United States v. McCormick , 773 F.3d 357 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2504
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHANIE L. McCORMICK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Joseph M. Bethony and Gross, Minsky & Mogul, P.A. on brief for
appellant.
Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.
December 10, 2014
SELYA, Circuit Judge. This is a single-issue sentencing
appeal in which the defendant challenges only the district court's
enhancement of her guideline sentencing range (GSR) through a two-
level role-in-the-offense adjustment for leading, organizing,
managing, or supervising a criminal activity. See USSG §3B1.1(c).
Discerning no clear error in the district court's essentially
factual determination, we summarily affirm the defendant's
sentence.
The silhouette of the case is easily sketched. In
January of 2013, defendant-appellant Stephanie L. McCormick and her
cousin, Anthony Post, began partying with drugs. Oxycodone was
their drug of choice, and when their supply ran out, the pair,
after considering other alternatives, decided to rob a local
pharmacy. A vehicle was needed and the defendant recruited an
acquaintance, Candice Eaton, to drive them in her car.
The record is tenebrous as to what Eaton knew and when
she knew it. According to the defendant, Eaton thought (when she
agreed to help) that Post and the defendant were going to "rip
someone off" to get drugs, not that they were going to rob a
pharmacy.
On January 22, Eaton, accompanied by a minor identified
as "C.P.," drove Post and the defendant to a CVS pharmacy in
Augusta, Maine. While the others waited in the car, Post walked
into the store and presented a note to staff members. The note
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commanded them to "put [a]ll oxycodone in a bag" and threatened
that he would "start shooting" otherwise. The pharmacy workers
complied, filling a bag with bottles containing several hundred
pills. When Post returned, the defendant — in full view of Eaton
and C.P. — began emptying the contents of the purloined bottles of
prescription drugs into the CVS bag. Eaton, following commands
from the defendant, drove the car to her own apartment, stopping
once en route so that an errand demanded by the defendant could be
performed and once again so that the occupants of the car could
"get high." When the contraband was divvied up, Eaton received a
share.
The culprits were quickly brought to book. On March 21,
2013, the defendant waived indictment and entered a guilty plea to
an information charging her with Hobbs Act robbery (specifically,
that she aided and abetted the taking of controlled substances from
the pharmacy through the use of threatened violence) in violation
of 18 U.S.C. §§ 2, 1951.
The preparation of the presentence investigation report
generated some controversy. The parties' dispute centered on the
dimensions of the appropriate GSR. Everyone agreed to most of the
components: a base offense level of 20, see USSG §2B3.1(a); a two-
level enhancement for a threat of death made during the robbery,
see id. §2B3.1(b)(2)(F); a one-level enhancement because a
controlled substance was involved, see id. §2B3.1(b)(6); a three-
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level downward adjustment for acceptance of responsibility, see id.
§3E1.1; and a criminal history category of I. The consensus
stopped there; the parties wrangled about the appropriateness vel
non of a two-level role-in-the-offense enhancement under USSG
§3B1.1(c).
The presence or absence of this role-in-the-offense
enhancement made a significant difference in the dimensions of the
defendant's GSR. Without this enhancement, the GSR would be 33 to
41 months. With it, the GSR would be 41 to 51 months.
The district court proceeded to hold a hearing to resolve
this contretemps. It subsequently issued a sentencing order
finding the section 3B1.1(c) enhancement warranted. See United
States v. McCormick, No. 13-51, 2013 WL 6062104, at *1 (D. Me. Nov.
18, 2013). The court's rescript was thorough and detailed: it
found, inter alia, that the defendant had organized the criminal
enterprise, controlled Post's activities, recruited both Eaton and
C.P., and occupied a leadership role vis-à-vis Eaton. See id. at
*19-20.
On December 3, 2013, the district court convened the
disposition hearing. In line with its earlier findings, the court
set the defendant's GSR at 41 to 51 months. After hearing from the
attorneys and the defendant, the court sentenced the defendant to
a 46-month term of immurement. This timely appeal ensued.
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Our analysis begins with familiar lore. The government
has the burden of proving the propriety of an upward role-in-the-
offense adjustment. See United States v. Tejada-Beltran, 50 F.3d
105, 113 (1st Cir. 1995). It must carry this burden by a
preponderance of the evidence. See id. This court, in turn,
reviews the district court's underlying factual findings for clear
error and that court's resolution of legal questions (including its
interpretation and application of the sentencing guidelines) de
novo. See United States v. Paneto, 661 F.3d 709, 715 (1st Cir.
2011). Where the raw facts are susceptible to competing
inferences, the sentencing court's choice between those inferences
cannot be clearly erroneous. See United States v. Ruiz, 905 F.2d
499, 508 (1st Cir. 1990).
The guideline provision that lies at the heart of this
appeal, USSG §3B1.1(c), states that "if the defendant was an
organizer, leader, manager, or supervisor in any criminal
activity," her offense level should (with exceptions not relevant
here) be increased by two levels. Such an increase is warranted
only if the government proves that "(1) the criminal enterprise
involved at least two complicit participants (of whom the defendant
may be counted as one), and (2) the defendant, in committing the
offense, exercised control over, organized, or was otherwise
responsible for superintending the activities of, at least one of
those other persons." United States v. Cruz, 120 F.3d 1, 3 (1st
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Cir. 1997) (en banc). Applying this paradigm, the district court
found that the defendant's relationships with both Eaton and Post
were independently sufficient to ground the section 3B1.1(c)
enhancement. See McCormick, 2013 WL 6062104, at *20. For
simplicity's sake, we focus on the district court's assessment of
the defendant's relationship with Eaton. As we explain below, this
assessment was unimpugnable.
The defendant admits — as she must — that the hatched
scheme for the pharmacy robbery involved at least two participants.
She claims, however, that Eaton was not a culpable participant and
that, in all events, she did not superintend Eaton's activities.
The record belies this two-pronged claim.
Eaton's activities can be viewed in two discrete
segments. First, she was involved prior to the actual holdup; that
is, she furnished the vehicle and drove Post and the defendant to
the scene of the crime. Second, she was involved subsequent to the
actual holdup; that is, she drove the getaway car and split the
spoils with the main protagonists. While either set of activities
would likely have supported a finding of complicity in the crime,
see, e.g., United States v. Sanchez, 354 F.3d 70, 74 (1st Cir.
2004); United States v. Neal, 36 F.3d 1190, 1211 & n.19 (1st Cir.
1994), the enhancement can readily be justified on the second set
of activities alone.
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The court found that Eaton learned of the pharmacy
robbery, at the latest, when Post ran from the store and returned
to the car, at which time the defendant began dumping the contents
of stolen bottles of prescription drugs into a CVS bag. From at
least that point forward, it is crystal clear that Eaton was a
knowing and willing participant in the heist: she drove the getaway
car and pocketed a share of the drugs. Based on these events, the
district court concluded that Eaton was an accessory after the fact
to the robbery.
This conclusion is fully supportable1 — and it lays an
adequate foundation for the section 3B1.1(c) enhancement. A party
who knowingly assists in a criminal enterprise is responsible as an
accessory. See United States v. Hall, 101 F.3d 1174, 1178 (7th
Cir. 1996); United States v. Lewis, 68 F.3d 987, 990 (6th Cir.
1995). We hold, as a matter of first impression in this Circuit,
that such a level of engagement is sufficient to qualify the
accessory as a "participant" in a criminal activity for purposes of
an upward role-in-the-offense adjustment under section 3B1.1. See
United States v. Bennett, 143 F. App'x 200, 204 (11th Cir. 2005);
Hall, 101 F.3d at 1178; United States v. Boutte, 13 F.3d 855, 860
(5th Cir. 1994).
1
Indeed, Eaton pleaded guilty to an accessory after the fact
charge and was sentenced accordingly.
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In an effort to dodge this bullet, the defendant argues
that there is no respectable footing in the record for a finding
that she "led" Eaton. This is magical thinking. The record
reflects with conspicuous clarity that Eaton — who had been
recruited by the defendant in the first place — took directions
from the defendant, drove where she was told to drive, and allowed
the defendant to use her (Eaton's) apartment as a safe house for
dividing the stolen pills. Last — but not least — Eaton followed
the defendant's lead as to how the pills were to be split, in
effect letting the defendant dictate her (Eaton's) share of the
spoils.
We need go no further. The record is replete with
circumstantial evidence adequate to support a finding that, both
before and after the pharmacy robbery, the defendant was in control
of the entire operation. Eaton's culpable participation, under the
defendant's hegemony, was more than enough to warrant the district
court's imposition of a two-level role-in-the-offense enhancement.
Affirmed. See 1st Cir. R. 27.0(c).
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