                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0613n.06
                           Filed: October 14, 2008

                                            No. 06-6560

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE EASTERN
               v.                                         )        DISTRICT OF TENNESSEE
                                                          )
ALEX ALEPIN,                                              )
                                                          )
      Defendant-Appellant.                                )
_________________________________________



BEFORE: MARTIN, GRIFFIN, and GIBSON, Circuit Judges.*

       GRIFFIN, Circuit Judge.

       Defendant Alex Alepin appeals his below-the-Guidelines sentence of thirty-eight months of

imprisonment and four years of supervised release, imposed pursuant to a guilty plea to one count

of conspiracy to distribute and possession with intent to distribute in excess of 100 kilograms of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Alepin raises two

challenges to his sentence: (1) whether the district court erred in applying a three-level enhancement

to his base offense level under U.S.S.G. § 3B1.1(b) (2005) for defendant’s perceived role as a

“manager or supervisor” in the criminal activity; and (2) whether the sentence is procedurally and

substantively unreasonable, and excessive, in light of the sentencing factors set forth in 18 U.S.C.

       *
        The Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
No. 06-6560
United States v. Alepin


§ 3553(a). Alepin contends in this latter regard that the district court failed to consider adequately

his voluntary withdrawal from the conspiracy years before the charges were brought, his cooperation

with authorities, and his subsequent crime-free life. For the reasons stated below, we affirm Alepin’s

sentence.

                                                  I.

       Defendant Alepin was born and raised in Canada and came to the United States in 1999 to

play professional hockey. He retired from hockey in 2004 and is currently a Tennessee resident.

       On February 27, 2006, the government filed a one-count information charging Alepin with

conspiracy to distribute and possession with intent to distribute in excess of 100 kilograms of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. The charge stems from

defendant’s participation, in 2001 and 2002, in the distribution and sale of marijuana brought into

the states of New York and Pennsylvania from a source in Quebec, which he then transported, or

paid truck drivers to transport, to his residence in Tennessee. Alepin sold the marijuana to three

middlemen, who in turn sold it to a network of other customers. Alepin ceased his participation in

the conspiracy in 2002, although he did not voluntarily turn himself in. The marijuana ring

continued to operate, and Alepin was criminally charged in 2006.

       On June 21, 2006, Alepin entered into a plea agreement and pleaded guilty to the one-count

information. He cooperated fully with the government in its investigation. Alepin admitted that he

personally received and sold at least 100 kilograms, but less than 400 kilograms, of marijuana while




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No. 06-6560
United States v. Alepin


participating in the conspiracy. The parties stipulated to a “Factual Basis” underlying the plea, which

provided:

       Defendant Alepin is personally responsible for at least one-hundred (100) kilograms,
       but less than four-hundred (400) kilograms, of marijuana.

       From approximately January, 2001, defendant Alepin received quantities of
       hydroponic marijuana, also known as “kind bud,” from Jean Claude Dubois and
       Sebastien Flocari. Dubois and Flocari arranged for the transportation of this
       marijuana from sources of supply in Quebec, Canada.

       In 2001, defendant Alepin traveled to New York City to obtain twenty-to-fifty pound
       loads of marijuana from couriers who were sent by Dubois and Flocari. Alepin
       would then transport this marijuana to his residence in the Eastern District of
       Tennessee. Defendant Alepin paid approximately $2,800 to $2,900 per pound and
       sold the marijuana for approximately $3,200 per pound to customers in the Eastern
       District of Tennessee. Luc Hebert, who was known to defendant Alepin as Poppy,
       worked for Dubois and Flocari in arranging transportation of marijuana.

       Defendant Alepin engaged individuals in the Eastern District of Tennessee to
       transport marijuana from New York and other locations to the Eastern District of
       Tennessee. Sam Latham went to upstate New York in the summer of 2002 to obtain
       loads of marijuana from defendant Alepin’s source of supply and transport it to the
       Eastern District of Tennessee. Dwight Newport made at least one trip to New York
       to obtain multiple-pound quantities of this marijuana and transport it to the Eastern
       District of Tennessee. Dwight Newport and Jason Kiser were two of defendant
       Alepin’s customers in Knoxville, Tennessee. Defendant Alepin paid Dwight
       Newport to make trips to Pennsylvania to obtain marijuana. Dwight Newport met
       a semi tractor trailer at a location in Pennsylvania and obtained approximately 15-20
       pounds of hydroponic marijuana and transported it to the Eastern District of
       Tennessee on behalf of defendant Alepin.

       Coconspirator Flocari arranged for semi tractor trailer deliveries of “kind bud”
       marijuana to defendant Alepin in the Eastern District of Tennessee. Coconspirator
       Flocari paid drivers to transport the marijuana in hidden compartments located on the
       trucks. Sometimes, defendant Alepin met the deliveries of this marijuana by tractor
       trailer trucks at least three times at locations in Strawberry Plains, Tennessee.
       Dwight Newport accompanied defendant Alepin on at least one of these trips.


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United States v. Alepin


       A presentence report (“PSR”) was prepared and provided to the parties. In light of the

stipulated amount of marijuana, Alepin’s base offense level was set at 26. Pursuant to U.S.S.G. §

3B1.1(a), the probation officer added four levels for Alepin’s involvement as an “organizer or

leader” of a criminal activity involving five or more participants, but made a three-level downward

adjustment for defendant’s acceptance of responsibility. His post-adjustment total offense level was

therefore 27. With a criminal history category of I (no prior criminal record), the resultant advisory

Guidelines range was 70 to 87 months’ imprisonment. Under 21 U.S.C. § 841(b)(1)(B), the

applicable statutory minimum sentence is 5 years, with a maximum of 40 years.

       Defendant objected to the recommended four-level enhancement under § 3B1.1(a), arguing

that he had no leadership role in the conspiracy. The government filed a motion for downward

departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. Based on Alepin’s substantial

assistance in the investigation and his lack of criminal history, the government recommended a

sentence of 42 months, a forty-percent reduction from the bottom end of the Guidelines range.

       At the sentencing hearing held on November 29, 2006, defense counsel objected to Alepin’s

classification as an “organizer or leader” and resultant sentence enhancement. Defense counsel

emphasized that he was not challenging the Factual Basis for the guilty plea, but argued that

defendant was not a leader or organizer, particularly in light of the fact that the conspiracy continued

for quite some time without him, until the other participants were finally arrested. Defense counsel

urged leniency based on defendant’s voluntary withdrawal from the criminal activity, his cooperation

with the government’s investigation, his lack of criminal history and concomitant low risk of


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No. 06-6560
United States v. Alepin


recidivism, strong family support, and his reformed, exemplary behavior since 2002. Numerous

letters from local friends and family were introduced, attesting to Alepin’s positive contributions to

the community.

        Alepin testified at the sentencing hearing, confirming the undisputed facts underlying his

guilty plea. He testified that he lost his construction and landscaping business as a result of his

incarceration in this case and expressed remorse for his conduct.

        The district court ultimately assessed a three-level enhancement pursuant to U.S.S.G. §

3B1.1(b) for defendant’s role as a “manager or supervisor,” rather than the recommended four-level

enhancement as an “organizer or leader” under § 3B1.1(a). In doing so, the court noted in pertinent

part:

        Mr. Alepin, according to the factual basis agreed upon by you and the Government
        concerning the actual criminality you’ve been charged here with, you made trips to
        various places – New York, maybe Pennsylvania, maybe up here at Straw Plains –
        on numerous occasions; and you obtained marijuana in large quantities, 15 to 20 to
        30 pounds at a time. And you divided that up among some other people, local people
        here; and they sold it to local consumers.

        You were, therefore, a – in the Court’s opinion – a manager or supervisor of this
        conspiracy. And a three-level increase pursuant to [§ 3B1.1(b)] is warranted, but not
        as . . . an organizer or leader but as a manager and supervisor only so that your base
        offense level is 26. With a criminal history category of I, the advisory guideline
        range is 63 to 78 months.

        Taking into consideration the government’s motion for a downward departure of forty

percent based on defendant’s substantial assistance and the nature and circumstances of the offense

and defendant’s history, the district court granted the government’s motion and sentenced Alepin to



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No. 06-6560
United States v. Alepin


thirty-eight months of imprisonment and four years of supervised release. Alepin now timely

appeals his sentence.

                                                    II.

        First, Alepin maintains that the factual findings set forth by the district court at the sentencing

hearing do not support the application of the managerial role enhancement under U.S.S.G. §

3B1.1(b). He argues that the court neither made the requisite findings of fact regarding the number

of people involved in the conspiracy nor determined whether he engaged in a leadership or

managerial role over another participant. Alepin further suggests that there is no proof in the record

that he exercised control over his customers’ sales of marijuana to others (in terms of price, quantity,

or customer) or that he received a larger share of the fruits of the crime than other members in the

conspiracy, so as to support the enhancement. He contends that although he conceded, per the

Factual Basis, that he would “engage others” to transport marijuana, he made no admission that he

directed others in the operation. In short, Alepin argues that his relationship with the other

coconspirators was merely that of buyer and seller.

        Although the appropriate standard of review of a Guidelines role enhancement under

U.S.S.G. § 3B1.1 remains an open question in our court, see United States v. Moncivais, 492 F.3d

652, 660 (6th Cir. 2007), we need not settle the issue here because the present circumstances support

affirmance of the enhancement under either option – a deferential or de novo standard of review.

The burden lies with the government to prove, by a preponderance of the evidence, that a particular

sentencing enhancement applies. United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003).


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United States v. Alepin


       U.S.S.G. § 3B1.1 provides:

       Based on the defendant’s role in the offense, increase the offense level as follows:

       (a) If the defendant was an organizer or leader of a criminal activity that involved
       five or more participants or was otherwise extensive, increase by 4 levels.

       (b) If 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,
       increase by 3 levels.

       (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal
       activity other than described in (a) or (b), increase by 2 levels.

U.S.S.G. § 3B1.1 (2005). Application Note 1 to § 3B1.1 defines a “participant” as “a person who

is criminally responsible for the commission of the offense, but need not have been convicted.”

       Application Note 2 of the Commentary accompanying this Guideline further explains that

“[t]o qualify for an adjustment under this section, the defendant must have been the organizer, leader,

manager or supervisor of one or more other participants.” See also Moncivais, 492 F.3d at 661

(“‘[T]here need only be evidence to support a finding that the defendant was a manager or supervisor

of at least one other participant in the criminal activity, and that the criminal activity involved five

or more participants or was otherwise extensive.’”) (quoting United States v. Henley, 360 F.3d 509,

517 (6th Cir. 2004)). Application Note 4 to § 3B1.1 sets forth the factors to be considered in

classifying the defendant’s role:

       In distinguishing a leadership and organizational role from one of mere management
       or supervision, titles such as “kingpin” or “boss” are not controlling. Factors the
       court should consider include the 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


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No. 06-6560
United States v. Alepin


       in planning and organizing the offense, the nature and scope of the illegal activity,
       and the degree of control and authority exercised over others.

       It is not necessary that a defendant meet each of these requirements. United States v. Gates,

461 F.3d 703, 709 (6th Cir. 2006) (citing United States v. Ospina, 18 F.3d 1332, 1337 (6th Cir.

1994)). “The key issue is not direct control or ultimate decision-making authority, but rather the

defendant’s ‘relative responsibility.’” Henley, 360 F.3d at 517 (citing United States v. Gaitan-

Acevedo, 148 F.3d 577, 595-96 (6th Cir. 1998)). “‘Merely playing an essential role in the offense

is not equivalent to exercising managerial control over other participants and/or the assets of a

criminal enterprise.’” United States v. LaLonde, 509 F.3d 750, 765 (6th Cir. 2008) (quoting United

States v. Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000)).

       In the present case, Alepin concedes that the conspiracy involved five or more participants.

Defense counsel admitted that defendant played an “integral part” in the conspiracy because he

“brought dope from Point A to Point B.” He nonetheless maintained that defendant was not a leader

or supervisor of the dope-smuggling operation.

       However, as the government argues persuasively, the Factual Basis clearly indicates that

Alepin was the link between his Canadian suppliers – Dubois and Flocari – and the three Tennessee

distributors – Latham, Newport, and Kaiser. During a two-year period, he was responsible for the

delivery of between 100 and 400 kilograms of marijuana from Canada to Tennessee. He paid the

Canadian sources $2,800 to $2,900 a pound and resold the marijuana to the three distributors for

$3,200 a pound. Alepin was notified when a shipment from Canada was ready to be delivered and,

if he was unable to pick it up in person, he sent someone else to do so. The Factual Basis details

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United States v. Alepin


specific instances in which Alepin “engaged” both Latham and Newport to travel to upstate New

York to retrieve and transport a load of marijuana from defendant’s Canadian sources, and another

separate occasion when Newport met a semi-tractor trailer in Pennsylvania and transported the

marijuana to Tennessee “on behalf of Alepin.”

       This is consistent with a managerial or supervisory role. Alepin received a call from Canada,

determined how the marijuana was going to be picked up, sent another participant in the conspiracy

to retrieve it if he was unavailable, and handled the distribution among the three dealers, making a

profit on each pound. We have affirmed a district court’s imposition of managerial role sentencing

enhancements under similar circumstances. See, e.g., Henley, 360 F.3d at 517 (evidence sufficient

to support § 3B1.1(b) enhancement where the defendant controlled as many as four other persons

in the flow of drugs and to help him collect drug debts); United States v. Solorio, 337 F.3d 580, 601

(6th Cir. 2003) (supervisory-role enhancement affirmed where uncontroverted evidence showed that

the defendant recruited another participant as an accomplice in a drug conspiracy, planned and

directed all of recruit’s drug activities, and recruit delivered bags of cocaine and money and kept

records for the defendant); United States v. Munoz, 233 F.3d 410, 416 (6th Cir. 2000) (finding no

error in application of § 3B1.1(b) enhancement where evidence showed that the defendant “was in

repeated contact with the informant [in scheduled drug deal] and played a role in coordinating both

the delivery of and payment for the amphetamine.”); United States v. Bingham, 81 F.3d 617, 629-30

(6th Cir. 1996) (imposition of managerial-role enhancement not clearly erroneous where evidence




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United States v. Alepin


showed that the defendant was source of supply of crack cocaine, contacted supplier, negotiated

purchase price, and made arrangements for couriers to transport cocaine from New York to Ohio).

        Most recently, in United States v. Jeross, 521 F.3d 562 (6th Cir. 2008), we held that the

district court did not err in imposing the § 3B1.1(b) enhancement in light of testimony establishing

that one of the defendants handled drug transactions with individual distributor-sellers, received

drugs from Canada, permitted pills to be repackaged for distribution in her home, doled out the

repackaged pills to four or five distributors, kept financial and transactional records, collected profits

that distributors returned to her, and passed profits on to another participant. “Her role as a

distributor may have placed her ‘in the middle of the drug distribution chain’ as she asserts, but it

was no less important for that reason, and does not preclude the finding that she was a manager who

exercised decisionmaking authority.” Id. at 580.

        Here, Alepin’s managerial status in the conspiracy is likewise supported by the stipulated

Factual Basis and the district court’s sufficient factual findings pertaining to his role in the offense.

A “reasonable reading of the district court’s discussion of the evidence on this issue” justifies the

court’s application of the three-level enhancement under § 3B1.1(b). United States v. Caseslorente,

220 F.3d 727, 735 (6th Cir. 2000) (internal citation and quotation marks omitted). We therefore

conclude that enhancement of Alepin’s sentence under § 3B1.1(b) was proper.

                                                   III.

        Alepin next contends that his sentence is procedurally and substantively unreasonable and

excessive under the circumstances. His claim of unreasonableness is based upon the district court’s


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No. 06-6560
United States v. Alepin


alleged failure to consider adequately, and address expressly, all of the relevant sentencing factors

under 18 U.S.C. § 3553, including Alepin’s post-offense, pre-arrest rehabilitation, his cooperation

with authorities, the loss of his business and damage to his reputation, and his admission of guilt.

Alepin notes that it is undisputed that he voluntarily stopped his illegal activities and withdrew from

the conspiracy in 2002. Alepin further asserts that his sentence is excessive in view of the statutory

requirement that the sentence be “sufficient, but not greater than necessary” to fulfill the statutory

sentencing goals, as provided in 18 U.S.C. § 3553(a).

       This court reviews a district court’s sentencing determination for procedural and substantive

reasonableness, using a deferential abuse-of-discretion standard. United States v. Houston, 529 F.3d

743, 753 (2008) (citing Gall v. United States, — U.S. — , 128 S. Ct. 586, 594 (2007)). When we

undertake reasonableness review of a sentence,

       we first ensure that the district court committed no significant procedural error, such
       as . . . failing to consider the [18 U.S.C. ] § 3553(a) factors . . . or failing to
       adequately explain the chosen sentence. Assuming that the district court’s sentencing
       decision is procedurally sound, the appellate court should then consider the
       substantive reasonableness of the sentence imposed under an abuse-of-discretion
       standard. For a sentence to be substantively reasonable, it must be proportionate to
       the seriousness of the circumstances of the offense and offender, and sufficient but
       not greater than necessary, to comply with the purposes of § 3553(a).

United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (internal citations and quotation marks

omitted).

       “Section § 3553(a) mandates that a district court imposing a sentence consider the

defendant’s guideline range; the nature of the offense; the characteristics of the defendant; the need

to deter criminal conduct, protect the public, and provide the defendant with appropriate treatment;

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United States v. Alepin


and the need to avoid sentencing disparities with defendants who have been found guilty of the same

conduct and who have similar criminal histories.” Id. at 573-74. A ritual incantation of the §

3553(a) factors to affirm a sentence is not required. United States v. Williams, 436 F.3d 706, 709

(6th Cir. 2006). Rather, “[t]he sentencing judge should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, — U.S. — , 127 S. Ct. 2456, 2468 (2007).

        Alepin’s below-the-Guidelines sentence is presumed not to be unreasonably severe. Curry,

536 F.3d at 573. Moreover, because Alepin made no objection to the sentence after the district court

announced it, the procedural reasonableness of the sentence is reviewed for plain error. United

States v. Milan, 516 F.3d 479, 486-87 (6th Cir. 2007) (citing United States v. Vonner, 516 F.3d 382

(6th Cir. 2008) (en banc)). Thus, Alepin must show (1) error, (2) that was obvious or clear, (3) that

affected his substantial rights, and (4) that affected the fairness, integrity, or public reputation of the

judicial proceedings. United States v. Phillips, 516 F.3d 479, 487 (6th Cir. 2008). This is a “heavy

burden,” id., which Alepin has not met in this case.

        The sentencing record reflects that the district court listened to Alepin’s arguments and

testimony and interspersed pertinent questions and comments throughout the hearing. The district

court acknowledged, albeit in general terms, the relevant § 3553(a) factors and explained that these

factors supported a sentence at the bottom of the recommended Guidelines range. The court

acknowledged Alepin’s good behavior and community reputation, but further noted that defendant

did not withdraw “soon enough” and did not turn himself in. The court carefully considered


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United States v. Alepin


Alepin’s objection to the § 3B1.1 enhancement and accepted his argument in part, recalculating the

advisory Guidelines range in light of its determination that defendant was a manager/supervisor, not

an organizer or leader in the conspiracy. The district court then departed downward forty percent

from the applicable Guidelines range of 63 to 78 months based upon Alepin’s substantial assistance

and imposed a 38-month sentence.

       In sum, the record demonstrates that the district court considered each of defendant’s

arguments in mitigation, but found that these arguments did not merit a lower sentence. Alepin has

not shown that the district court’s statement of reasons was plainly erroneous or that any omissions

in the court’s sentencing analysis affected his substantial rights. Notwithstanding Alepin’s good

behavior since pulling out of the marijuana distribution conspiracy, he was involved in and profited

from a sizeable drug operation. We therefore conclude that Alepin’s sentence is both procedurally

and substantively reasonable.

                                                IV.

       For these reasons, we affirm the judgment of the district court.




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