          United States Court of Appeals
                     For the First Circuit


No. 17-1382

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                           LEON PAYNE,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                   Kayatta, Stahl, and Barron,
                         Circuit Judges.


     Peter E. Rodway and Rodway & Horodyski, P.A. on brief for
appellant.
     Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.


                        January 31, 2018
           KAYATTA, Circuit Judge.       The guidelines used by federal

judges to gauge the appropriate length of sentences in criminal

cases call for considering the defendant's role in the criminal

activity giving rise to the conviction.           With exceptions not

relevant here, those guidelines recommend a longer sentence for

one who supervises the criminal activity of another, an even longer

sentence for one who manages or supervises criminal activity

involving five or more participants, and a sentence still longer

for an "organizer or leader" of criminal activity involving five

or more participants.     See U.S. Sentencing Guidelines Manual

("U.S.S.G.") § 3B1.1 (U.S. Sentencing Comm'n 2016).

           In this case, the district court found Leon Payne to

have been an organizer or leader of a conspiracy of five or more

persons to procure and distribute cocaine and heroin in and around

Portland, Maine.   As a result, the district court enhanced Payne's

offense level by four levels, resulting in a guideline sentencing

range of seventy to eighty-seven months.       Payne argues, as he did

in the district court, that the evidence supported only a three-

level enhancement for being a "manager or supervisor," rather than

an organizer or leader, calling for a guideline range of sixty-

three to seventy-eight months.    Because Payne preserved his claim

of factfinding error by the sentencing court, we review for clear

error.   United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017).

For the following reasons, we affirm his sentence.


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                                         I.

             We distinguish a "leader" or "organizer" of a criminal

enterprise from a lesser "supervisor" or "manager" by considering,

among other things, the factors discussed in an application note

to Section 3B1.1.         Those factors are "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 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,

comment. (n.4) (the "application note").

             The evidence tendered by the government to prove Payne's

role in the criminal conspiracy consisted primarily of recordings

of wiretapped conversations between Payne and two co-conspirators

made while Payne was temporarily incarcerated in New York for a

probation violation a few months before his arrest in Maine.

Additionally, the pre-sentence report ("PSR") stated, and Payne

did not contest, that he was the person who arranged for the

acquisition of drugs from New York via a courier.                   Finally, the

parties agreed below and agree on appeal that the district court

reasonably found five or more participants in the relevant criminal

activity.

             After reviewing the evidence, the district court stated:


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                I reviewed the language of 3B1.1 and the
          commentary.    I  find   this  defendant,   as
          indicated by the Government, did exercise a
          high degree of control and authority. He was
          the leader of this criminal activity. He
          organized it. Unfortunately for him, his
          degree of organization dissolved during the
          period of time he was in jail and he was
          complaining    about   how  disorganized   his
          subordinates were and how they screwed up the
          plan.
                The fact that he was out while someone
          else got paid is often the case that someone
          is running the show. I find a four level
          enhancement.

The district court also found "the facts as set forth in the

[PSR]."

          Payne does not challenge any of the evidence in the

sentencing record.   Rather, he argues that the court's foregoing

factual findings insufficiently supported the conclusion that

Payne was an "organizer or leader," and that the evidence put

forward by the government could not support such a conclusion.

          The district court's findings collectively tracked four

of the relevant factors set forth in the application note: Payne's

decision-making authority, the nature of Payne's participation in

the conspiracy, the degree of Payne's participation in organizing

the offense, and the control Payne exercised over others.       See

U.S.S.G. § 3B1.1, comment. (n.4.)     Contrary to Payne's arguments

to us, there is no requirement that the district court specifically

find whom the defendant controlled or how he did so.     See United

States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (there is "no


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such requirement in sentencing determinations" that a district

court provide "subsidiary findings or . . . an explanation as to

the district court's own reasoning process" provided the district

court's findings are sufficient to enable appellate review).     The

record, in turn, supported the district court's findings.      Payne

was recorded reminding a co-conspirator that Payne had previously

given him instructions about what to do if anything went wrong,

describing whom Payne had and had not left "in charge of" the

operation while he was in jail, and criticizing the performance of

other participants.   As noted, his own activity included arranging

for a courier to get the drugs from New York to Maine.       And the

court's mention of Payne being "out while someone else got paid"

fairly suggests that Payne was not at the retail end of the

transactions in the plan, but rather had made, and lost, an initial

investment to purchase the drugs.      See United States v. Matthews,

749 F.3d 99, 105 (1st Cir. 2014) (the court may "draw commonsense

inferences from the evidence").

          Payne concedes that he was a supervisor or manager.    But

to say he was only that is to imply that someone else was the

leader to whom the supervisor reported.     Here, though, there is no

evidence that any participant occupied a position superior or equal

to that occupied by Payne.   In other words, this was not a five-

person group with one supervisor reporting to someone else who

organized or led the efforts of several groups.     This was a group


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of at least five participants in which Payne is fairly seen as a

leader accountable to no one else.

             It is true that the district court did not rely on all

of the factors listed in the application note.             For example, the

district court did not find that Payne was paid a disproportionate

share of the proceeds.          Our precedent is clear, though, that

"[t]here need not be evidence of every factor before a defendant

is found to be a leader or organizer," United States v. Talladino,

38 F.3d 1255, 1260 (1st Cir. 1994) (internal quotation marks

omitted).

             Our conclusion here also dispenses with Payne's argument

that   the    record   as   a   whole   cannot   support      the   four-level

enhancement.     Reversal for clear error requires the court, "upon

whole-record-review," to have formed a "strong, unyielding belief

that a mistake has been made."          Nuñez, 852 F.3d at 144 (internal

quotation marks omitted).        We are left with no such belief here.

The uncontested factual record supports the court's conclusion

that Payne "was the leader of this criminal activity."

             Accordingly,   finding     no   clear   error,   we    affirm   the

district court.




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