United States v. Cory Freyermuth

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2814
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CORY M. FREYERMUTH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:21CR00047-002 — James D. Peterson, Chief Judge.
____________________
ARGUED JULY 12, 2023 — DECIDED AUGUST 7, 2023
____________________
Before SYKES, Chief Judge, and ROVNER, and WOOD, Circuit
Judges.
ROVNER, Circuit Judge. Cory Freyermuth received a
102-month prison sentence for conspiring to distribute meth-
amphetamine and launder money. See 21 U.S.C. §§ 841(a)(1),
846; 18 U.S.C. § 1956(h). He appeals that sentence, arguing
that the district judge should have applied a minor-role re-
duction. See U.S.S.G. § 3B1.2. Because the judge adequately
2 No. 22-2814
compared Freyermuth’s role to the average conspiracy mem-
ber’s and applied the relevant guideline factors, we affirm.
I. Background
Freyermuth and five others were indicted by a Wisconsin
grand jury for their involvement in a conspiracy to distribute
large quantities of methamphetamine. The other participants
included Freyermuth’s brother, his brother’s girlfriend, and
three regional dealers. Freyermuth pleaded guilty to conspir-
ing to both distribute over 50 grams of methamphetamine and
launder money.
After the district judge accepted Freyermuth’s plea, the
probation office prepared a Presentence Investigation Report
(PSR), which described Freyermuth’s role in the conspiracy.
According to that report, Freyermuth—at his brother’s direc-
tion—received drug shipments, leased a storage unit to store
the drugs, delivered the drugs to the regional dealers, col-
lected money from the dealers, and sent that money to his
brother and brother’s girlfriend. Based on these activities, the
PSR concluded that Freyermuth was “integral” to the conspir-
acy, and a minor-role reduction was not warranted.
Freyermuth objected, arguing that the reduction was
justified because he was “essentially [his brother’s] drug
mule”: Relative to his co-conspirators, he was uninvolved in
decision-making and poorly compensated. The probation
office disagreed, concluding that Freyermuth’s “numerous
duties”—receiving shipments, maintaining a storage unit,
delivering drugs to the dealers, collecting proceeds, and
wiring proceeds back to his brother—precluded him from the
minor-role reduction. Without the reduction, Freyermuth’s
total offense level was assessed at 37 and criminal history
No. 22-2814 3
category at III, yielding a guideline imprisonment range of
262 to 327 months.
Freyermuth again raised his minor-role arguments in his
sentencing memorandum and at his sentencing hearing. First,
he argued that his role in the conspiracy was determined by
his brother’s “extraordinarily specific” instructions, in
marked contrast to the dealers, who operated “more like
business partners.” Second, he cited application note 3(A) to
§ 3B1.2 of the Guidelines, which recommends a minor-role
adjustment for one whose participation in a drug conspiracy
was limited to transporting or storing drugs. A minor-role
reduction would have lowered Freyermuth’s offense level by
six—two levels under § 3B1.2 and four levels under
§ 2D1.1(a)(5)—to 31, which would correspond to a sentencing
range of only 135 to 168 months.
The district judge rejected Freyermuth’s minor-role argu-
ment. The judge stated that he had reviewed the relevant
guidelines and application notes, and concluded that Frey-
ermuth’s conduct fell outside the scenario described in appli-
cation note 3(A). Freyermuth’s role, the judge said, was “mul-
tifaceted”: he stored the drugs “relatively independently,”
maintained the inventory, and delivered the drugs to the
dealers—"it wasn’t just like he was the courier[.]” The judge
added that Freyermuth also collected and laundered the con-
spiracy’s proceeds, which enhanced his knowledge of the
conspiracy’s “scale.” The judge acknowledged that Frey-
ermuth’s discretion was limited by his brother’s instructions
but found that factor insufficient to justify a reduction. The
judge imposed a sentence of 102 months, well below the
guidelines range, to run concurrently with a sentence of the
same length on the money laundering count.
4 No. 22-2814
II. Discussion
On appeal, Freyermuth challenges only the denial of the
minor-role reduction, arguing that the judge did not appro-
priately consider the factors set forth in the commentary to
§ 3B1.2 and erroneously denied the reduction despite finding
facts that were sufficient to grant it. This appeal presents a
mixed question of law and fact. We review the district judge’s
factual findings for clear error and its interpretation of the
Sentencing Guidelines de novo. United States v. Campuzano-
Benitez, 910 F.3d 982, 989 (7th Cir. 2018).
The minor-participant reduction applies if the defendant
can show by a preponderance of the evidence that he was
“substantially less culpable than the average participant” in
the conspiracy. United States v. Orlando, 819 F.3d 1016, 1025
(7th Cir. 2016) (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)). To
determine whether the reduction applies, courts must
evaluate several, non-exhaustive factors, including the
defendant’s knowledge of the conspiracy; his influence in
planning, organizing, and decision-making; his individual
participation (including the discretion he had therein); and
the degree to which he stood to benefit from the conspiracy.
U.S.S.G. § 3B1.2 cmt. n.3(C). Although district judges need
not explicitly consider every factor, we look for sufficient
indication from the record that the judge was aware of the
factors. Campuzano-Benitez, 910 F.3d at 989–90.
Freyermuth insists that the district judge erred by basing
his decision on Freyermuth’s multifaceted role rather than
considering the factors set forth in note 3(C) to § 3B1.2. But the
judge’s reasoning for denying the reduction appropriately
tracked the factors set forth in note 3(C). The judge, for in-
stance, addressed the first factor, finding that Freyermuth’s
No. 22-2814 5
multifaceted role informed him of the conspiracy’s “scale.”
See U.S.S.G. § 3B1.2 cmt. n.3(C)(i). And the judge recognized
Freyermuth’s minimal influence in planning, organizing, and
decision-making; the judge acknowledged as much when he
stated that Freyermuth worked “under the ultimate direc-
tion” of his brother. See U.S.S.G. § 3B1.2 cmt. n.3(C)(ii)–(iii).
Finally, the judge explicitly discussed Freyermuth’s extensive
participation—storing and transporting the drugs, plus col-
lecting and laundering the proceeds—that involved him in
most of the conspiracy’s operations. See id. § 3B1.2
cmt. n.3(C)(iv).
Freyermuth also argues that the judge, by focusing on his
multifaceted role, did not appropriately compare his role to
that of the average conspiracy-member. Under application
note 3(A), a minor-role reduction is warranted when a
defendant is “substantially less culpable than the average
participant in the criminal activity.” Id. § 3B1.2 cmt. n.3(A).
But here too, the judge was required to make this comparison
only implicitly, rather than explicitly. See United States v.
Sandoval-Velazco, 736 F.3d 1104, 1108 (7th Cir. 2013). The
judge made that implicit comparison, explaining, for instance,
that Freyermuth performed more functions than the dealers
and interacted with every other member of the conspiracy—
especially with his brother, the leader.
Freyermuth next argues that the judge misinterpreted ap-
plication note 3(A), which addresses adjustments available to
a hypothetical defendant whose role in the offense make him
less culpable than the average participant. The note provides:
[A] defendant who is convicted of a drug traf-
ficking offense, whose participation in that of-
fense was limited to transporting or storing
6 No. 22-2814
drugs … may receive an adjustment under this
guideline.
U.S.S.G. § 3B1.2 cmt. n.3(A) (emphasis added). Freyermuth
maintains that the judge misinterpreted this language to dis-
qualify him from a minor-role downward adjustment because
he primarily transported and stored drugs.
We disagree. Section 3B1.2’s application turns on culpabil-
ity, and not all acts of storage and transport affect a defend-
ant’s culpability equally. See United States v. Sanchez, 989 F.3d
523, 544 (7th Cir. 2021). Here, the sentencing transcript reflects
that the judge did not regard Freyermuth to be substantially
less culpable than the average participant in the conspiracy.
The judge emphasized that his role in storing the drugs was
“relatively independent[]”: “It wasn’t just like he maintained
a stash house that other people came and used. He actually
stored it and maintained the inventory.” Similarly, Frey-
ermuth’s transportation role “wasn’t just like he was the cou-
rier who got it from Arizona to Wisconsin”; rather he “trans-
ported it in the sense of actually delivering it to the dealers.”
On top of that, the judge recognized that Freyermuth added
to his culpability by collecting and laundering the proceeds.
Because the facts here support the judge’s conclusion that
a minor-role reduction was not warranted, we AFFIRM.