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Judge Posner Trusts Judges' Sentence Enhancement Instincts

By Robyn Hagan Cain on June 12, 2012 | Last updated on March 21, 2019

Criminal masterminds may make the big bucks, but the minions get out of jail faster.

The U.S. Sentencing Guidelines provide harsher sentences for a defendant who is found to be an organizer, leader, manager, or supervisor of criminal activity.

This week, the Seventh Circuit Court of Appeals addressed answered the question, "Who qualifies as an "organizer, leader, manager, or supervisor?" with ambiguous aplomb.

The Sentencing Guidelines state "titles such as "kingpin" or "boss" are not controlling. Factors the court should consider include the 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."

According to the Guidelines, there can be more than one person who qualifies as a leader or organizer within a conspiracy or organization. Therein lies the problem for Antonio Figueroa, who was hit with a sentence enhancement on drug trafficking charges due to his "leadership" in the operation.

The sentencing judge in Figueroa's case gave him the two-level enhancement for organizers, leaders, managers, and supervisors in an organization with fewer than five participants and not "otherwise extensive".

Figueroa argued he wasn't a leader, but a mouthpiece for the real leader, a man named Primo.

Judge Richard Posner, writing for the Seventh Circuit panel, reasoned that Figueroa qualified for the sentence enhancement because he "supervised a man named Cruz, who obtained heroin in Texas and transported it to [Figueroa] in Chicago for further distribution." Thus, he was a middle manager in a drug enterprise."

(Judge Posner thought that Figueroa should have received a three-level enhancement because the operation almost certainly involved more than five people.)

The Seventh Circuit opinion says that its unnecessary to turn to the dictionary and jurisprudence -- as the court has done in the past -- to figure out who qualifies as a manager or supervisor. A supervisor or manager tells people what to do and determines whether they've done it. That was the Figueroa's job, so the court ruled that the sentence enhancement was appropriate.

How do you feel about Judge Posner's instinctual approach to sentencing?

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