                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1672
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Zachary Troy Fennell

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                           Submitted: February 15, 2019
                               Filed: July 3, 2019
                                  [Unpublished]
                                 ____________

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
                              ____________

PER CURIAM.

      Zachary Troy Fennell pleaded guilty to conspiracy to distribute
methamphetamine, possession with intent to distribute methamphetamine, and being
a felon in possession of a firearm. Fennell received methamphetamine from
coconspirators through the mail at multiple addresses and then redistributed the drugs
throughout the Columbia, Missouri area. Police arrested Fennell and his associates
following the controlled delivery of a drug-filled package to a residence shared by
Fennell and his girlfriend.

       Fennell’s presentence report (PSR) indicated a total offense level of 39,
including a four-level leadership role enhancement pursuant to U.S.S.G. § 3B1.1(a).
Fennell objected to the enhancement, but the district court1 overruled his objection
and calculated a Guidelines range of 324–405 months’ imprisonment. Upon
consideration, the court varied downward, imposing two 280-month sentences for the
conspiracy and possession charges and one 120-month sentence for the felon-in-
possession charge, to be served concurrently. On appeal, Fennell objects to the
district court’s inclusion of the leadership role enhancement and argues the court
imposed a substantively unreasonable sentence. We disagree and affirm.

      “We review a district court’s factual findings supporting a leadership
enhancement for clear error and its legal conclusions de novo. The government must
prove a leadership enhancement is warranted by a preponderance of the evidence.”
United States v. Adetiloye, 716 F.3d 1030, 1037 (8th Cir. 2013) (internal citation
omitted).

      In determining whether the Government has met its burden, the district
      court may accept any undisputed portion of the PSR as a finding of fact.
      Unless a defendant objects to a specific factual allegation contained in
      the PSR, the court may accept that fact as true for sentencing purposes.

United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008) (cleaned up).

        Section 3B1.1(a) calls for a four-level increase to a defendant’s offense level
“[i]f the defendant was an organizer or leader of a criminal activity that involved five

      1
      The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.

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or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In determining
whether a defendant qualifies for the enhancement, a district court should consider
the defendant’s

      exercise of decision making authority, the nature of 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 planning or organizing the offense, the nature and scope
      of the illegal activity, and the degree of control and authority exercised
      over others.

U.S.S.G. § 3B1.1, cmt. n.4. A district court need not “expressly discuss every factor
listed in the application notes to § 3B1.1.” United States v. Allen, 641 F. App’x 675,
677 (8th Cir. 2016) (per curiam).

      “We interpret the terms ‘organizer’ and ‘leader’ broadly. For a defendant to be
an organizer or leader, he need only direct one other participant.” Adetiloye, 716 F.3d
at 1037 (internal citation omitted). “If a defendant assumed organizing or leadership
functions, such as recruiting others to join the criminal activity, a four-level
enhancement is justified.” United States v. Garcia, 512 F.3d 1004, 1005 (8th Cir.
2008).

      Fennell concedes that he conspired to distribute methamphetamine and that the
conspiracy involved five or more participants. But, Fennell objects to the court’s
finding that he was the conspiracy’s “leader,” claiming that “[a]ll members of the
conspiracy were free to do whatever they wanted to do in the management of their
own individual controlled substance retail businesses.” Appellant’s Br. at 9. Fennell
further claims that the district court developed an insufficient record to conclude he
was a leader in the conspiracy. Fennell is incorrect on both points. The record does
not support Fennell’s claim that his associates acted independently. The record does,



                                         -3-
however, show the district court had a sufficient factual record and adequately
addressed the leadership issue in its sentencing analysis.

       At sentencing, the district court stated that it had reviewed the PSR, and it
heard argument from both sides on the leadership issue. It also specifically asked
Fennell about certain aspects of his relationship with his coconspirators. We have
previously affirmed the imposition of the leadership role enhancement where the
defendant recruited associates, Garcia, 512 F.3d at 1006; directed another individual
to transfer money and “receive and hold mail” on his behalf, Adetiloye, 716 F.3d at
1037; instructed coconspirators on how to process drug proceeds, United States v.
Lopez, 328 F. App’x 352, 354 (8th Cir. 2009) (per curiam); and supplied “dealer-
quantities” of drugs to others, Razo-Guerra, 534 F.3d at 976. These facts are all
present in this case.

       The PSR contained multiple uncontested allegations supporting Fennell as a
conspiracy leader. Fennell sold drugs to individuals who would then resell those
drugs to others. After Fennell was assaulted and robbed, three men came from
California to assist Fennell with his operation, and Fennell provided them with
firearms. Fennell instructed certain coconspirators to deposit and transfer drug
proceeds on his behalf. And, Fennell once instructed a coconspirator to write “return
to sender” on a drug delivery and then requested that the individual dispose of
evidence associated with that package. Additionally, following his arrest, Fennell
instructed another coconspirator to remove evidence from both her residence and his
residence. Fennell did not object to these PSR allegations. Consequently, the court
could “accept [them] as true for sentencing purposes.” United States v. Moser, 168
F.3d 1130, 1132 (8th Cir. 1999).

       At sentencing, Fennell also conceded that he had directed that drugs be mailed
to different women’s addresses for him to retrieve. Fennell, though, claimed the
women had “volunteered” to receive his packages. Sentencing Tr. at 5, United States

                                         -4-
v. Fennell, No. 2:15-cr-04067-SRB-1 (W.D. Mo. Apr. 16, 2018), ECF. No. 525. On
this record, we conclude that the district court considered Fennell’s decisionmaking
authority, the nature of his participation, as well as his recruitment and organizing
activities. The district court did not err in finding that Fennell’s sentence should be
enhanced because of his role as a leader of the conspiracy.

       Fennell’s claim that the district court imposed a substantively unreasonable
sentence also lacks merit. “We review the substantive reasonableness of a sentence
under the deferential abuse-of-discretion standard . . . .” United States v. Lazarski,
560 F.3d 731, 733 (8th Cir. 2009). Fennell argues that the Guidelines recommend
disproportionately high sentences for methamphetamine distribution as compared to
the distribution of other dangerous drugs. The district court, in fact, agreed with
Fennell, and this agreement underlay the court’s substantial 44-month downward
variance from the low-end Guidelines range of 324 months. As we have repeatedly
noted, where a court varies downward, “it is nearly inconceivable that the court
abused its discretion in not varying downward still further.” Id. The district court did
not abuse its discretion.

      The judgment of the district court is affirmed.
                     ______________________________




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