United States v. Gregory Bennett

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3245
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G REGORY B ENNETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06-CR-126—Barbara B. Crabb, Judge.
A RGUED O CTOBER 29, 2012—D ECIDED F EBRUARY 14, 2013
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
K ANNE, Circuit Judge. On March 13, 2006, the Drug
Enforcement Administration (“DEA”) interviewed
Gregory Bennett in connection with a series of transac-
tions involving marijuana, MDMA (commonly known as
“ecstasy”), and crack cocaine. In an attempt to induce
complete truthfulness, the government, prior to the
interview, agreed not to use Bennett’s statements
against him, provided that Bennett promised not to later
2 No. 11-3245
take a position inconsistent with his interview statements.
During this proffer session, Bennett admitted that he
had supplied all three drugs to a government informant.
After the proffer interview, Bennett fled and went into
hiding. A grand jury later indicted him. In 2010, Bennett
was arrested living under an assumed name in Georgia.
Bennett pled guilty to the possession of ecstasy and
marijuana with the intent to distribute both. He now
alleges that the government violated the terms of the
original proffer agreement during the sentencing process,
along with other subsidiary errors. We disagree. Finding
no error in Bennett’s sentence, we affirm the district
court’s judgment.
I. B ACKGROUND
On November 10, 2010, Gregory Bennett was arrested
by U.S. Marshals in Georgia. Over the previous four
years, Bennett had been living in Atlanta, where he had
held regular employment and acquired a fiancée with
whom he had a daughter. Though Bennett initially gave
the arresting officer an Illinois drivers license with the
name “Charles Scott,” Bennett eventually admitted that
the license was fake and that he was “relieved it was
over.” (Presentence Investigation Report at ¶ 56.) “[I]t,”
in this case, was Bennett’s life on the run from a 2006
narcotics indictment in Wisconsin.
On January 27, 2006, Bennett and his associate, Darius
Kelly, engaged the services of Amy Hill to transport
drugs for them between Chicago and Madison, Wisconsin.
The plan, apparently, had been for Bennett and Kelly to
meet Hill in Madison that evening and retrieve the
No. 11-3245 3
drugs they had jointly given her in Chicago (400 ecstasy
pills, 870.5 grams of marijuana, and 33.9 grams of crack
cocaine). The ecstasy and marijuana belonged to Bennett,
and the crack belonged to Kelly, though all of the drugs
were given to Hill in one bag by both men. Kelly and
Bennett had acquired the narcotics in Chicago and
planned to sell them again in Madison; this was a
pattern they had repeated on at least four previous occa-
sions, each time using Hill to transport the illicit sub-
stances. Hill was hired to transport the drugs only, pre-
sumably to help Kelly and Bennett avoid detection.
Bennett helped Hill arrange to rent a minivan, and he
and Kelly followed two hours behind her on the drive
to Madison.
Coincidentally, that same day, Hill was also hired by
another individual, Quincy Clark, to transport over
180 grams of crack cocaine between Chicago and Madi-
son. Clark, however, had been arrested earlier and had
placed this order at the behest of law enforcement. After
acquiring the crack cocaine to fulfill Clark’s order from
Lawrence Green, Hill was arrested in Madison as
she attempted to meet up with Clark. Like Clark, Hill
quickly agreed to cooperate with law enforcement.
When Hill failed to materialize that evening, however,
Bennett and Kelly became worried, and each left two
voicemail messages for her before they returned to Chi-
cago.
Back in Chicago on January 31, DEA agents prepared
Hill to meet with Green, her source for the bulk of the
crack cocaine she was arrested with four days earlier. The
4 No. 11-3245
DEA outfitted her with a recording device and $5,000
with which to pay Green. Hill met up with Green, and,
after accepting payment and running errands around
town in his black Hummer, Green took Hill to his
cousin’s house. There, Bennett and Kelly (both of whom,
along with Green, were members of the Gangster
Disciples street gang) intercepted Hill; they were angry
that she had not met them in Madison and that she ap-
peared to have neither their money nor their drugs
(having focused on Green, the DEA had given her
money to cover only his drugs). The two took Hill into
the house. Bennett and Kelly directed her to strip, at
which point they found the recording device. Bennett
burned Hill’s arms and stomach using cigarettes and
cigars while demanding money for the missing drugs.
Bennett and Kelly then hooded Hill with a pillowcase
and took her to a new location—an abandoned house—
where the assault and the demands for drug money
continued. Bennett burned Hill further and beat her
around the face and body.
Eventually, Hill convinced the two that a boyfriend,
“Sweet Lou,” had the drug money and persuaded them
to call him. “Sweet Lou” was actually DEA Special
Agent Lou Gade. Bennett called Special Agent Gade on
Hill’s cell phone and demanded the money. The two
arranged a drop behind a Chicago restaurant. Bennett
remained on the phone with “Sweet Lou,” while Kelly
went to retrieve the money. Bennett (correctly) began to
suspect that “Sweet Lou” was actually a law enforce-
ment officer and demanded that the drop location be
changed. Agent Gade refused. Bennett and Kelly released
No. 11-3245 5
Hill later that evening, and law enforcement officers
brought her to a local hospital where she was treated
for the after-effects of the beating.
On March 13, 2006, Bennett, accompanied by his
lawyer, engaged in a proffer session with two DEA
agents—Special Agent Blake Smith and “Sweet Lou”
himself, Special Agent Lou Gade. Before the interview,
the government and Bennett, through his attorney, agreed
to the standard conditions set out in a proffer agree-
ment. Relevant here is the following passage:
The government requires a completely truthful
statement by your client in this proffer. In the
likely event your client is subsequently prosecuted,
no direct use will be made of his statements, or
any information provided by him, in the govern-
ment’s case-in-chief at trial, or in aggravation of
his sentence, pursuant to USSG § 1B1.8. . . .
If your client should subsequently testify at
any trial or hearing contrary to the substance of
the proffer, or presents a position inconsistent
with the proffer (for example, during cross-exami-
nation of witnesses, through witness testimony,
or during arguments), the government is com-
pletely free to use the statements and other in-
formation from the proffer at sentencing for any
purpose, at trial for impeachment or in rebuttal
testimony, or in prosecution for perjury.
(R. 231-2 at 2-3.) During the interview, Bennett described
his relationship with Kelly, Green, and Hill, as well as his
part in the events of January 27 and 31. Importantly,
6 No. 11-3245
Bennett told the agents during the proffer session that he
had “supplied” the drugs from the 27th to Hill: the mari-
juana, the ecstasy, and 33.9 grams of the crack cocaine.
(R. 231-1 at 4.)
Bennett was indicted for various narcotics-related
offenses on May 31, 2006, and an arrest warrant was
issued on June 14. By that point, Bennet had fled. A
superseding indictment against Bennet was sub-
sequently handed down on October 5, 2006. While
Bennett was on the run, Green, Kelly, and Hill were all
convicted and sentenced for various narcotics-related
offenses in connection with these events.
After being apprehended in Georgia four years later,
Bennett made his initial appearance in Wisconsin on
December 13, 2010, and soon entered into plea negotia-
tions with the government. During the course of negotia-
tions, Bennett, through his counsel, disavowed some of
the proffer statements. Specifically, he said that “he did
not know anything about the cocaine.” (R. 231-7 at 3.)
Based on the drugs he supplied to Hill, Bennett
eventually pled guilty to possession of ecstasy and mari-
juana with the intent to distribute both. He was warned
that the cocaine might still be considered “relevant con-
duct” at sentencing.
When it compiled the PSR, the Probation Office
included a description of the information that Bennett
provided during his proffer session, but noted that the
information was protected. The PSR also included
accounts from multiple other witnesses, including
Green, Kelly, Hill, and Special Agent Gade. The Probation
No. 11-3245 7
Office concluded that 33.9 grams of the crack cocaine
found on Hill was part of the offense conduct and used
it to calculate Bennett’s recommended base guideline
sentence. The PSR additionally recommended a two-
level enhancement for being “an organizer, leader, man-
ager, or supervisor” of the criminal activity. U.S.S.G.
§ 3B1.1(c). The report did not recommend crediting
Bennett for accepting responsibility for his crimes.
Bennett objected to all of these decisions. First, he
objected to what he interpreted as the government’s use
of his proffer statements to determine his recommended
sentence in the PSR. He further contended that he
was not actually responsible for the cocaine and that,
without the proffer statements, the government did not
have enough evidence to prove that he was responsible
for it. Bennett also argued that he should not receive
the “organizer, leader, manager, or supervisor” enhance-
ment. Finally, he argued that he should be credited
for accepting responsibility.
The district court accepted the PSR’s recommenda-
tions and overruled Bennett’s objections. In doing so,
the court found that Bennett’s objections constituted a
position inconsistent with his proffer statements; such
statements breached the proffer agreement, thereby
unlocking the entire content of the interview for sen-
tencing purposes. Bennett timely appealed that decision
and brings essentially the same objections before us
now. We address each argument in turn below.
8 No. 11-3245
II. A NALYSIS
A. Violation of the Proffer Agreement
Bennett first argues that the government breached the
terms of his proffer agreement. When the relevant facts
are not in dispute, as here, we review the alleged breach
of a proffer agreement de novo. United States v. Farmer, 543
F.3d 363, 373 (7th Cir. 2008). During this review, “[w]e
hold the government to the literal terms of the [proffer]
agreement, as well as the most meticulous standards
of both promise and performance to insure the integrity
of the bargaining process involved in proffers.” Id. at
374 (internal quotation marks omitted).
Both parties agree that the proffer agreement was
breached; we are asked to decide when and by whom.
Bennett claims that the government breached the agree-
ment when it “utilized [Bennett’s] statements to deter-
mine his guideline range.” (Appellant’s Br. at 16.) The
government, in turn, presents us with two theories for
when Bennett breached the agreement, thereby making
permissible the use of the proffer statements for sen-
tencing. First, the government argues that Bennett
took a position inconsistent with his proffer inter-
view during emailed plea negotiations. Alternatively, the
government claims that Bennett took an inconsistent
position by arguing that he was not responsible for
the crack cocaine during sentencing. Finding that any
alleged government use of the proffer statements was
harmless in any event, we address only that possibility.
Before talking with the DEA, Bennett accepted a
proffer agreement that stated, in part:
No. 11-3245 9
[t]he government requires a completely truthful
statement . . . in this proffer. In the likely event
[Bennett] is subsequently prosecuted, no direct
use will be made of his statements, or any infor-
mation provided by him, in the government’s case-
in-chief at trial, or in aggravation of his sentence,
pursuant to USSG § 1B1.8.
(R. 231-2 at 2.) Bennett now argues that the inclusion
of details from his proffer interview in the PSR con-
stituted a “direct use” in breach of the agreement. But, the
proffer was not the only agreement between Bennett
and the government. Bennett also signed a plea agree-
ment, which provided that “[t]he defendant also under-
stands that the United States will make its full dis-
covery file available to the Probation Office for its use
in preparing the presentence report.” (R. 225 at 2.)
The government argues that this clause indicates that
Bennett assented to the information being included in
the PSR, and that the only limitation on the government
was on relying on the proffer-protected statements for
sentencing purposes (something the government argues
it did not do).
Each party argues that United States v. Farmer supports
its case. 543 F.3d 363. In Farmer, one of the defendants,
Compton, entered into a proffer agreement with the
government. As in Bennett’s agreement, the government
stipulated that it would not use the proffer information
in its case-in-chief. Under paragraph five of the agree-
ment, “the government would be free to provide” infor-
mation from the proffer session to “any United States
10 No. 11-3245
District Court” if Compton pled guilty or was found
guilty at trial. Id. at 374 (internal quotation marks omit-
ted) (emphasis added). That provision was in some
tension with paragraph six of the same agreement which
said that “no self-incriminating information given by
Compton will be used to enhance the Offense Level”
recommended during sentencing. Id. (emphasis added)
(internal brackets). The Probation Office subsequently
included Compton’s proffer statements in the PSR and
then relied on them to recommend a particular sentence.
Id. In trying to make sense of the proffer agreement,
we distinguished between “provid[ing]” and “using” the
information: “[u]nder the proffer agreement, the gov-
ernment could provide Compton’s proffer statements
to the district court, but it could not per se recommend
that the court increase Compton’s offense level based on
that information.” Id. Because the government did rely on
the protected statements to recommend an increased
offense level, the government breached. Id. But, we also
noted the apparent incongruity of the provisions in the
proffer: “[b]y their very nature, paragraphs five and six
of the agreement [containing the provisions allowing
the government to provide but not use the statements]
are almost irreconcilable; short of attaching the de-
fendant’s proffer statements to materials provided to
the court for sentencing purposes, any other mention
of information obtained from the proffer will likely
violate the agreement.” Id. The government argues in
this case that including Bennett’s statements in the PSR
and marking them “protected,” goes no further than
“attaching the defendant’s proffer statements to
No. 11-3245 11
materials provided to the court for sentencing”; Bennett
disagrees and argues that the government’s actions
constitute “direct use.”
We need not resolve this close question or the govern-
ment’s companion argument that Bennett’s attorney’s
statements in emailed plea negotiations constituted a
breach.1 Even if the government did breach, any error
by the district court in relying on wrongly-provided
information was harmless. See 28 U.S.C. § 2111; Fed. R.
Crim. P. 52(a). The government presented multiple
sources of evidence for the same propositions that
Bennett argues were supported solely by his proffer
interview. Therefore, the district court would have come to
the same conclusion and imposed the same sentence, even
absent the allegedly improper information.
To understand why this is so, it is necessary to walk
through Bennett’s second, and related, argument—that
the district court improperly attributed the 33.9 grams
1
We note in passing that the proffer letter is unclear as to
whether emailed plea negotiations are a forum in which
Bennett could permissibly renounce his prior statements.
The letter provided a non-exclusive list of fora in which
Bennett was precluded from taking an inconsistent position,
but that list included only formal judicial proceedings. (R. 231-2
at 2-3) (“testi[mony] at trial . . . or . . ., during cross-examina-
tion of witnesses, through witness testimony, or during argu-
ments”). The parties, unsurprisingly, differed at oral argu-
ment over whether emailed plea negotiations should be in-
cluded. Because of our harmless error analysis, a resolution
is unnecessary.
12 No. 11-3245
of crack cocaine to him as applicable “relevant conduct.”
The PSR included the crack cocaine in the bundle of
narcotics used to calculate Bennett’s recommended base
offense level of 26. The district court accepted that recom-
mendation at sentencing. Bennett argues that, without
the proffer interview, the Probation Office, and thus
also the district court, lacked a factual basis for at-
tributing the crack cocaine to him. That is the only
harm that Bennett alleges flowed from the government’s
improper use of his statements.
Although he does not couch it in these terms, Bennett
really argues that the district court committed a “signifi-
cant procedural error.” Gall v. United States, 552 U.S. 38,
51 (2007) (“[The reviewing appellate court] must first
ensure that the district court committed no significant
procedural error, such as failing to calculate (or im-
properly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sen-
tence—including an explanation for any deviation
from the Guidelines range.”). The Supreme Court did not
have occasion in Gall to decide whether a significant
procedural error can be harmless, but we have since
held that it can in certain circumstances. See United
States v. Abbas, 560 F.3d 660, 666 (7th Cir. 2009). Those
circumstances exist “only . . . when the government has
proved that the district court’s sentencing error did not
affect the defendant’s substantial rights (here—liberty).
To prove harmless error, the government must be able
to show that the . . . error did not affect the district
No. 11-3245 13
court’s selection of the sentence imposed.” Id. at 667(internal quotation marks omitted). Here, the govern-
ment makes such a showing.
If we ignore the statements from the proffer session,
the facts marshaled by the Probation Office to support
a showing of responsibility are substantial. The “Offense
Conduct” and “Witness Statements” sections of the
PSR also include multiple other references to Bennett’s
responsibility for the crack cocaine. Paragraphs 34 and
35 include Green’s testimony that Hill transported drugs,
including the crack cocaine, for Bennett. Paragraphs 42
and 43 recount Hill’s testimony to a federal grand jury
that Bennett demanded payment for the cocaine as he
beat her. And, paragraph 31 describes Bennett’s demands
that “Sweet Lou” hand over the drug money, including
money for the crack cocaine.
The government argues that the PSR permissibly
relied on these other facts to ascribe responsibility for
the cocaine to Bennett without having to resort to the
proffer-protected statements, and we agree. Importantly,
the PSR does not specifically reference or cite the
protected statements in the “Relevant Conduct Analysis”
of the PSR. Rather, Paragraph 53 states that Bennett
“was aware the cocaine was in the bag because, during
the beating of Hill, he was requesting payment for the
marijuana, ecstasy, and cocaine.” This statement was
consistent with Hill’s grand jury testimony. Because
there was such overwhelming, non-proffer-protected
evidence that Bennett demanded payment for the crack
cocaine from various persons (including an undercover
14 No. 11-3245
DEA agent), it was appropriate for the PSR to consider
him responsible for it.
The district court similarly marshaled significant evi-
dence of Bennett’s responsibility when it sentenced him.
And, none of the pieces of information that the district
court listed as support for its decision came solely from
Bennett’s proffer statement. In fact, although Bennett
claimed responsibility for the cocaine during the
proffer interview, the district court acknowledged that
“[i]t’s true that . . . Kelly was the one that supplied [the
crack cocaine] to Ms. Hill.” (R. 252 at 35.) The court went
on to note, however, that “Mr. Bennett worked with . . .
Kelly distributing controlled substances,” and that
Bennett “was involved in Mr. Kelly’s efforts to reach
Ms. Hill to retrieve the drugs” in Madison on January 27.
(Id.) Further, the district court described how Bennett
beat Hill once she returned to Chicago, and the court
maintained that “Bennett’s anger with Ms. Hill was not
because she didn’t bring payment for the marijuana and
ecstasy, but because she didn’t bring money for the
expensive part of the venture, which was the crack co-
caine.” (Id. at 25-26.) The court concluded that “the crack
cocaine is properly attributable to [Bennett] as part of
his relevant conduct.” (Id. at 26.)
The district court disregarded the only relevant piece
of information that came solely from the proffer session:
Bennett’s claim to have supplied the crack cocaine.
(R. 252 at 35.) Instead, it relied on an alternate version of
events to determine Bennett’s sentence. There were
other, and sometimes multiple other, sources for each
fact the district court used to support its decision, in-
No. 11-3245 15
cluding, in particular, Hill’s grand jury testimony and
Special Agent Gade. The necessary conclusion is that
any alleged “error [occasioned by the government’s use
of the proffer statements] did not affect the district
court’s selection of the sentence imposed.” Abbas, 560
F.3d at 667 (internal quotation marks omitted). There-
fore, any error in the use of the proffer statements was
harmless, so long as it was substantively correct for the
district court to otherwise attribute the crack cocaine
to Bennett. We conclude as much below, so we can—and
do—find that any reliance on the proffer statements
was indeed harmless.
B. Inclusion of the 33.9 Grams of Crack Cocaine as Relevant
Conduct
Having determined that the district court would have
included the 33.9 grams of crack cocaine as relevant
conduct even without Bennett’s proffer statements, we
must still assess whether that finding itself was correct.
Bennett argues that including the crack cocaine was
improper. We disagree; even giving Bennett the benefit
of the doubt and ignoring his proffer statements ad-
mitting responsibility, we think the “relevant conduct”
determination was appropriate.
We review a district court’s application of the sentencing
guidelines de novo, but we give greater deference to its
factual determinations and review them for clear error.
United States v. Sheneman, 682 F.3d 623, 630 (7th Cir. 2012).
We will upset a district court’s factual determination
“only if our review of all the evidence leaves us with
16 No. 11-3245
the definite and firm conviction that a mistake has been
made.” United States v. Robertson, 662 F.3d 871, 876 (7th
Cir. 2011).
The Probation Office used U.S.S.G. § 2D1.1(c) to deter-
mine Bennett’s recommended sentence. That section
recommends specific offense levels corresponding to
specific drug quantities involved in the particular crime.
To determine which drugs were involved, application
note 5 directs that “[t]ypes and quantities of drugs not
specified in the count of conviction may be considered
in determining the offense level” and provides a cross-
reference to U.S.S.G. § 1B1.3(a)(2) (Relevant Conduct).
U.S.S.G. § 2D1.1, cmt. n.5. U.S.S.G. § 1B1.3, in turn, defines
“relevant conduct” for the purposes of determining
the appropriate guideline sentence. Subsection (a)(1)
provides that courts should consider:
all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or
willfully caused by the defendant; and . . . in the
case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with
others, whether or not charged as a conspiracy),
all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken
criminal activity, that occurred during the commis-
sion of the offense of conviction, in preparation
for that offense, or in the course of attempting to
avoid detection or responsibility for that offense[.]
U.S.S.G. § 1B1.3(a)(1). For purposes of controlled sub-
stances, application note 2 states that “the defendant is
No. 11-3245 17
accountable for all quantities of contraband with which
he was directly involved and, in the case of a jointly
undertaken criminal activity, all reasonably foreseeable
quantities of contraband that were within the scope of
the criminal activity that he jointly undertook.” U.S.S.G.
§ 1B1.3 cmt. n.2. The Probation Office determined that
the 33.9 grams of crack cocaine found on Hill should
thus be included as part of the offense conduct for
Bennett. The district court agreed.
Bennett makes two arguments objecting to that
finding: one based on the district court’s factual deter-
minations and one based on its legal reasoning. First,
Bennett argues that he was not in fact responsible for
(or perhaps even aware of) the crack cocaine. Second, he
argues that, even if the government could prove his
awareness or responsibility, his involvement with the
crack cocaine is not “relevant conduct” under the sen-
tencing guidelines. We review the first, a question of
fact, for clear error and the second, a question of law,
de novo. Sheneman, 682 F.3d at 630.
1. The district court’s factual determination
The argument that the 33.9 grams of crack cocaine
found on Hill were not “reasonably foreseeable” or other-
wise factually attributable to Bennett is a non-starter.
We accept the district court’s finding that “Kelly was
the one that supplied [the crack cocaine] to Ms. Hill.”
(R. 252 at 35.) But Bennett acted as the de facto enforcer.
When Hill returned to Chicago without the drugs or
the money, Bennett beat her. He demanded payment
18 No. 11-3245
for not only the ecstasy and marijuana but also the
crack cocaine. The district court reasoned that Bennett
used such viciousness because of the value of the cocaine
(which was far greater than that of the other two drugs).
Thus, the district court concluded that Bennett showed
some responsibility for it.
We do not think the court’s logic is unreasonable;
though, as Bennett points out, such logic does not neces-
sarily establish Bennett’s knowledge of the cocaine prior
to or during the commission of the offense of conviction
itself. Merely introducing a plausible alternative story,
however, is not enough to meet the clear error standard
of review. United States v. Rice, 673 F.3d 537, 540-41 (7th
Cir. 2012) (“the task on appeal is not to see whether
there is any evidence that might undercut the district
court’s finding; it is to see whether there is any evidence
in the record to support the finding”). Here, there is
other evidence supporting the district court’s decision.
Bennett undermines his own argument, for instance,
by going to some length in his brief to distinguish
himself from Kelly. Bennett admits that the record estab-
lishes that he “was a marijuana and MDMA distributor
and known as such.” (Appellant’s Br. at 22.) Bennett
contrasts his reputation with that of Kelly, who “was
a cocaine dealer.” (Id.) In undertaking a joint narcotics
venture with an established cocaine dealer, it is rea-
sonably foreseeable that some quantity of cocaine will
be involved. Based on Bennett’s demands of Hill during
the beating, it appears he was aware (at least) that an
amount of cocaine with significant value was at stake.
We are not left “with the definite and firm conviction
No. 11-3245 19
that a mistake has been made” here and do not find a
clear error in the district court’s factual findings.
Robertson, 662 F.3d at 876.
2. Application of the sentencing guidelines to the facts
Notwithstanding the above, for the conduct to be con-
sidered at sentencing, reasonably foreseeable activity
undertaken by associates must be in furtherance of
“jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1). According to Bennett, Kelly’s use of Hill
to transport the crack cocaine was not. Again, we dis-
agree. Here, transporting narcotics from Chicago to
Madison—an activity for which Bennett and Kelly had
together engaged Hill on multiple occasions—was “jointly
undertaken criminal activity, that occurred during the
commission of the offense of conviction.” Id. Kelly used
Hill to transport crack cocaine while Bennett jointly
used her to transport his drugs, a fact each knew. This
certainly furthered the joint criminal activity of narcotics
transportation: it allowed Bennett to split costs with
Kelly. Further, the fact that Bennett beat Hill while re-
questing money for all the drugs, including the
cocaine, provides significant evidence that this truly
was “jointly undertaken criminal activity,” and that
Bennett had some interest in Hill returning the money
for the cocaine. Thus, we again find no error in the
district court’s reasoning. It was proper for the district
court to use the 33.9 grams of crack cocaine to deter-
mine Bennett’s base offense level.
20 No. 11-3245
C. Organizer/Leader Enhancement
Bennett similarly alleges that the district court erred
in applying a two-level upward adjustment for his leader-
ship role in the offense. Again, we review the district
court’s application of the guidelines de novo, while we
review the factual determination of Bennett’s role in
the offense for clear error. Robertson, 662 F.3d at 876.
U.S.S.G. § 3B1.1(c) provides that “[i]f the defendant
was an organizer, leader, manager, or supervisor in any
criminal activity . . . , increase [the base offense level] by
2 levels.” To determine if a defendant occupies such a
position, we again turn to the definition of “relevant
conduct” and analyze activity “that occurred during
the commission of the offense of conviction, in prepara-
tion for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.”
U.S.S.G. § 1B1.3(a)(1)(B). Bennett argues that the activity
upon which the court based its conclusion falls outside
the definition of § 1B1.3; that is, it did not occur within
any of the relevant time periods. He also argues that, even
if it did, the activity was not sufficient to merit labeling
him an “organizer, leader, manager, or supervisor.”
U.S.S.G. § 3B1.1. We address those arguments in turn.
1. Bennett’s conduct during the relevant time periods
Bennett pled guilty to possession with intent to dis-
tribute both ecstasy and marijuana. He thus argues that,
“[t]he criminal act for which [he] pleaded guilty ended
when he relinquished the narcotics for transportation
No. 11-3245 21
to Madison.” (Appellant’s Br. at 25.) Under Bennett’s
logic, then, none of his interactions with Hill after
handing over the drugs in Chicago could be used to
show that he supervised her. The district court, however,
used Bennett’s apparent control over Hill during the
transportation of the drugs as the basis for the § 3B1.1
enhancement.
Bennett’s interpretation of the timing and geography
of the conviction offense is simply incorrect. Importantly,
he pled guilty to possession with the intent to distribute
in the Western District of Wisconsin. (R. 1 at 5) (charging
Bennett with possessing MDMA with the intent to dis-
tribute “in the Western District of Wisconsin and else-
where”); (R. 225 at 2) (stating that “this guilty plea will
completely resolve all possible federal criminal viola-
tions that have occurred in the Western District of Wis-
consin.”) Because Bennett never had physical possession
of the narcotics while in Wisconsin, the convicted pos-
session must have been—at least partially—through
Hill. See 18 U.S.C. § 2 (providing that a person can be
liable as a principal even if the criminal act is carried out
by another). The criminal act for which Bennett pled
guilty did not end when he handed over the narcotics
in Chicago; therefore, Bennett’s argument that the inter-
actions between Bennett and Hill fall outside the scope
of § 1B1.3 has no merit.
2. Sufficiency of Bennett’s activity
Bennett continues, however, that, even if we are permit-
ted to analyze his interactions with Hill, they do not rise
22 No. 11-3245
to a level indicating that he was “an organizer, leader,
manager, or supervisor.” § 3B1.1. We disagree and cannot
find error in the district court’s ruling.
U.S.S.G. § 3B1.1 provides for a sentencing enhance-
ment when the convicted individual played a specific
role in the offense. As noted, subsection (c) (under
which Bennett was sentenced) provides a two-level
enhancement when the defendant was an “an organizer,
leader, manager, or supervisor.” U.S.S.G. § 3B1.1(c).
Subsection (a), however, provides for a four-level en-
hancement only where the defendant was an “organizer
or leader” of a large criminal enterprise. U.S.S.G. § 3B1.1(a).
Subsection (b), in turn, gives a three-level enhance-
ment only where the defendant was a “manager or super-
visor” of such an enterprise. U.S.S.G. § 3B1.1(b). Applica-
tion note 4 of § 3B1.1 helpfully provides seven factors
that courts “should consider” in “distinguishing a leader-
ship and organizational role from one of mere manage-
ment or supervision.” Included among the factors are
“exercise of decision making authority . . . , the recruit-
ment of accomplices, [and] the claimed right to a larger
share of the fruits of the crime.” Id. Despite the ap-
parently clear purpose of the application note to be used
to help contrast subsections (a) and (b), Bennett asks us
to use these factors to assess the appropriateness of
subsection (c) to his case. This was not a completely
outlandish request, as we (as well as our sister circuits)
have applied these factors to the question of whether a
defendant had any sort of leadership role—not merely for
distinguishing between roles. See, e.g., United States v.
Howell, 527 F.3d 646, 649 (7th Cir. 2008); United States v.
Mustread, 42 F.3d 1097, 1104-05 (7th Cir. 1994); see also
No. 11-3245 23
United States v. Jackson, 639 F.3d 479, 483 (8th Cir. 2011);
United States v. Gonzalez Edeza, 359 F.3d 1246, 1248-49 (10th
Cir. 2004); United States v. Taylor, 248 F.3d 506, 515-16 (6th
Cir. 2001).
Recently we have noted the apparent absurdity of that
approach—the application note helps to distinguish
between the distinct roles of “leader” or “organizer” and
“manager” or “supervisor,” while subsection (c) is aimed
at defendants who inhabit any of those roles. United
States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012). Perhaps
this is why in prior cases where we used the seven
factors, we have advised that “slavish adherence to
them is unnecessary: the ultimate question is what
relative role the defendant played.” Mustread, 42 F.3d
at 1104 n.3. Here, we follow that guidance. We do
not think the district court wrongly determined that
Bennett’s role was that of “an organizer, leader, manager,
or supervisor.” U.S.S.G. § 3B1.1(c).
The district court observed during sentencing that
“Hill stated and testified that she met Mr. Bennett in
2005 and began transporting drugs between Chicago and
Madison for him.” (R. 252 at 26) (emphasis added).
Further, Bennett acknowledged during the sentencing
process and acknowledges again in his briefs to this
court that he used Hill as his courier on multiple occa-
sions. (Appellant’s Br. at 4.) Like the district court, we
think all of this speaks to Bennett’s role as, at least, a
manager or supervisor of Hill.
Figueroa is an instructive comparison and takes what
might be described as a plain-meaning approach to
24 No. 11-3245
§ 3B1.1. 682 F.3d at 697. There, the defendant arranged
for a man named Cruz to travel from Texas to Chicago
transporting drugs. Id. at 696. Figueroa claimed, however,
to be merely a “conduit”; that is, he only passed along
instruction from his boss to Cruz. Id. Regardless, we
determined that “[t]he defendant supervised Cruz. He
told him where to go to get the drugs and, when he
returned with them, where to meet him to deliver the
drugs and get paid.” Id. at 697. Thus, the § 3B1.1 enhance-
ment was appropriate. Id. at 698.
We think the case here is just as clear. Like Figueroa,
Bennett told his drug courier, Hill, “where to get the
drugs and, . . . where to meet him to deliver the drugs
and get paid.” Id. at 697. Bennett claims that Hill was
simply somebody else’s (Kelly’s) supervisee and that
he occupied no supervising role. Evidence of Hill’s
primary employer may indeed be ambiguous, but it is
clear that Bennett took it upon himself to mete out a
punishment when she did not follow instructions. Upon
discovering that she did not have the drug money,
Bennett forced Hill to strip, beat her, and burned her, all
while demanding the money. Although most super-
visors do not terrorize their subordinates (at least not
physically), administering sanctions for poor work
quality is a quintessential supervisory task. Regardless
of who gave Hill more instruction during the course of
the relationship, it is clear that Bennett acted as a super-
visor (perhaps along with Kelly) in this particular in-
stance. We do not think the district court erred in
coming to that same conclusion and applying the en-
hancement.
No. 11-3245 25
D. Acceptance of Responsibility Credit
Finally, we find no merit to Bennett’s argument that
the district court erred in failing to credit him for accep-
tance of responsibility under U.S.S.G. § 3E1.1(a).
Our review of the district court’s decision is once again
for clear error. United States v. Etchin, 614 F.3d 726, 739
(7th Cir. 2010). Because we are “ill-equipped to assess
whether a particular defendant is motivated by genuine
acceptance of responsibility or by a self-serving desire
to minimize his own punishment,” we afford “great
deference” to the sentencing judge in such cases. United
States v. Gilbertson, 435 F.3d 790, 799 (7th Cir. 2006).
U.S.S.G. § 3E1.1(a) provides that a court may decrease
the offense level by two levels “[i]f the defendant clearly
demonstrates acceptance of responsibility.” Bennett
argues that—following his four-year flight from the
law under an assumed name, arrest, and removal to
Wisconsin—he pled guilty and “clearly accept[ed] re-
sponsibility” and that it was error for the court to
ignore this acceptance. Based on United States v.
Lallemand, 989 F.2d 936 (7th Cir. 1993), Bennett argues
that, because there is not a necessary logical incompati-
bility between his obstruction of justice (for which he
received a sentencing enhancement) and possible accep-
tance of responsibility, he is entitled to the § 3E1.1(a)
reduction. That argument misconstrues our precedent.
Although a sentencing enhancement for obstruction of
justice “ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct,” U.S.S.G.
26 No. 11-3245
§ 3E1.1(a) cmt. n.4, Bennett is correct to point out that
such a relationship is not required. The presumption
that the relationship exists, however, can only be
rebutted by a defendant in an “extraordinary case[ ].” Id.;
see also United States v. Black, 636 F.3d 893, 900 (7th Cir.
2011). Bennett argues that the timing of his actions is key
and makes his case “extraordinary”: while he obstructed
justice during his four years on the run, he clearly mani-
fested an acceptance of responsibility by pleading
guilty after his arrest. However, simply because Bennett
can argue that the district court was not required to
deny him the two-level credit, it does not follow that
the court was then required to grant him the credit. We
have never used “extraordinary” in this setting to refer
only to the issue of timing, in fact we have explicitly
rejected that notion. See United States v. Buckley, 192 F.3d
708, 711 (7th Cir. 1999) (rejecting the argument that a
defendant who earlier obstructed justice may “wipe
the slate clean, and earn the acceptance of responsibility
discount, just by pleading guilty and thereafter re-
fraining from obstructing justice further”). The district
court did not find that Bennett presented an extra-
ordinary case, (R. 252 at 26-27), and we do not think
that decision was clearly erroneous.
Lallemand is not to the contrary. In Lallemand, the defen-
dant directed a friend to destroy evidence upon the de-
fendant’s arrest. 989 F.2d at 937. Immediately following
the defendant’s arrest, however, he confessed, began
cooperating with law enforcement, and even phoned
the friend to tell him not to destroy the evidence (an
impossible request, it turned out, as the friend had fol-
lowed the instructions faithfully). Id. at 937-38. We found
No. 11-3245 27
that the enhancement and the credit were not mutually
exclusive under those circumstances—though Lallemand
did obstruct justice, he almost immediately sought to
minimize the effect of that obstruction and cooperated
with the authorities to the full extent of his ability. Id. at
938-39. The district court held that behavior to be extra-
ordinary, and we did not find that decision incom-
patible with the upward adjustment.
In the same vein, we defer to the district court’s deci-
sion here and cannot find that it clearly erred
in finding Bennett’s case not to be extraordinary.
Bennett’s obstruction—fleeing and living in Atlanta
under an assumed name for four years—was more signifi-
cant, and the evidence of his purported acceptance of
responsibility—a guilty plea—was more dubious than
in Lallemand, the case on which Bennett relies. The
district court found that Bennett cooperated post-arrest
“because he believed it would help him . . . , not because
he really accepts responsibility.” (R. 252 at 27.) That
determination “is entitled to great deference on re-
view.” U.S.S.G. § 3E1.1 cmt. n.5. We afford the district
court that deference here and find that it was not
clearly erroneous to deny Bennett the two-level § 3E1.1(a)
credit.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
2-14-13