United States v. Kittoe , 76 F. App'x 430 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-26-2003
USA v. Kittoe
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3556
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3556
UNITED STATES OF AMERICA;
v.
ALBERT KITTOE,
a/k/a "Kwesi"
ALBERT KITTOE,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Crim. No. 99-cr-00704
District Judge: The Honorable Mary Little Cooper
Submitted Under Third Circuit LAR 34.1(a)
September 11, 2003
Before: ALITO, BARRY, and AM BRO, Circuit Judges
(Opinion Filed: September 26, 2003 )
OPINION
BARRY, Circuit Judge
Appellant Albert Kittoe was charged in a ten-count superceding indictment with
various crimes relating to his role in a conspiracy to import and export cocaine. On
December 19, 2001, Kittoe pled guilty to Count One of the superceding indictment,
charging conspiracy to distribute and to possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846. During the Rule 11
proceeding, Kittoe expressly admitted that, in furtherance of the conspiracy, he had
purchased kilogram quantities of cocaine, packaged the cocaine in bed sheets for export,
recruited couriers to deliver the cocaine to distributors in London, received money that
the couriers brought back from the London distributors, and paid the couriers a fee for
their services.
Sentencing took place on August 29, 2002. The presentence report (PSR)
recommended a two-level enhancement in Kittoe’s offense level for his role as a
“manager or supervisor” in the conspiracy, pursuant to section 3B1.1(c) of the Sentencing
Guidelines.1 In support of this recommendation, the PSR detailed extensive facts
concerning Kittoe’s recruitment and direction of the couriers transporting cocaine to
Europe. Although Kittoe filed no written objections to the PSR, Kittoe’s counsel argued
1
Section 3B1.1(c) of the Sentencing Guidelines provides for a two-level sentencing
enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any
criminal activity” that did not involve “five or more participants or was otherwise
extensive.”
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at sentencing that the two level adjustment was not warranted because other co-
conspirators had played greater leadership roles in the conspiracy, and Kittoe had been
under the direction of these other co-conspirators.
After considering counsel’s argument, the District Court, relying on the facts of the
conspiracy as set forth in the PSR, found that Kittoe had acted as a manager or supervisor
for purposes of the section 3B1.1(c) enhancement based on his conduct in purchasing
cocaine, preparing it for export, recruiting couriers, providing the couriers with airplane
tickets and travel funds, arranging for the couriers to meet European distributors, and
arranging for the couriers to return to the United States with the proceeds of the cocaine
sales. After applying the two-level enhancement and a three-level reduction for
acceptance of responsibility, the Court found that Kittoe’s total offense level was 33,
which, considering his criminal history category of I, resulted in a sentencing range of
135 to 168 months. The District Court sentenced Kittoe to 144 months imprisonment,
five years of supervised release, a $1,000 fine, and a $100 special assessment.
Kittoe argues that the District Court erred in finding that he was a manager or
supervisor for the purposes of the two-level enhancement under section 3B1.1(c) of the
Guidelines. He contends, more specifically, that the District Court failed to properly
consider the factors listed in the commentary to section 3B1.1 in making its
determination. We review the District Court’s findings of fact supporting a sentencing
enhancement for clear error, but apply plenary review to its interpretation of the
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Sentencing Guidelines. United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir. 1995).
We will find the District Court’s factual findings clearly erroneous only if “we are ‘left
with the definite and firm conviction that a mistake has been committed.’” United States
v. Bass, 54 F.3d 125, 128 (3d Cir. 1995) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)). 2
Upon review of the record, we discern no error in the District Court’s
interpretation and application of section 3B1.1(c). In determining that Kittoe was a
manager or supervisor, the District Court, contrary to Kittoe’s allegations, expressly
considered the relevant factors set forth in the commentary to section 3B1.1:
the exercise of decision making authority, the nature and
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 the planning or organizing of
the offense, the nature and scope of the illegal activity, and the
degree of control or authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. Although the District Court recognized that not all of the
factors were present in Kittoe’s case, it concluded that most of them were, justifying the
enhancement. This conclusion comports with our precedent. See Bass, 54 F.3d at 128(“Evidence of every factor is not a prerequisite to a finding that the defendant is a leader
or organizer under § 3B1.1 . . . .”).
Kittoe’s argument that he was not a manager or supervisor simply because he was
2
We have jurisdiction over Kittoe’s appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
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not the primary leader or organizer of the conspiracy misconstrues what is required. A
defendant need not be the primary leader of the conspiracy for the enhancement to apply.
Rather, “the enhancement is only appropriate if the defendant directed and controlled at
least one individual.” United States v. Bethancourt, 65 F.3d at 1081.
With the appropriate legal standard in mind, we conclude that the District Court’s
factual finding that Kittoe indeed played a managerial or supervisory role in the
conspiracy was not clearly erroneous. Rule 32(i)(3)(A) of the Federal Rules of Criminal
Procedure provides that in imposing sentence, a District Court “may accept any
undisputed portion of the presentence report as a finding of fact.” See also United States
v. Watkins, 54 F.3d 163, 166-67 (3d Cir. 1995) (“It is well established . . . that a
sentencing court may rely on the facts set forth in the presentence report when their
accuracy is not challenged by the defendant.”). Because Kittoe did not file objections to
the PSR, the District Court was entitled to rely on its extensive descriptions of his
supervision of the co-conspirator couriers. Moreover, Kittoe expressly admitted at his
plea hearing that he had purchased cocaine, packaged it for export, recruited couriers to
deliver it, and paid the couriers for their services. These admissions, combined with the
uncontested facts contained in the PSR, are sufficient to support the District Court’s
factual determination.
We will affirm the judgment of sentence.
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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
_________________________________
Circuit Judge
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