United States v. Walter Lee Chambers, United States of America v. James Isaac Johnson , 985 F.2d 1263 ( 1993 )

MURNAGHAN, Circuit Judge,

concurring in part and dissenting in part:

In the main I agree, but in one respect concerning the sentencing of Walter Chambers, I dissent. He was given a three level enhancement called for in the Sentencing Guidelines for being a supervisor or manager. U.S.S.G. § 3Bl.l(b). Section 3B.1 of the Sentencing Guidelines calls for increases in the case of an organizer, a leader, a manager or a supervisor. The majority makes, I believe, an unwarranted assumption that § 3B.1 may refer to and covers management of inanimate objects. It appears evident, and the majority apparently agrees, that “organize, lead or supervise” must be of persons.

What authority there is is consistent that management of persons is required to bring § 3B.1 into play. Persons only, and not inanimate objects, are within the scope of supervision or management for the purposes of the Sentencing Guidelines. United States v. Fuller, 897 F.2d 1217 (1st Cir.1990); United States v. Fuentes, 954 F.2d 151 (3rd Cir.1992), cert. denied, — U.S. -, 112 S.Ct. 2950, 119 L.Ed.2d 573 (1992);¹ United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir.1990); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). Only the Eighth Circuit has appeared at one time to have ruled the other way. United States v. Johnson, 906 F.2d 1285, 1291 (8th Cir.1990). Yet, in a later ease, United States v. Rowley, 975 F.2d 1357 (8th Cir.1992), the Eighth Circuit seemed to draw back. The Rowley decision approvingly quotes the First Circuit’s conclusion that:

... [t]he defendant must have exercised some degree of control over others involved in the commission of the offense, or he must have been responsible for organizing others for the purpose of carrying out the crime. This requirement is implicit in the terms “organizer, leader, manager and supervisor,” each of which suggest the presence of underlings or subordinates.

Fuller, 897 F.2d at 1220. The Eighth Circuit in Rowley in a footnote explains that “we have always required evidence that the defendant directed or procured the aid of underlings.” Rowley, 975 F.2d at 1364 n. 7.

The Fourth Circuit in United States v. Paz, 927 F.2d 176 (4th Cir.1991), made a glancing remark on which the majority depends to depart from the holdings by the other circuits and to justify the three level enhancement given to Chambers by the district court in meting out punishment:

[E]vidence indicated that Paz controlled the money, drug products and residences where the drug trafficking was performed. From this evidence, the district court concluded that Paz was a manager of the enterprise. We are not persuaded to say that this factual determination was clearly erroneous.

Paz, 927 F.2d at 180.² In Paz, in any event, the remark: “money, drug products and residences” only addressed the sub-stantiality of the things managed, being silent as to their nature. Nothing in the holding evaluated the meaning of § 3Bl.l(b). More specifically, the Paz decision does not in any way weigh the legal distinction at issue here — namely, management of persons versus management of property. As to that by no means insignifk cant point, the Paz court appears to have assumed that “supervision” or “management,” under the Sentencing Guidelines, extended to either supervision of persons or of property, there having been no contention by the parties to the contrary.

It is undisputed that the evidence was restricted to management by Chambers of inanimate objects, i.e., of property such as the drug cocaine itself. No proof appears in the record of supervision of or management by Chambers of one or more persons.

In all events, Paz is not a holding on the precise point here involved. It, therefore, is not a binding precedent as a decision of another Fourth Circuit panel. Compare North Carolina Utilities Comm’n v. Federal Communications Com., 552 F.2d 1036, 1044 n. 8 (4th Cir.1977), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977) (holding that only an en banc court,

not a subsequent panel, has authority to overturn a previous panel’s published decision), with Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 849 (4th Cir.1974) (holding that a subsequent panel is not bound by a previous panel’s decision where that decision does not specifically address the question at hand).

It is not surprising that what authority there is, to a great extent, in fact altogether, fails to support the majority’s position. In the first place there is the effect on the meaning of “manager” of its linking with “organizer, leader or supervisor.” One rule of statutory construction is noscitur a sociis (“One may be known by the company one keeps”). Noscitur a sociis, like other rules of statutory construction, is applied to give effect to, but not to subvert or defeat, the legislative intent or purpose in enacting the statute.

“The maximum noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the acts of Congress.”

Cipollone v. Liggett Group, Inc., — U.S. -, -, 112 S.Ct. 2608, 2627, 120 L.Ed.2d 407 (1992) (Blackmun, J. concurring) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1581, 6 L.Ed.2d 859 (1961)).

The Supreme Court in Jarecki applied the doctrine in a way relevant here. At issue in Jarecki was the meaning of the word “discovery” in the following statutory phrase defining “abnormal income” under the tax code:

Income resulting from exploration, discovery, or prospecting, or any combination of the foregoing, extending over a period of more than 12 months.

The Jarecki Court began by looking at “the face of the statute”:

“Discovery” is a word usable in many contexts and with various shades of meaning. Here, however, it does not stand alone, but gathers meaning from the words around it. These words strongly suggest that a precise and narrow application was intended by § 456 [the phrase at issue]. The three words in conjunction, “exploration,” “discovery” and “prospecting,” all describe income-producing activity in the oil and gas and mining industries, but it is difficult to conceive of any other industry to which they all apply.... The application of the maxim [noscitur a sociis] here leads to the conclusion that “discovery” in § 456 means only the discovery of mineral resources.

Jarecki, 367 U.S. at 307, 81 S.Ct. at 1581. The four words in conjunction, “organizer,” “leader,” “supervisor,” and “manager,” all describe control over persons; it is difficult, if not impossible, to construe them all as describing control over inanimate objects. Thus, the application of noscitur a sociis would lead to the conclusion that “manager” in U.S.S.G. § 3Bl.l(b) means only a manager of persons.

Secondly, Congress sought in enacting the Sentencing Guidelines to achieve “reasonable uniformity in sentencing ... for similar criminal offenses.” United States Sentencing Commission, Guidelines Manual, § 1A2.3 (Nov. 1992). The Guidelines Commission itself in the Answer to Question No. 73 in “Questions Most Frequently Asked About The Sentencing Guidelines” states:

For example, a defendant convicted of ■ the offense of managing a “crack house” (§ 2D1.8) does not automatically receive an aggravating role adjustment. The crack house manager must have actually organized, led, managed, or supervised others in the course of running the establishment in order to apply an aggravating role adjustment under § 3B1.1.

Thirdly, the word “manager” is ambiguous, possessed of differing meanings. It may, standing alone, mean control of inanimate objects, but it may be restricted to control of animate objects.³ Given the existence of a decided majority of the authorities holding that management must be of persons and with no binding precedent in the Fourth Circuit to the contrary, we should follow the existing authorities. The rule of lenity requires us to adopt the more' lenient construction. See United States v. Batchelder, 442, U.S. 114, 121, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); United States v. Mobley, 956 F.2d 450, 452 (3d Cir.1992); United States v. Payne, 952 F.2d 827, 830 (4th Cir.1991); United States v. Martinez, 946 F.2d 100, 102 (9th Cir.1991); United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th Cir.1991); United States v. Burke, 888 F.2d 862, 866 (D.C.Cir.1989).

In summation, the First Circuit sums it all up well:

The application notes to section 3B1.1, which state the factors to be considered in distinguishing “organizers and leaders” from “managers and supervisors,” for purposes of applying sections 3B 1.1(a) and (b), further indicate that some degree of control or organizational authority over others is required.

Fuller, 897 F.2d at 1220. Following the other circuits, all of whom recognize that for Sentencing Guidelines § 3B.1 purposes management means control of another person, will achieve the desirable congressional objective of rendering application of the Sentencing Guidelines uniform.

I, accordingly, on the point of the three level enhancement, dissent, and would vacate the sentence and remand for resen-tencing without applying the three level enhancement to Chambers.

1 . In Fuentes, it was held:

We acknowledge at the outset that a person can aptly be described as "managing” or "supervising" a building, investments, or many other tangible or intangible “things.” Nevertheless, we believe that in the context of § 3B1.1, it makes more sense to confine the terms “managing or supervising" to the narrower sense in which they are commonly used, as referring to the management or supervision of other people.

Fuentes, 954 F.2d at 153.

2 . Paz sought to escape classification as a manager on the grounds that he was a courier and not in control. No argument was made that control of inanimate objects was not sufficient and it was probable that residences controlled by Paz were occupied by others as residents. Paz pled guilty to maintaining a residence and there were witnesses who established cooking of crack by him and others which took place at the residence. See United States v. Thomas, 932 F.2d 1085, 1092 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 264, 116 L.Ed.2d 217 (1991); cert. denied, — U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 447 (1991); and cert. denied, — U.S. -, 112 S.Ct. 887, 116 L.Ed.2d 791 (1992):

Robinson’s arrangement of a place to store the proceeds and undistributed crack included not only renting apartments, but actually purchasing and using an apartment complex to house a crack joint. This is sufficient involvement, even ignoring Robinson's other activities, to support the inference that Robinson "exercised some degree of control over others involved in the commission of the offense or [was] responsible for organizing others for the purpose of carrying out the crime.” United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990).

3 . "Manage,” according to the Oxford English Dictionary, relates to "training, handling and directing of a horse in its paces.” Unquestionably, Man-o-War was animate.