FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APR 25 2000 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ Nos. 97-2873

________________________ D. C. Docket No. 96-00096-CR-ORL-18 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ROBERT WILLIAM YEAGER, ROY ROBERT YEAGER, JEFFREY CHRISTOPHER YEAGER, DUANE C. YEAGER, and BEVERLY DENISE YEAGER, Defendants-Appellants.

_______________ No. 97-2894

_______________ D.C. Docket No. 96-00096-CR-ORL-18 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ROY ROBERT YEAGER, a.k.a. Buddy, Defendant-Appellant.1 Honorable J. Owen Forrester, U.S. District Judge for the Northern District of Georgia, sitting by designation. 2 ________________________ Appeals from the United States District Court for the Middle District of Florida

_________________________ (April 25, 2000)
Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER 1 , District Judge. PER CURIAM In this factually complex, multi-defendant direct criminal appeal, we address one issue in this published opinion, and re solve all other claims on appeal in an unpublished appendix. The one matter that warrants publi cation relates to Robert Williams Yeager’s challenge to the analysis used by the district court in applying the role-in-the-offense enhancement under U.S.S.G. § 3B1.1. This case is brought against various memb ers of what was denominated in the indictment as the Yeager organization. It was alleged that this organization, operating from locations in rural mid-Florida, engage d in the large-scale theft of commercial trucks and tractor-trailers, interstate transportation of these vehicles and their parts, arson, homicide, the manufacture and distri bution of methamphetamine, and insurance3 fraud. It was alleged that Robert William Yeager (hereinafter “Robert Yeager”) directed the activities of the organization. Robert Yeager’s convictions were divi ded into seven groups for sentencing, an arrangement which he does not oppose. (R29-35). Group One represented the drug offenses, including Robert Yeager’s conviction for participation in a methamphetamine conspiracyin violation 21 U.S.C. § 846. This group had the highest adjusted offense level and was ther efore the focus of the court at sentencing. The trial court set Robert Y eager’s base offense level for Group One at 32, calculated based upon the amount of methamphetamine attr ibuted to him. (R29-60). The court enhanced his offense level by a two-le vel increase for possession of a dangerous weapon, a four-level increase for an aggravating role in the offense, and a two-level increase for obstruction of justice. (R29- 35-46; 59-60). The court as a result found Robert Yeager’s adjusted offense leve l for Group One to be 40. (R29-59-60). Robert Yeager contends on appeal that th e district court erred in adjusting his offense level under Group One upward by four levels under U.S.S.G. § 3B1.1(a) for his role in the offense. He asserts thatthere was no evidence presented at trial or sentencing upon which it could be determined that he was an organizer or leader of the methamphetamine conspiracy. He argues that the district court improperly relied4 upon his role in the overall RICO conspiracy to enhance his offense level for the drug convictions. The government relies upon the Seventh Circuit decision in United States v. Damico , 99 F.3d 1431 (7 thCir. 1996), cert. denied , 519 U.S. 1151 (1996), in support of its contention that Robert Yeager’s adjusted offense level for Group One was properly calculated. The court in Damico considered the i ssue raised by Robert Yeager in the instant appeal: Whether U.S.S.G. § 2E1.1 requires that a defendant’s role in the offense be separately judged with respect to each offense underlying his RICO conviction, as opposed to being judged with respect to the overall RICO conspiracy. Id. at 1435-36. The Seventh Circuit de termined that “the predicate-bypredicate approach of [U.S.S.G. § 2E1. 1] applies . . . only for the purpose of establishing a RICO defendant’s base o ffense level, and not for the purpose of applying the Chapter Three adjustments.” Id. at 1438. We agree with the reasoning of the Seventh Circuit. The first step in applyi ng the Sentencing Guidelines is to determine the applicable offense guideline and ascertainthe base offense level, applying any appropriate specific offense characteristics, cross references, and special instructions contained in that particular gui deline. U.S.S.G. § 1B1.1(a)-(b).5 Robert Yeager was convicted under thirty-three separate counts, Count One being a conviction for RICO. The offense gui deline applicable to RICO is set forth in U.S.S.G. § 2E1.1, and in this case it is ascertained from the offense level applicable to the underlying racketeering activity. The district court determined that, based upon the amount of drugs attributable to RobertYeager, his base offense level for the methamphetamine conspiracy was 32. The district court then increased the o ffense level by two leve ls, pursuant to the specific offense characteristic applicable to possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1). Based upon the findings of the district court, the base offense level for the underlying drug conspiracy was set at 34. As this is higher than the alternative minimum level provided for inU.S.S.G. § 2E1.1(a)(1), this is the base offense level to be used. The district c ourt determined 34 to be the offense level without applying the Chapter 3 adjustment for role in the drug offense at this stage of the calculation. Therefore, the sentencing court never dete rmined that Robert Yeager was a leader or organizer of the drug conspiracy. Instead, the district court applied the ad justments set forth in Parts A, B, and C of Chapter Three to Count One. See U.S.S.G. § 1B1.1(c). The court determined that Robert Yeager was a leader or organizer of the overall RICO c onspiracy and applied a four-level increase under U.S.S.G. § 3B1.1(a).2 The other issues on appeal are addressed in a separate, unpublished appendix, which sets out the resolution of this appeal with respect to the several appellants. 6 Robert Yeager argues only on appeal that there was insufficient evidence of his leadership role in the drug conspiracy; he does not deny his leadership role in the overall RICO conspiracy. Because we agree with the Seventh Circuit in Damico that it is appropriate to judge a RICO defendant’s role in the offense with respect to the overall RICO conspiracy for the purpose of applying an enhancement under U.S.S.G. § 3B1.1(a), we reject this challenge by Robert Yeager.
SO ORDERED. 2