delivery and then requested that the individual dispose of

evidence associated with that package. Additionally, following his arrest, Fennell

instructed another coconspirator to remove evidence from both her residence and his

residence. Fennell did not object to these PSR allegations. Consequently, the court

could “accept [them] as true for sentencing purposes.” United States v. Moser, 168

F.3d 1130, 1132 (8th Cir. 1999). 

At sentencing, Fennell also conceded that he had directed that drugs be mailed

to different women’s addresses for him to retrieve. Fennell, though, claimed the

women had “volunteered” to receive his packages. Sentencing Tr. at 5, United States

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v. Fennell, No. 2:15-cr-04067-SRB-1 (W.D. Mo. Apr. 16, 2018), ECF. No. 525. On

this record, we conclude that the district court considered Fennell’s decisionmaking

authority, the nature of his participation, as well as his recruitment and organizing

activities. The district court did not err in finding that Fennell’s sentence should be

enhanced because of his role as a leader of the conspiracy.

Fennell’s claim that the district court imposed a substantively unreasonable

sentence also lacks merit. “We review the substantive reasonableness of a sentence

under the deferential abuse-of-discretion standard . . . .” United States v. Lazarski,

560 F.3d 731, 733 (8th Cir. 2009). Fennell argues that the Guidelines recommend

disproportionately high sentences for methamphetamine distribution as compared to

the distribution of other dangerous drugs. The district court, in fact, agreed with

Fennell, and this agreement underlay the court’s substantial 44-month downward

variance from the low-end Guidelines range of 324 months. As we have repeatedly

noted, where a court varies downward, “it is nearly inconceivable that the court

abused its discretion in not varying downward still further.” Id. The district court did

not abuse its discretion. 

The judgment of the district court is affirmed.

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