                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4484


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KURT STEFFEN,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:10-cr-01198-CWH-7)


Argued:   October 30, 2013                Decided:   December 20, 2013


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Agee joined.


ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.        Robert
Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee. ON BRIEF: Mary Gordon
Baker, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

     In    this    appeal,         we   consider     the    application         of   a    role

enhancement      to    a    sentence      imposed     on    South     Carolina       Highway

Patrolman     Kurt         Steffen,     who       participated      in    a     conspiracy

involving    the      large-scale        cultivation       of    marijuana.          Steffen

argues that the district court erred in enhancing his sentence

after finding that Steffen was a manager or supervisor of the

drug conspiracy.           Upon our review, we conclude that the district

court did not clearly err in imposing the sentencing enhancement

based on Steffen’s aggravated role in the offense.                            Accordingly,

we affirm Steffen’s sentence.



                                              I.

     In November 2009, police investigated reports of unusually

high power usage on land owned by Steffen in Dorchester County,

South     Carolina         (the     Dorchester       County      property).              After

obtaining    a    warrant         and   searching     Steffen’s       property,       police

officers seized 315 marijuana plants found in two sheds and a

vehicle     parked     on      the      property.          The   police       also       found

“thousands of dollars worth of grow equipment” located on the

property.         Additional         investigation         revealed      that    Steffen’s

property was one of at least five locations in South Carolina

involved in a large-scale marijuana cultivation conspiracy.



                                              2
     Steffen      and   six    other    individuals          were       charged     with

conspiring to possess with intent to distribute 1,000 or more

marijuana    plants,    and    Steffen,     along      with       two    of   his     co-

defendants, was also charged with manufacturing and possessing

with intent to distribute 100 or more marijuana plants, all in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A-B).                           On the

morning of trial, Steffen pleaded guilty under a written plea

agreement    to   the   manufacturing       and   possessing            charge,    which

carried a five-year mandatory minimum term of imprisonment.                          See

21 U.S.C. § 841(b)(1)(B).

     The pre-sentence report (PSR) characterized Steffen as one

of   multiple     “mid-level    operators”        in    the       drug    conspiracy.

According to certain co-conspirators, before Steffen became a

state   highway    patrolman,     he    articulated          a    desire      to    sell

marijuana.        Steffen     later    purchased       the       Dorchester        County

property and allowed co-conspirators to grow marijuana on the

property in exchange for a share of the profits.                     Steffen became

a state trooper during the time period that he was “setting up

the grow” operation.

     In addition to purchasing the land on which the marijuana

was grown, Steffen paid for cultivation equipment and a shed

furnished with electricity, although he later transferred the

payor’s name on his property’s utility bill to that of a co-

defendant, Armando Verdugo (Verdugo), “in an attempt to avoid

                                        3
detection.”        Steffen also traveled in his police uniform to the

Dorchester County property and transported marijuana to other

locations in his patrol vehicle.                  On two occasions, Steffen used

his   patrol        vehicle    to        follow     Verdugo       when       Verdugo     was

transporting        marijuana,      in    order     “to    prevent       any     other   law

enforcement agency from stopping” Verdugo’s vehicle.

      The    PSR    calculated       a    total    offense       level      of   25,   which

included a three-level upward adjustment for being “a manager or

supervisor”        of     criminal       activity       involving        five     or     more

participants,       a     two-level      upward     adjustment        for    abuse     of   a

position     of    trust,     and    a    two-level       downward       adjustment      for

acceptance     of       responsibility.           Because       the   relevant     statute

applied a five-year mandatory minimum term of imprisonment to

Steffen’s     conviction,        Steffen’s         initial       advisory        guidelines

range of 57 to 71 months’ imprisonment was increased to 60 to 71

months’ imprisonment.

      At sentencing, Steffen argued that he did not qualify for

the   role   enhancement       because      he    did     not    manage     or   supervise

other participants in the conspiracy.                     Ultimately, the district

court disagreed, primarily relying on Steffen’s “ability through

the ownership of the land . . . to pull the plug on the entire

operation,” and adopted the PSR’s imposition of the three-level

upward adjustment.



                                             4
       The district court’s finding that Steffen was a manager or

supervisor in the conspiracy rendered Steffen ineligible for a

sentence below the mandatory minimum pursuant to the “safety

valve”      provision    of   the   guidelines.        See   U.S.S.G.   §   5C1.2

(2011).          Accordingly, the district court sentenced Steffen to

serve the minimum required term of 60 months’                    imprisonment. 1

Steffen timely appealed.



                                         II.

       The sentencing guidelines allow for a three-level upward

adjustment to a defendant’s offense level “[i]f the defendant

was a manager or supervisor (but not an organizer or leader) and

the criminal activity involved five or more participants or was

otherwise extensive.”          U.S.S.G. § 3B1.1(b).          The adjustment is

warranted when a defendant was a manager or supervisor “of one

or more other participants.”              Id. cmt. n.2.         Therefore, “an

adjustment under § 3B1.1 is proper ‘only if it was demonstrated

that       the    defendant   was   an    organizer,     leader,   manager    or

supervisor of people.’”         United States v. Cameron, 573 F.3d 179,

185 (4th Cir. 2009) (quoting United States v. Sayles, 296 F.3d

219, 226 (4th Cir. 2002)) (emphasis in original) (alterations

       1
       The court did not make         factual findings regarding whether,
alternatively, Steffen was            ineligible for the safety valve
because he made threats of            violence or possessed a dangerous
weapon in connection with the         offense.


                                         5
omitted). 2      The   burden   is   on       the   government   to    prove    by   a

preponderance of the evidence that the sentencing enhancement

should be applied.         United States v. Grubbs, 585 F.3d 793, 803

(4th Cir. 2009); United States v. Garnett, 243 F.3d 824, 828

(4th Cir. 2001).

                                          A.

     Before addressing the merits of Steffen’s argument that the

district court erred in finding that he acted in the role of a

manager or supervisor, we first must identify the appropriate

standard    of   review.     We   accord       due   deference    to    a    district

court’s application of the sentencing guidelines.                     United States

v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).                    “If the issue

turns primarily on a factual determination, an appellate court

should apply the ‘clearly erroneous’ standard.”                    United States

v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).                       In contrast,

“[i]f      the    issue . . . turns             primarily    on        the     legal

     2
       In distinguishing a “leadership and organizational role”
from “one of mere management and supervision,” courts should
take into account the defendant’s relevant conduct and consider:

     [1] the exercise of decision making authority, [2] the
     nature of participation in the commission of the
     offense, [3] the recruitment of accomplices, [4] the
     claimed right to a larger share of the fruits of the
     crime, [5] the degree of participation in planning or
     organizing the offense, [6] the nature and scope of
     the illegal activity, and [7] the degree of control
     and authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4.


                                          6
interpretation        of    a       guideline       term, . . . the             standard       moves

closer to de novo review.”                 Id. (emphasis removed).

      We    consistently             have    held         that       a      district         court’s

determination      that         a    defendant        held       a    leadership         role     in

criminal activity is “essentially factual” and, therefore, is

reviewed on appeal for clear error.                        United States v. Sheffer,

896 F.2d 842, 846 (4th Cir. 1990); see United States v. Kellam,

568 F.3d 125, 147 (4th Cir. 2009); United States v. Sayles, 296

F.3d 219, 224 (4th Cir. 2002); Daughtrey, 874 F.2d at 218.                                        In

deciding whether the defendant acted as a manager or supervisor,

the district court must draw an inference from “a variety of

data, including the information in the pre-sentence report and

the   defendant’s          statements        and      demeanor            at    the     sentencing

hearing,”      regarding        the     degree       to    which          the       defendant    was

responsible      for       committing         an      offense             relative      to      other

participants.      United States v. Mejia-Orosco, 867 F.2d 216, 220-

21 (5th Cir. 1989); see U.S.S.G. § 3B1.1 cmt. background.

      “[T]he    fact       of   manager      status        may       be    more      difficult    to

ascertain      than    purely          physical       facts—such               as    whether     the

defendant carried a gun during commission of the crime—and may

depend upon an assessment of the broad context of the crime.”

Mejia-Orosco,     867       F.2d      at    221.       However,            as   other     circuits

uniformly have concluded, “a complex fact is no less a fact,”

and a criminal defendant’s eligibility for a role enhancement

                                                7
under § 3B1.1 is no different from other factual questions that

require “assessment of complex evidence as well as sensitivity

to legal purposes.”          Id.; see also United States v. Herrera, 878

F.2d    997,   1000   (7th    Cir.   1989)     (concluding    that   whether   the

defendant played an aggravating role in an offense was a factual

question subject to clear error review); United States v. Ortiz,

878 F.2d 125, 126–27 (3d Cir. 1989) (same); United States v.

Wright, 873 F.2d 437, 443 (1st Cir. 1989) (same).

       Because      application      of       the   manager     or    supervisor

enhancement involves a factual determination, we apply the clear

error    standard     in   reviewing      whether   a   preponderance    of    the

evidence supported imposition of the enhancement in Steffen’s

case.     See, e.g., United States v. Cabrera-Beltran, 660 F.3d

742, 756 (4th Cir. 2011) (analyzing district court’s application

of a manager or supervisor role enhancement in terms of whether

“the district court committed clear error in finding, based on a

preponderance of the evidence, . . . that the defendant was a

manager or supervisor in the conspiracy”).                    We will conclude

that the ruling of the district court is clearly erroneous only

when, after reviewing all the evidence, we are “left with the

definite and firm conviction that a mistake has been committed.”

United States v. May, 359 F.3d 683, 688 (4th Cir. 2004) (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).                    In

conducting this review for clear error, we are not confined to

                                          8
the district court’s analysis but may affirm the court’s ruling

on   any   evidence    appearing         in    the    record.      United       States    v.

McHan, 386 F.3d 620, 623 (4th Cir. 2004).

                                              B.

      Steffen      asserts      that          the     district     court        erred     in

determining that he acted in an aggravating role as a manager or

supervisor of the drug conspiracy.                    He contends that undisputed

facts in the PSR indicate only that he exercised some management

responsibility over property involved in the drug conspiracy,

rather     than    management       or    supervision       of     any     of    his     co-

conspirators.       Under our precedent, in order to qualify for the

role enhancement, the government must present evidence that the

defendant    managed    or    supervised            “participants,    as    opposed       to

property, in the criminal enterprise.”                    United States v. Slade,

631 F.3d 185, 190 n.1 (4th Cir. 2011); see Cameron, 573 F.3d at

186 (observing that the Sentencing Commission clarified that the

enhancement       applies    only    to       defendants     who     organize,         lead,

manage, or supervise “‘one or more other participants’ and not

to those who just ‘exercise[] management responsibility over the

property, assets, or activities of a criminal organization’”)

(quoting U.S.S.G. § 3B1.1 cmt. n.2).

      Steffen analogizes his case to Slade, in which we reversed

a district court’s application of the enhancement to a “mid- to

upper-level” operator in a drug conspiracy due to the “absence

                                              9
of any evidence” that the defendant managed or supervised at

least one other participant in the offense.                           631 F.3d at 190-91

(emphasis added).          In that case, the defendant supplied drugs to

co-conspirators and other clients, certain co-conspirators sold

drugs    “for”     the    defendant,         and      one    co-conspirator        drove     the

defendant to various locations to deliver drugs.                                 Id. at 190.

Ultimately, we concluded that none of those activities provided

any     evidence     that       the    defendant            “actively      exercised       some

authority over other participants in the operation or actively

managed its activities.”              Id.

        By contrast, the record before us contains evidence that

Steffen exercised management or supervisory authority over one

other person.            We first observe that Steffen used his police

vehicle on two occasions to follow co-conspirator Verdugo, who

was   transporting        marijuana         in    a    separate      vehicle.          Standing

alone, as the district court acknowledged, this conduct is as

unrevealing about the defendant’s role in the offense as the

facts    presented        in   Slade.        But       it    is   also     undisputed      that

Steffen’s purpose in performing those actions was to use his

position as a state highway patrolman “to prevent any other law

enforcement       agency       from    stopping”         Verdugo’s       vehicle.        Thus,

Steffen’s    judgment          that    the       co-conspirator’s          acts    should     be

shielded     by     Steffen’s         use    of       his    patrol      car     reflected     a

management        decision      regarding          the      manner    in       which    another

                                                 10
participant in the conspiracy was to conduct the conspiracy’s

business.

        This   conclusion     of   actual    management        or    supervision    is

supported further by Steffen’s act of transferring the electric

bill for the Dorchester County property from his own name to

that of the same co-conspirator “to avoid detection.”                      This act,

which concealed Steffen’s role in the operation, also reflected

an exercise of authority over Verdugo and a management decision

regarding which co-conspirator should be assigned a particular

risk of exposure for the crime.

       Such evidence supplies what was missing in Slade, namely,

proof    that    the   defendant     made    decisions     that       reflected    his

management or supervision of the criminal activities of at least

one other person.         United States v. Bartley, 230 F.3d 667, 673

(4th Cir. 2000).        The significance of the evidence before us is

not mitigated by the fact that, in other cases affirming the

imposition of this particular sentencing enhancement, we relied

on substantially greater evidence of the defendant’s managerial

or supervisory role.          See, e.g., United States v. Llamas, 599

F.3d    381,    390    (4th   Cir.   2010)        (upholding    U.S.S.G.      § 3B1.1

enhancement based on evidence that the defendant supervised a

fraud scheme at a call center by enforcing rules, punishing non-

compliant employees, and “deciding monetary shares of the fraud

scheme’s       proceeds”);    Kellam,       568     F.3d   at       148   (justifying

                                        11
enhancement     based   on    the    defendant’s         “substantial         role”    in

“controlling the drug buys of other conspirators” and directing

the terms of payment); Bartley, 230 F.3d at 673-74 (affirming

enhancement     given   evidence         that    the    defendant      directed       the

activities of drug dealers, set prices and terms of payment,

arranged logistics, and instructed others on how to manage drug

distribution     proceeds).         Under       our    deferential      standard       of

review,   the   evidence     in   the     present      record    is    sufficient      to

support the district court’s conclusion that the defendant was a

manager    or    supervisor         of     at    least     one        other     person.

Accordingly, we conclude that the district court’s determination

was not clearly erroneous. 3



                                         III.

     For these reasons, we affirm the district court’s judgment

imposing sentence in this case.



                                                                               AFFIRMED




     3
       Because we affirm the district court’s application of the
role enhancement, we need not address Steffen’s argument that
the case must be remanded for the district court to render
factual findings on whether Steffen otherwise satisfied the
requirements for application of the safety valve provision of
the sentencing guidelines.


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