                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 30 2000

                                TENTH CIRCUIT                       PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-5092
 v.                                                (D.C. No. 98-CR-128)
                                                       (N.D. Okla.)
 ERNEST CLIFTON ROWLAND,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Ernest C. Rowland pled guilty to one count of conspiracy to distribute

dilaudid in violation of 21 U.S.C. § 846 and was sentenced to ninety months in

prison. He appeals his sentence, arguing that dilaudid should be treated as both a

depressant and an opiate under the U.S. Sentencing Guidelines (USSG), and that

the district court erred in imposing a four-level enhancement for his role in the

offense pursuant to USSG § 3B1.1. We affirm in part, reverse in part, and

remand for resentencing.



                                          I

      Mr. Rowland first argues that the district court erred in not applying the

equivalency cap contained in the Guidelines’ drug equivalency tables for

Schedule II depressants. It is undisputed, however, that the active ingredient in

dilaudid is hydromorphone,   see United States v. Neighbors   , 23 F.3d 306, 311 n.4

(10th Cir. 1994), and that the drug equivalency tables set forth in USSG § 2D1.1

expressly provide that 1 gram of hydromorphone equals 2.5 kilograms of

marihuana. See USSG § 2D1.1, comment. (n.10).        Under the Guidelines, opiates,

including hydromorphone, are measured by weight, have individual specific

marihuana equivalencies, and are not subject to a quantity cap. See id.

Depressants, on the other hand, are measured by unit rather than by weight, are all

given the same marihuana equivalency, and are subject to a cap. See id.


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(equivalency of Schedule II depressants capped at 59.99 kilograms of

marihuana).

       Despite the fact that the drug equivalency tables specifically address the

treatment of hydromorphone as an opiate, Mr. Rowland embarks on a convoluted

argument to bring the situation here within the rule of lenity. He argues that

although the drug quantity must be calculated using the required equivalency for

hydromorphone, hydromorphone could be classified pharmacologically as both an

opiate and a depressant, and thus the Guideline’s quantity cap for depressants

should also be applied. We disagree.

       The structure of the drug equivalency tables simply do not allow for such a

hybrid treatment. The fact that hydromorphone has some characteristics in

common with depressants has no bearing on its unambiguous treatment in the

equivalency tables as an opiate nor on its unambiguous lack of a quantity

equivalency cap for opiates. The rule of lenity is therefore inapplicable.      See

United States v. Killion , 7 F.3d 927, 935-36 (10th Cir. 1993) (rule of lenity only

applies if there is “grevious ambiguity” in the language of the Guidelines, or if its

application produces an “absurd” or “glaringly injust” result);      United States v.

Flores , No. 96-2333, 1996 WL 599798 (2d Cir. Oct. 21, 1996), at *2 (an opiate

such as hydromorphone is a classification clearly distinguished from depressants).




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                                               II

       Mr. Rowland next argues that the sentencing record does not support a

four-level enhancement under USSG § 3B1.1(a) for his role in the offense as an

organizer or leader. We review this finding for clear error, giving due deference

to the district court’s application of the Guidelines to the facts.     See United States

v. Owens , 70 F.3d 1118, 1127 (10th Cir. 1995). “The government bears the

burden of proving by a preponderance of the evidence the facts necessary to

establish the applicability of this enhancement.”        United States v. Anderson , 189

F.3d 1201, 1211 (10th Cir. 1999). According to the Guidelines, factors a court

should consider in assessing a defendant’s leadership role 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.

USSG § 3B1.1, comment. (n.4).

       The government argued at sentencing that the enhancement was appropriate

on the ground that Mr. Rowland was the wholesaler and the sole source for the

dilaudid sold by others, and that he was therefore an essential figure in the

conspiracy.   1
                  Even if this ground were supported by the evidence, it does not



      The only other ground advanced by the government below was its
       1

argument that because Mr. Rowland was the sole wholesaler, he set the retail

                                              -4-
support the enhancement under our cases.

       We have clearly held that a defendant’s role as a supplier of drugs for

resale by others in the conspiracy, by itself, does not warrant the enhancement.

See, e.g., Anderson , 189 F.3d at 1212; Owens , 70 F.3d at 1129; United States v.

Torres , 53 F.3d 1129, 1143 (10th Cir. 1995). We have also repeatedly held that

the enhancement cannot be based on the fact that a defendant was an essential or

important figure in the criminal conduct.      See, e.g., Owens , 70 F.3d at 1129;

Torres , 53 F.3d at 1143; United States v. Litchfield , 959 F.2d 1514, 1523 (10th

Cir. 1992).

       Moreover, we have held that because “this is indeed a severe enhancement

that deserves an appropriate level of scrutiny from sentencing courts to insure it is

warranted in a particular case,”    Torres , 53 F.3d at 1143 n.14, “[a] district court

must make specific findings and advance a factual basis to support an

enhancement under § 3B1.1,”        United States v. Valdez-Arieta   , 127 F.3d 1267,

1269-70 (10th Cir. 1997) (internal quotation omitted).       See also United States v.

Ivy , 83 F.3d 1266, 1292 (10th Cir. 1996) (citing cases). Here, in holding the

enhancement proper, the sentencing court stated that




prices charged by other members of the conspiracy. The government does not
renew this argument on appeal and we have found no support for it in the
sentencing record.

                                             -5-
       the factors of United States vs. Owens exist here for purposes of the
       four point enhancement. That there is evidence of both organization
       and control, and the fact that on occasion there may have been some
       competition between and among conspirators, I think in no way
       diminishes the paramount role which the Court finds to be as a matter
       of law fully supportive of the four point enhancement.

Transcript of Sentencing Hearing, rec., vol. VI at 15-16.

       This ruling is deficient in several critical respects. Although it makes a

general reference to the relevant factors by citing to   Owens , it lacks any specific

findings on those factors that would support a factual basis for the enhancement.

See Torres , 127 F.3d at 1143. The evidence of organization and control to which

the court referred is not identified, and a reviewing court may not supply those

missing specifics.   See United States v. Pelliere , 57 F.3d 936, 940 (10th Cir.

1995) (quoting United States v. Roberts , 14 F.3d 502, 523 (10th Cir. 1993)).

Finally, the only arguably explicit basis for the court’s decision is its

determination that Mr. Rowland had a “paramount role,” a ground that is clearly

insufficient under our case law.

       We need not remand this case for clarification of the basis for the district

court’s ruling, however, because our review of the sentencing record establishes

that it lacks evidence to support an enhancement under section 3B1.1(a). The

government on appeal does not pursue the enhancement on the basis of Mr.

Rowland’s activity as a wholesaler or his position as an essential figure. Instead,

it offers two items of evidence it contends for the first time support this

                                             -6-
enhancement.

       First, the government refers to the hearsay statement of an unidentified

confidential informant characterizing Mr. Rowland as “the leader.” The

guidelines specifically state, however, that “titles such as ‘kingpin’ or ‘boss’ are

not controlling.” USSG § 3B1.1, comment. (n.4). We thus attach no significance

to this statement, particularly in light of the absence of any evidence in the record

to support it.

       Second, the government relies on a statement by a coconspirator that Mr.

Rowland approached him to sell dilaudid while another coconspirator was in

prison. The government argues that this “recruitment” establishes Mr. Rowland’s

role as a leader or organizer. We disagree. “The gravamen of the enhancement is

either the exercise of control over other participants or the organization of others

for the purpose of carrying out the crime.”         United States v. Tagore , 158 F.3d

1124, 1131 (10th Cir. 1998). Thus, while recruiting others is indeed a factor for

the court to consider in assessing the applicability of this enhancement,       see, e.g.,

United States v. Smith , 131 F.3d 1392, 1398 (10th Cir. 1997), the significance of

this factor rests on its tendency to show that a defendant controlled others or

organized illegal activity.   See id. (defendant recruited accomplices, and directed

them to go out and sell contraband and to purchase necessary chemicals with

money defendant supplied);     United States v. Johnson , 911 F.2d 403, 407 (10th


                                              -7-
Cir. 1990) (defendant planned and executed theft, recruited accomplice to fence

stolen goods, and exercised control over those goods). Here, however, the record

contains no evidence that the recruitment was part of a pattern of leadership or

organization. The government offered no evidence that the other coconspirators

worked for Mr. Rowland or at his direction, that they were paid by him for their

efforts, that he organized or controlled their retail sales, or that he claimed a right

to a share of their retail profits. Absent some evidence that Mr. Rowland directed

or controlled the activity of this recruit or anyone else, or that he organized the

criminal activity in which the recruit participated, the bare act of recruitment of

one person simply does not establish Mr. Rowland’s role in the offense as a

leader or organizer in this extended narcotics conspiracy.

      Accordingly, we conclude that the district court erred in enhancing Mr.

Rowland’s sentence under section 3B1.1(a) for his role in the offense. We

REVERSE the sentence and REMAND for resentencing.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge




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