United States Court of Appeals
            For the Eighth Circuit
        ___________________________

                No. 13-1719
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

               Randy Frank Irlmeier

      lllllllllllllllllllll Defendant - Appellant
         ___________________________

                No. 13-1822
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

               Paul Joseph Irlmeier

      lllllllllllllllllllll Defendant - Appellant
                      ____________

     Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
                 ____________
                          Submitted: December 18, 2013
                              Filed: April 28, 2014
                                 ____________

Before BYE, BRIGHT, and SMITH, Circuit Judges.
                            ____________

SMITH, Circuit Judge.

      Randy and Paul Irlmeier each pleaded guilty to one count of conspiracy to
manufacture at least 100 marijuana plants, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B)(vii). The district court1 sentenced both defendants to 60 months'
imprisonment—the mandatory minimum. The district court determined that their
sentences warranted an aggravating role enhancement pursuant to U.S.S.G. § 3B1.1,
which precluded them from obtaining safety-valve relief under 18 U.S.C. § 3553(f).

       On appeal, the Irlmeiers aver that the district court erred in imposing the
aggravating role enhancement to preclude safety-valve relief. They contend that the
enhancement should not apply where the activities of their coconspirators were purely
voluntary and done absent the Irlmeiers' directions or instructions. Furthermore, the
Irlmeiers contend that they should not be viewed as having an elevated or aggravating
role in the offense because their coconspirators' activities were so minimal. We
affirm.

                                   I. Background
       In October 2010, the Iowa Division of Narcotics Enforcement and the Audubon
County Sheriff's Department executed a search warrant at Randy Irlmeier's ("Randy")
farm in Coon Rapids, Iowa. Officers discovered a marijuana-grow operation. Officers


      1
       The Honorable James E. Gritzner, Chief Judge of the United States District
Court for the Southern District of Iowa.

                                        -2-
found marijuana plants, an elaborate lighting and ventilation system, a calendar used
to track the plants' growth, and tools and supplies used to cultivate the plants. Officers
also found an outbuilding on the property that served as a drying room for the
marijuana. In total, authorities seized almost 13 kilograms of marijuana from Randy's
farm.

      When interviewed, Randy identified his nephew, Paul Irlmeier ("Paul"), as
someone who assisted him with the marijuana-grow operation. Thus, officers
obtained a search warrant for Paul's farm in Audubon, Iowa, later that same day.
Officers found over 116 grams of marijuana on the property.

       Randy and Paul were charged with (1) conspiracy to manufacture at least 1,000
marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii); (2)
conspiracy to distribute at least 100 kilograms of marijuana, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(B)(vii); and (3) manufacturing at least 50 marijuana plants, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), as well as 18 U.S.C. § 2. Both
Randy and Paul pleaded guilty to conspiracy to manufacture at least 100 marijuana
plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(vii). The statutory
mandatory minimum for this offense is 60 months' imprisonment. See 21 U.S.C.
§ 841(b)(1)(B). The government dropped the remaining counts.

       Both of their presentence reports (PSRs) recommended a total offense level of
23 and a criminal history category of I. Included in the calculation of each offense
level was a four-level enhancement under U.S.S.G. § 3B1.1(a) for being an organizer
or leader of criminal activity. Most importantly, this enhancement precluded both
defendants from receiving statutory safety-valve relief. As a result, the PSRs
calculated their Guidelines ranges to be 46–57 months. Because the mandatory
minimum is 60 months, the Guidelines recommendation became 60 months. See
U.S.S.G. § 5G1.1(b).



                                           -3-
       Randy and Paul objected to the PSRs' determination that they were leaders or
organizers of this criminal activity. Randy contended that the role "enhancement
[was] inapplicable and entirely unsupported by the facts of this case. Randy Irlmeier
never directed or recruited anyone as an accomplice or co-conspirator." Paul argued
that he never directed anyone to water marijuana plants. He asserted more generally
that there existed no "factual basis for a finding of a role enhancement."

      The district court conducted a two-day,2 joint sentencing hearing. The
government presented seven witnesses to support the PSRs' application of the
aggravating role enhancement. After receiving these testimonies, the district court
concluded:

             Having considered all of the evidence and the issue of whether or
      not an enhancement under 3B1.1 of the guidelines applies, the court
      recognizes that the amount of that enhancement is somewhat
      immaterial—well, it's not somewhat immaterial; it's completely
      immaterial, frankly, to the situation of this case because if the court
      finds there's an enhancement, it means that safety valves aren't going to
      apply.

             And so while it seems to me that based upon a preponderance of
      the evidence and the state of the law—I certainly understand the
      arguments counsel have been making. It seems to me that they are policy
      arguments that are somewhat beyond this court's responsibility to apply
      the law as I understand it based upon the facts that I have and judging
      those facts at a level of the preponderance of the evidence. I believe that
      a role enhancement at some level is supported by the record in this case.
      I think it is more likely a three-level, rather than a four-level
      enhancement; but as indicated that really doesn't become material under
      the circumstances of this case.


      2
      Severe weather delayed the second day of the hearing until approximately one
month later.

                                         -4-
             The court finds that the enhancement does apply. That means
      under the circumstances . . . this case would present for both defendants
      at an offense level 23, with a criminal history category of I. That
      generates a guideline range of 46 to 57 months, but in the absence of
      relief from the mandatory minimum, both defendants are looking at a
      mandatory minimum of 60 months, which becomes the guideline range.

The district court then sentenced both defendants to the mandatory minimum of 60
months' imprisonment.

                                     II. Discussion
       On appeal, both Randy and Paul dispute the district court's application of the
aggravating role enhancement. "The district court's factual findings, including its
determination of a defendant's role in the offense, are reviewed for clear error, while
its application of the guidelines to the facts is reviewed de novo." United States v.
Gaines, 639 F.3d 423, 427–28 (8th Cir. 2011) (quotations and citations omitted).
Therefore, to reverse the district court, we must have a "definite and firm conviction"
that the district court erred. United States v. Moreno, 679 F.3d 1003, 1004 (8th Cir.
2012) (per curiam) (quotation and citations omitted). "If the district court chose a
permissible view of the evidence, its holding is not clearly erroneous." Id. (citation
omitted).

       According to 18 U.S.C. § 3553(f), a defendant may be eligible for a "safety
valve." The so-called safety valve allows the district court to avoid imposing a
mandatory minimum sentence. 18 U.S.C. § 3553(f). The safety valve, if applicable,
would benefit defendants like Randy and Paul who were convicted of a crime under
21 U.S.C. §§ 841 and 846. Id. The statute enumerates five other eligibility
requirements. Id. The only eligibility requirement at issue in this case is whether "the
defendant was [ ] an organizer, leader, manager, or supervisor of others in the offense,
as determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(4).



                                          -5-
     The Sentencing Guidelines elaborate on who constitutes an organizer, leader,
manager, or supervisor by providing for an aggravating role enhancement. The
Guidelines state:

      (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. As the district court noted, the precise level of enhancement is
immaterial here. The relevant inquiry is whether the defendants qualify under any of
these subsections such that they are an organizer, leader, manager, or supervisor and
thus ineligible for safety-valve relief. The Guidelines further explain:

      To qualify for an adjustment under this section, the defendant must have
      been the organizer, leader, manager, or supervisor of one or more other
      participants. An upward departure may be warranted, however, in the
      case of a defendant who did not organize, lead, manage, or supervise
      another participant, but who nevertheless exercised management
      responsibility over the property, assets, or activities of a criminal
      organization.

U.S.S.G. § 3B1.1 cmt. n.2 (emphasis added). We have construed this application note
to require that the defendant organize or lead only one participant to trigger the
enhancement and thus preclude safety-valve relief. See United States v. McMullen,
86 F.3d 135, 138 (8th Cir. 1996).

                                         -6-
      The Guidelines also note:

      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 in
      planning or organizing the offense, the nature and scope of the illegal
      activity, and the degree of control and authority exercised over others.
      There can, of course, be more than one person who qualifies as a leader
      or organizer of a criminal association or conspiracy. This adjustment
      does not apply to a defendant who merely suggests committing the
      offense.

U.S.S.G. § 3B1.1 cmt. n.4. Although the purpose of comment note four is to help
distinguish between leadership and management roles, we have considered the
comment note instructive in determining whether a defendant qualifies for the safety
valve. See United States v. Gamboa, 701 F.3d 265, 267 (8th Cir. 2012).

       The government must demonstrate by a preponderance of the evidence that the
defendants warrant the enhancement. Id. "Merely distributing or selling drugs is not
sufficient for the enhancement." Id. (quotation, alteration, and citation omitted).
Nonetheless, we define "organizer" and "leader" broadly and "manager" and
"supervisor" quite liberally. United States v. Lopez, 431 F.3d 313, 317–18 (8th Cir.
2005) (citations omitted). In fact, defendants are subject to this enhancement even
where they manage or supervise only one other participant in the conspiracy. Id. at
318; McMullen, 86 F.3d at 138. Furthermore, the enhancement "may apply even if the
management activity was limited to a single transaction." Lopez, 431 F.3d at 318
(quotation and citations omitted). The "defendant[s] must direct or enlist the aid of
others." Id. (quotation and citation omitted); see also United States v. Rowley, 975



                                         -7-
F.2d 1357, 1364 n.7 ("[W]e have always required evidence that the defendant
directed or procured the aid of underlings." (citations omitted)).

       Additionally, "[w]e have never construed the terms . . . so narrowly as to
restrict application of the enhancement solely to the organizer who first instigated the
criminal activity." United States v. Noe, 411 F.3d 878, 889 (8th Cir. 2005) (quotation
and citation omitted). In fact, the defendant need not be the only leader or organizer,
and the defendant need not lead or organize all of the participants. Id. Finally, we
have previously rejected a defendant's contention that others helped him in
furtherance of the conspiracy sua sponte and without coordination where it was clear
that the defendant was the "driving force" behind the crime. United States v. Rodgers,
122 F.3d 1129, 1133–34 (8th Cir. 1997).

       The key factors in this analysis are control and organization. Rowley, 975 F.2d
at 1364. However, the enhancement may apply despite the record being scant on the
degree of control and decision-making authority, for these are merely two factors that
we consider. Gaines, 639 F.3d at 428. In fact, "a defendant's control over another
participant is sufficient but not necessary for a § 3B1.1(b) enhancement." Moreno,
679 F.3d at 1005 (citation omitted).

                                    A. Paul Irlmeier
       Paul contends that "[w]hile the definition of organizer or leader may be broad,
there must also be a point where the action taken [by coconspirators] is so
insignificant that it does not constitute control over the person" such that a defendant
cannot be considered a leader or organizer. However, our review of the record
confirms that Paul qualifies for the U.S.S.G. § 3B1.1 enhancement so as to preclude
safety-valve relief. First, the government presented testimony from Paul's ex-wife,
Traci Irlmeier ("Traci"). Traci explained how Paul directed or ordered her to water
marijuana plants. Traci also watched their children while Paul harvested marijuana;
bought products like Ziploc bags, potting soil, and a food saver machine; watered

                                          -8-
Randy's marijuana plants; and transplanted marijuana plants, all at Paul's request and
in furtherance of the conspiracy. Paul recruited Traci and directed her activities in the
conspiracy. The district court did not err in determining that he was at least a
supervisor of the operation. See U.S.S.G. § 3B1.1 cmt. n.4. One transaction or
occurrence is sufficient to qualify for the enhancement. See Lopez, 431 F.3d at 318.
Paul's conduct toward Traci is sufficient for Paul to qualify for the enhancement.

       In addition, the government also demonstrated that Paul asked Johann Vesper,
one of Paul's farmhands, to transport water to a field so that marijuana plants could
be watered. Paul also directed David Andreasen, one of Paul's customers, to water,
harvest, and process the marijuana crop in exchange for compensation. Paul further
asked for and received the assistance of Chris Hulsing, another farmhand, in cutting
and transporting marijuana. Paul's degree of control therefore exceeds that in Lopez
where the defendant simply asked his roommate to serve as a lookout on one occasion
or in Erhart where the defendant merely recruited people to join the conspiracy. See
Lopez, 431 F.3d at 318; United States v. Erhart, 415 F.3d 965, 973 (8th Cir. 2005).
Based on Paul's recruitment of these four individuals and his directions to them, the
district court did not clearly err in applying the enhancement. Paul was therefore
ineligible for the safety valve.

                                  B. Randy Irlmeier
       In arguing against the enhancement, Randy avers that "the activity of any of the
coconspirators was done voluntarily, without direction, instruction, or influence" such
that the district court should not have applied the aggravating role enhancement.
Randy references an occasion where Randy's girlfriend, Janice Wolfe, and her sister,
Linda Southwell, traveled from their homes in South Carolina to visit Randy at his
Iowa farm. During the visit, Wolfe and Southwell assisted Randy in cutting marijuana
plants on one occasion. Wolfe testified that she cut the plants by voluntarily imitating
Randy, for he never solicited her help in cutting the plants or instructed her how to
cut them. Southwell testified that she did not remember receiving any invitation or

                                          -9-
instructions from Randy regarding the marijuana cutting. One of Randy's customers,
Gene Weitl, also participated in this marijuana-cutting soiree, but he could not
remember receiving any invitation or instructions from Randy. The district court
apparently accepted these testimonies as true, stating:

      This case does present some wrinkles that are different than what the
      court frequently looks at with regard to aggravated role in an offense, in
      terms of relatively small levels of participation, and also because in
      some situations the participation appears to have been voluntary,
      although to the extent that there was direction, particularly with the
      volunteers, the direction was by the volunteers observing what the
      defendants were doing and then copying that and providing some
      participation and some assistance to the process, and because of all of
      those factors, this case does present somewhat differently.

Thus, Randy questions whether the aggravating role enhancement applies where the
coconspirators participated voluntarily and without his direction or instruction.

        We need not answer this question because other facts demonstrate that Randy
qualifies for the aggravating role enhancement. First, Traci testified that Paul watered
Randy's marijuana plants occasionally while Randy was out of town because watering
was part of Paul's "responsibility" to Randy. One can reasonably infer that Paul was
responsible for this activity because of Randy's instruction. Additionally, Weitl
testified that Randy asked him to retrieve a bag of marijuana from another building
and deliver it to Randy, which Weitl did. Weitl also testified that he helped drill holes
in the field for Randy so that Randy could plant marijuana. Randy's actions seem
comparably more supervisory than the defendant in Lopez who merely asked his
roommate to serve as a lookout on one occasion. See 431 F.3d at 318. Although not
overwhelming, the evidence reflecting Randy's supervisory authority is sufficient. See
Gaines, 639 F.3d at 428. Randy's arguments to the contrary reflect "a statement of



                                          -10-
disagreement with the circuit's precedent applying the enhancement in certain factual
scenarios. As a three judge panel, we are similarly bound by circuit precedent." Id.

       Consequently, the district court did not err in determining that Randy qualified
for the enhancement.

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

BRIGHT, Circuit Judge, dissenting.

       I concur with the majority’s decision affirming the sentence of Paul Irlmeier
but I respectfully dissent as to Randy Irlmeier’s sentence.

       The district court erred in imposing an aggravating role enhancement for Randy
Irlmeier because the record lacks evidence that Randy Irlmeier served as an organizer,
leader, manager, or supervisor. See United States Sentencing Guidelines Manual
(U.S.S.G.) § 3B1.1. This court broadly construes the terms “organizer,” “leader,”
“manager,” and “supervisor” under U.S.S.G. § 3B1.1. United States v. De Oliveira,
623 F.3d 593, 599 (8th Cir. 2010). However, simply “[b]eing a part of a conspiracy
does not imply that one is an organizer, leader, manager, or supervisor in the criminal
activity.” United States v. Rowley, 975 F.2d 1357, 1364 (8th Cir. 1992). “The key
determinants of section 3B1.1 are control and organization.” Id. “[W]e have always
required evidence that the defendant directed or procured the aid of underlings.” Id.
at 1364 n.7. Therefore, at the very least, “a defendant must direct or enlist the aid of”
one other person. United States v. Lopez, 431 F.3d 313, 318 (8th Cir. 2005) (citation
omitted) (internal quotation marks omitted); see also United States v. Zimmer, 299
F.3d 710, 724 (8th Cir. 2002) (“A manager or supervisor need only have managed or
supervised one other participant in the criminal conspiracy.”).



                                          -11-
       Here, the evidence showed voluntary actions taken by Randy Irlmeier’s alleged
coconspirators without any significant direction or instruction from Randy Irlmeier.
The absence of any significant direction from Randy Irlmeier distinguishes this case
from Lopez, where the defendant specifically asked his roommate to serve as a
lookout during a drug deal. See Lopez, 431 F.3d at 318. In contrast, the testimony
in this case revealed that Randy Irlmeier did not have to ask for assistance. For
example, Gene Weitl admitted to helping snip and clean marijuana with Randy
Irlmeier on more than one occasion, but he testified that Randy Irlmeier did not direct
him to do so. He simply helped out because he was “just being a friend.” While
Weitl testified that on one occasion, as Weitl got up to leave, Randy Irlmeier asked
him to retrieve a bag containing marijuana from a shed and deliver it to him in the
basement. But, as a practical matter, such a limited request without more does not
transform Randy Irlmeier into an organizer, leader, manager, or supervisor.

       Caselaw regarding the sentencing enhancement as an organizer, leader,
manager, or supervisor under U.S.S.G. § 3B1.1, requires a certain threshold of
direction by the defendant. Randy Irlmeier’s request to Weitl is insufficient to show
the requisite direction needed to apply the enhancement. Therefore, the district court
erred in imposing an aggravating role enhancement for Randy Irlmeier. Without such
an enhancement, he would have been eligible for safety-valve relief from the 60-
month (five-year) mandatory minimum sentence and would have faced a guidelines
range of 46 to 57 months or even a lesser penalty at the district court’s discretion.

       I add an observation. In today’s world where several states in this country have
legalized marijuana use for medical purposes and two states have even legalized its
recreational use, a hard look should apply to marijuana prosecutions carrying
mandatory minimum sentences as in this case. United States Attorney General Eric
H. Holder, Jr. has concluded that a new approach must be taken in federal sentencing
and that we must ensure that our criminal justice system is “[t]argeting the most
serious offenses” and “prosecuting the most dangerous criminals.” Eric Holder,

                                         -12-
Attorney General of the United States, United States Department of Justice, Remarks
at the Annual Meeting of the American Bar Association’s House of Delegates (Aug.
12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-
130812.html; see also United States v. Scott, 732 F.3d 910, 919 (8th Cir. 2013)
(Bright, J., dissenting); United States v. Markert, 732 F.3d 920, 935 n.6 (8th Cir.
2013) (Bright, J., dissenting). Randy Irlmeier’s conduct is not a “most serious”
offense nor is he a “most dangerous” criminal. A five-year mandatory minimum
sentence for his crime is far too long. I would remand to the district court to apply
the safety valve and resentence Randy Irlmeier accordingly.
                        ______________________________




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