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United States v. Fred McGee (7th Cir. January 2021)

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Sentencing Guidelines/Role Enhancement

Fred McGee pleaded guilty to heroin and fentanyl distribution and was sentenced to 84 months in prison. He appealed his sentence, arguing that the district court erred in applying a leadership enhancement, failed to afford him a meaningful opportunity to allocute, and miscalculated his criminal history score.

The Seventh Circuit remanded for resentencing based on the district court’s error in imposing the role enhancement under 3B1.1. The Court held there was insufficient evidence to establish McGee as an organizer, leader, manager, or supervisor in the drug distribution network he was allegedly part of.

The district court had based the enhancement on McGee’s participation in the “Minneapolis offshoot” of the drug trafficking operation in Chicago, finding that McGee distributed drugs there through his own local network and recruited others to help him. On appeal, the Court held that the former only proved McGee was a “middleman” since he could have been selling drugs to other dealers in Minneapolis who then conducted their own transaction. Having a local drug trafficking network separate from a broader network does not by itself suggest control or authority over others, especially when those others are unknown.

The Court also rejected the district court’s finding that McGee, in his “intermediate role,” recruited the others since they were all employees of the same kingpin. That one of the recruits acted as a lookout did not mean McGee had influence over them, and the same applied to another participant who McGee paid to be a driver.

The parties also agreed that the court had miscalculated McGee’s criminal history score by inaccurately finding that a DUI conviction from 2007 had resulted in a sentence over 13 months, though it did not affect his criminal history category or Guidelines range.

Appeal from the Western District of Wisconsin
Opinion by Manion, joined by Easterbrook and Rovner

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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