# Un ited State s Co urt o f Appea ls

F or the Seve nth Circuit Chicago, Illin ois 60604 Arg ued March 2, 2010 Deci ded Jun e 29, 2010

Before
DIANE P. WOOD, Circ uit Judge

ANN CLAIRE WI LLIAMS , Circ uit Judge
DAVID F. HAMILTON, Circ uit Judge

No. 09-2260

UNITED STATES OF AMERI CA, Plaintiff-Appellee,

v.

SAU NDRA FALLS,

Defen dant-Appellant

. Appeal from the United Stat es Di stric t Courtfor t he Northern Di stric t of Illinoi s, Eas ter n Divis i on.

No. 06 CR 684

Blanch e M. M anning, Judge

.

O R D E R

Saundra Fal l s p a rti c i p ated in an ext ensi ve drug-dealing oper ation affi li ated wi th the Mic key Cobras street gang. The g r o up o p erat ed out of the Dearborn Homes housing proj ects in Chi cago; i t sold a particu larly powerful type of heroin mi xed wi th fentanyl. Falls N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i t e d o n ly i n a c c o r d a n c e w i t h F e d

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was indi cted for her ro le in the conspi racy on Sept ember 20, 2006. After efforts to cooper ate wi th the prosecutor s fell flat, she enter ed a blind plea of gui lty on Sept ember 12, 2008. On appeal, she arg ues only that the di stric t co ur t err ed by giving her an aggr avat ing-role adjustment under U.S.S .G. § 3B1.1, for being a manager or supervis or
. The di stric t court’s conclu si on, however , was s upporte d by the ev i dence, and s o we affi rm the sentence.

I

Fr om 1998 to 2006, the Mic key Cobras e mp l o y e d dozens of people to di strib ute heroin and fentanyl to resi dents of the Dearborn Homes proj ects. The gang market ed and sold several di fferent “product lines,” each of whi ch had a characteris tic mi xtur e of cutting agents and packagin g. Co-defendant Larr y Smi th was a hi gh-ranking member of the gang; he contro lled the sale and di strib uti on o f t wo l ines, “Drop Dead”and “Lethal Injection.” These line s a l one gr ossed between $4,000 and $9,000 a day. At some poin t Smi th sub sti tuted enough fentanyl in hi s product that a numb er of people di ed from ov erdo ses. A gr oup of federal and local law enforcement offi cers raided the Dearborn Homes in June 2006; t ho se raids led event ually to indi ctments chargin g 32 people for their ro les in the conspi racy. All o f the defendants pl eaded gui lty ex cept for o ne, who remains a f ugi tive.

Falls work ed di rectly for Smi th. She received from tr anspo r t e r s he ro in that was packaged and ready for sale, and she then stor ed that product in one of the gr oup’s stash houses – an apartment at the Dearborn Homes leased by another woman. Di strib utor s then pi cked up the drugs from the stash house and deli ver ed them to the ret ai lers. Later, the di strib utor s would turn their proceeds ov er to Falls, who then gav e the money to Smi th’s brot her Aar on. Smith pai d Falls a fi xed amount, usually about $100 per day.

Li ke her co-de fe ndants, Falls pleaded gui lty to conspi racy to possess a contro lled sub stance wi th intent to di strib ute, see 21 U.S.C. §§ 846, 841(a)( 1); she received a sentence of 188 months’ i mpri sonment. That sentence was based on the following cal cu l a ti on s under the Sente ncing Gui delines. The parties agr eed that the proper base offense level was 34. The probat i on offi cer then recommended a three -level increase und er U.S .S.G. § 3B 1.1(b) for Falls’s ro le as a manager or a supervis or
. Ci tin g Appli cati on N o t e 2 , the offi cer explain ed that “Ms. Falls di d not or gani ze, lead, manage, or supervis e other indi vidu als in the conspi racy; however , she di d exer ci se management responsibi li ty ov er the proper ty and assets (drugs and drug proceeds) of the cri minal or gani zation.” The probat i on offi cer also recommended a three -leve l r e d uction for acceptanc e of responsibi li ty, see U.S.S .G.No. 09-2260 Pag e 3

§ 3E1.1, bringing her ov erall offense level back down to a 34. Wi th a cri minal hi stor y catego ry of I, this led to an adv i sory sentencing rang e of 151 to 188 months.

At sentencing, the gover nment agr eed wi th the probat i on offi cer’s conclu si on that Falls’s conduc t called for the three -level increase appropr i ate for a manager or supervis or, based prim arily on h er control over both the drugs and the m oney, bu t als o based on the fact that she had “supervis or y c ontr ol over some of the w or ker s.” In supp or t of the latter contention, the gov ernment poin ted to Lukas McGee’s testim ony that Falls wa s hi s supervis or , and to Smi th’s testim ony that he asked Falls to be hi s “eyes and ears” at the Dearborn Homes and to repo rt on whether hi s sellers were outsi de selling drugs. Counsel for Falls objecte d, insi sting that her role w as ver y li mi ted. Ci tin g United States v. Fones, 51 F.3d 663 (7th Ci r. 1995), counsel assert ed that t he a dj us t me nt under § 3B1.1(b) cannot be appli ed to a defendant who managed assets unles s that defendant also exer ci sed authority
ov er another partici pant in the conspi racy. Falls, couns el arg ued, never supervis ed McGee
or anyone else, and thus was not subject to the adjustment. Counsel added that Falls was involv ed only for a bri ef ti me and w as, in fac t, a r elatively minor par tic i pant.

The dist r ict court deci ded that the gov ernment had the better of the arg ument. It explain ed i ts findings as follows:

Based upon the fact that co-defendan ts di d actually testif y that she received heroin that arr i ved into the conspi racy and then [doled] i t out to the sellers,
as I recall, there was an admi ssi on by Ms. Falls that she handled the receip ts of the drug sales an d turned them ov er t o Aar on Smith.

. . . .

. . . . Lukas M cGee di d testif y that she [Falls] was hi s supervis or
. These are some of the things that I indi cated earlier. I found hi s testim ony to be credible and consi stent. As I’v e poin ted out, she was in the ro le of apparently making sure work ers were there and were not tar dy, et cetera. I find based upon
ever ything I’v e heard thro ughout thi s entire case that she was, in fact, in that
ro le, a manager/supervisor ro le.

Becaus e Falls was a manager, the court also conclu ded that she was not eli gib le for a safetyvalv e reduction. See U.S.S .G. § 5C1.2(a)( 4).No. 09-2260 Pag e 4

II

Whether a defendant played a supervis or y ro le i s a factual deter minati on that thi s
co ur t rev i ews only for clear err or
. United States v. Wat ts, 535 F.3d 650, 660 (7th Ci r.), c e r t. denied, 129 S.Ct

. 475 (2008). Falls take s i ssu e wi th several of the inferences that the di stric t court drew from the fac ts. For example, she di sagrees w i th the di stric t c ourt ’s conclu si on that “she admoni shed or chec ked up on a tar dy work er.” Larr y Smi t h testifi ed that he asked Falls to tell him if a p a r t i cular seller “ain’t on hi s act.” Smi th explained that he needed Falls to be hi s “eyes and ears” becau se he had to stay away from Dearborn Homes becau se of an outstanding warrant. The di stric t court was of the opini on that i f serving as someone’s eyes and ears was not a supervis or y acti on, then i t was not clear what was. The di stric t court’s characterizati on of Falls’s work in pass ing di rectives from the boss along to underlings as evidenc e of supervis or y authority was entirely reasonable. See United States v. Sainz-Preciado, 566 F.3d 708, 715 (7th Ci r. 2009); United S tates v. Mat thews, 222 F.3d 305, 308 (7th Ci r. 2000).

Falls also take s i ssu e wi th the di stric t court’s finding that she supervis ed McGee. But McGee testifi ed a t the s e nte n c in g he a rin g that Falls “ov erseen my involv ement” and “made
sure my jo b was done.” She di d thi s, he sai d, by collecting the day’s proceeds from the safe in the stash house, where McGee had put the money. He testifi ed that Falls told hi m where the safe was, how to ret riev e bu nd l e s of heroin, and how to deposi t the day’s proceeds. After she explained the pro cess, however , he had li ttle communi cati on wi th her.

In Falls’s opini on, McGee’s testim ony at sentencing was contradic ted by hi s proffer statement to the effec t t ha t Ni gel McCauley recruited hi m, tr ained hi m, and was hi s supervis or
. In addi tion, McGee’s telephone recor ds shows that during hi s two-month stint wi th the conspi racy, he made 1,400 phone calls, of whi ch only ei ght were to F a l l s; Falls
never called hi m. But at most, thi s suggests that there was evid e nc e on both si des of the i ssu e, and i t was the di stric t court ’s job t o wei gh that e videnc e and come to a conclus i on. We see no clear err or in the court’ s deci si on.

Fin ally, Falls arg ues that the upward adjustme nt w a s inappropr i ate becau se she di d not play a si gni fi cant ro le in the enter pris e. “The ‘central concern’ o f § 3B1.1 i s the defendant’s relat i ve responsibi li ty for the commissio n o f the offense.” United States v. Mendoza , 576 F.3d 711, 717 (7th Ci r. 2009) (ci tation omi tte d). Falls contends that there i s no evidenc e that she p e r fo r me d any of the usu al tasks of a manager, inclu ding exer ci singNo. 09-2260 Pag e 5

deci si on-making authority, recruiting accompl i ces, clai ming a large r share of the proceeds,
or partici patin g in planning or or gani zing any acti viti es. See U.S.S .G. § 3B1.1 cmt. N.4; United S tates v. Mustread, 42 F.3d 1097, 1104-05 (7th Ci r. 1994); United States v. Brow n, 944 F.2d 1377, 1382 (7th Ci r. 1991). But Falls concedes that she occasi onally i ssu ed di rectives to other partici pants. E v e n i f another judge mi ght have come out the other way, there i s enough evidenc e in thi s record t o support t he conclu si on that t hi s judge drew.

Our last comment relat es to the questi on whether the gov ernment had to show that the defendant managed people, or i f i t would be enough for purposes of § 3B1.1 to show that she managed o nl y proper ty. In i ts presentations to the di stric t court, the gov ernment stressed the latter posi tion, even after Falls poin ted out that Appli cati on Note 2 to § 3B1.1 and Fones, 51 F.3d at 668, rules out that approach for post-1993 cases
. Falls was corr ect, but to t he exte nt that t he gov ernment er red, it had no effec t on t he ulti mate outcome. In fact, the court relied on evidenc e that Falls was also managing at least one partici pant (McGee), and that i s enough to sati sfy Appli cati on Note 2 a nd t o sh o w that i t was not rely ing exclusively on her r esponsi bi li ties wi th respect to the drugs and money.

III

Fin ding no clear err or in the di stric t court’s deci si on to increase Falls’s offense level by three poin ts for her ro le as a manager or supervis or, we A F F I R M the judgme nt o f the di stric t court

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