Sentencing in federal drug cases can sometimes pose difficult challenges for the judges imposing sentence. This was illustrated in a December 12, 2017 decision, United States v. Collins, by the Seventh Circuit Court of Appeals.


There was nothing especially exceptional about the drug charges brought against Marcus Collins by the federal government in the State of Illinois. The appeals court stated that between 2013 and 2014, over several months, law enforcement authorities used a confidential informant to set up “three controlled buys of powder cocaine and one of crack cocaine” with Collins.


Deal Made with Confidential Informant


It was typical law enforcement procedure. The confidential informant was monitored during two of the controlled buys made from Collins. The informant called Collins, set up a meet, and purchased the requested cocaine. From all appearances, it was a straight up drug transaction between the two men with no one else involved.


The other two controlled buys were not as simple. The informant called Collins in November 2013 only to learn that he “was out of town.” Collins, however, wanted to make the sale. He contacted a friend named Robert Palmer who was “apparently another street-level drug dealer.” The Seventh Circuit noted that Palmer was obligated to Collins for some “unspecified favor.” The two men, Collins and Palmer, operated “independently” of each other in their drug trade.


Collins called in the favor owed to him by Palmer by telling his friend to pick up the cocaine, deliver it to the informant, and collect the drug payment. Collins would later tell federal prosecutors that Palmer had helped him “just that one time” in a “favor for a favor” context. Prosecutors, as the appeals court pointed out, “did not offer evidence to contradict Collins’s account.”


The fourth, and final controlled buy, was also different from the first two buys. In April 2014, the informant asked Collins for crack cocaine. Collins told him that he did not deal in crack but knew someone who did. He sent the informant to another dealer, providing him with the address and driving directions to the other dealer’s house. The informant purchased crack from that dealer but, as the appeals court observed, there was no evidence that “Collins profited from the sale or referral.”


Defendant Objects to Supervisory Role


Collins was arrested, indicted and entered into a plea agreement with the government. He pled guilty to distributing cocaine and at least 28 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The judge imposed the statutory minimum of 120 months pursuant to § 841(b)(1)(B). Collins then appealed the judge’s decision to accept the Sentencing Guidelines calculation in his case that raised his offense level by two levels under the U.S. Sentencing Guideline § 3B1.1(c) because of his “supervisory role” in the drug transactions.


The Seventh Circuit pointed out that while the sentencing guidelines have been advisory since 2005 with Booker v. United States, § 3B1.1(c) “had significant consequences under the terms of a statute that is mandatory, not advisory. The supervisory role enhancement disqualified Collins from safety-valve relief from the statutory minimum sentence … We generally review a district court’s determination on the guidelines for aggravating and mitigating role for clear error … but if the court acted on the basis of a misunderstanding of the legal standard, we may need to remand for reconsideration under the proper legal standard.”


Trial Court Misunderstood Legal Standard for Supervisor Role


The sentencing judge’s “misunderstanding of the legal standard” involved the manner in which he construed U.S.S.G § 3B1.1(c). The Seventh Circuit explained:


“This is an atypical drug case in which the judged based the role enhancement for defendant Collins on a legal error. Without any criminal organization or hierarchy, Collins’s isolated, one-time request to another independent dealer to cover for him on a sale did not make him a supervisor or manager within the meaning of the guideline (§ 3B1.1(c)).”


Probation Officer Started Problem


This legal misunderstanding began with a probation officer’s “misunderstanding” of the way § 3B1.1(c) should be applied and put that misunderstanding in a Presentence Report. Under this guideline, when a defendant was “organizer, leader, manager, or supervisor in any criminal activity,” he or she is subject to a two-level enhancement of their offense level. And once this enhancement level is applied, the defendant cannot obtain a “safety valve” guideline adjustment under 18 U.S.C. § 3553(f)(4). The probation officer in the Collins case matter-of-factly recommended a two-level enhancement under § 3B1.1(c) because Collins directed Palmer and the second drug dealer to sell drugs to the informant.


The Seventh made this pertinent observation: “… One doctor may cover one patient for another, or one lawyer may cover one case for another, without turning one into a supervisor of the other.”


The appeals court applied this analogy to Collins’s case.


Erroneous Application of Enhancement Prevents Safety Valve


“The erroneous application of the supervisory role enhancement was not harmless,” the court said. “It disqualified Collins from safety-valve relief, and we need not speculate whether the adjustment actually affected the sentence. The judge explained that if the safety valve had applied, he would have imposed a lighter sentence…”


There is every indication that the Justice Department under Attorney General Jeff Sessions’ tough on drugs mantra will attempt to use supervisory role and every other possible enhancement to expose every dealer in a drug trafficking case to the maximum possible sentence. Defense attorneys must begin the settlement discussions with the government by forcing a clear understanding about the government’s position on relevant sentencing enhancements. Federal judges, like the one in the Collins case, routinely accept the Presentence Report’s recommendation calling for enhancements, like the application of § 3BI.I(c), when the fact-situation actually make the guideline provisions inapplicable.


  • 3B1.1(c) issues must be vigorously contested. Sentencing decisions cannot be left up to probation officers who misunderstand the federal sentencings guidelines.