                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-3531

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

JOSE G. R OSALES,
                                           Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 11-CR-244-1-JPS—J.P. Stadtmueller, Judge.



        A RGUED M AY 1, 2013—D ECIDED M AY 22, 2013




  Before B AUER, P OSNER, and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. Section 3B1.1(a) of the U.S. Sen-
tencing Guidelines increases by four levels the guide-
lines range for a defendant who is found to be an
organizer or leader of criminal activity in which there
were at least five participants. (If he is found just to be
a manager or supervisor, the increase is only three lev-
els. See section 3B1.1(b).) The defendant was a mem-
ber of a six-man gang of thieves that stole trucks
2                                              No. 12-3531

from truck yards and sold the cargoes to fences. The
question presented by the appeal is whether he was
the leader or organizer of the gang. The district court
ruled that he was and so increased his base offense level
by the four levels, which raised his guidelines range
from 41 to 51 months to 63 to 78 months for conspiring
to transport, and transporting, stolen motor vehicles and
goods in interstate commerce. 18 U.S.C. §§ 371, 2312,
2314. The judge imposed a below-guidelines sentence
of 58 months.
   Application Note 4 to section 3B1.1 states that “in
distinguishing a leadership and organizational role
from one of mere management or supervision . . . the
court should consider” factors that “include [and thus
are not necessarily exhausted by] the exercise of deci-
sion making authority, the nature of participation
in the commission of the offense, the recruitment of ac-
complices, 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.” As with most
multifactor tests, the application note’s seven-factor test
is none too clear. No weighting of the factors is indi-
cated (so really the “multifactor test” should be called
a “list of factors”). And a majority of the factors are
vague or redundant. That is true of “the nature of [the
defendant’s] participation in the commission of the of-
fense,” “the degree of participation in planning or or-
ganizing the offense,” “the nature and scope of the
illegal activity,” and even “the degree of control and
No. 12-3531                                              3

authority exercised over others.” For what is the dif-
ference between “control” and “authority”? And for
that matter is there a difference between a “leader” and
an “organizer”? The phrase “a leadership and organiza-
tional role” appears to fuse them.
  Years ago a footnote in United States v. Mustread, 42
F.3d 1097, 1104 n. 3 (7th Cir. 1994), pointed out that
the seven-factor test “contributes to the murk sur-
rounding review of § 3B1.1 adjustments. For example,
‘the nature of participation in the commission of the
offense,’ is distractingly vague, at best. In essence, it
begs the question, because the ultimate inquiry is
‘the nature of participation.’ ” The court did add (out
of politeness to the Sentencing Commission?) that
“taken together, however, the seven factors can pro-
vide valuable guidance”—but it gave no illustration
and immediately added “that slavish adherence to them
is unnecessary: the ultimate question is what relative
role the defendant played.” Slavish adherence, found
in many opinions dealing with section 3B1.1, produces
meandering, inconclusive opinions.
   Still further uncertainty is injected by the reference
to leader or organizer, and to the provision distin-
guishing both from a manager or supervisor (what’s
the difference?), who receives only a three-level enhance-
ment. We noted in United States v. Figueroa, 682 F.3d
694, 695 (7th Cir. 2012), the oddity “that the same factors
should be thought to identify a leader and a supervi-
sor—the CEO of a supermarket chain, who is certainly a
‘leader,’ but in addition to him the head of the produce
4                                              No. 12-3531

department at one of the chain’s supermarkets, who
is merely a ‘supervisor.’ A low-level supervisor does
not ‘exercise . . . decision making authority,’ though
virtually any employee has to make some decisions
(for example, whom to wait on first, if he is a store
clerk). The low-level supervisor has no claim to a share
in the ‘fruits’ of the enterprise and probably no hiring
authority (’recruitment’) either. And he does little
in the way of ‘planning’ or ‘organizing.’ ”
  The apparent equation of “organizer” to “leader” is
another oddity. The “organizer” of an entire enterprise
would usually be thought the person who had started it;
he might not be running it; he might not be a leader.
A “manager” or “supervisor” might be the enterprise’s
leader.
  All this is terribly confused, and could use further
attention from the Sentencing Commission. It might
make more sense just to ask whether the defendant was
the boss of the criminal enterprise (4-level enhancement)
or the boss of a subdivision of it (3 levels) than to
trudge through the seven factors (and maybe others,
since the seven factors are not exhaustive). Our de-
fendant likes the seven-factor test, however; he pounces
on one of the clearer factors in it—“the claimed right
to a larger share of the fruits of the crime.” For the pro-
ceeds of the thefts were split equally among the
gang’s members. But it is not all that unusual for a boss
to be paid no more than, and even less than, a subordi-
nate. A star salesman may be paid more than the sales
manager to whom he reports. A hospital’s star surgeons
No. 12-3531                                           5

often are paid more than the hospital’s administrator,
and the head coach of a college athletic team often
is paid more than the athletic director to whom
he reports. In a small firm, or a small gang, the
profits may be split evenly because if one member
were paid more than the others there mightn’t be
enough left over to induce them to remain, or because
a subordinate might have specialized skills that were
scarcer than the boss’s skills.
  Two of the members of the gang in this case were
mechanics who could break into trucks and hot-wire
them so they could be driven even though the drivers
would not have the ignition key or remote. These were
skills the defendant lacked. Two other gang members
drove the trucks to the lots at which the cargoes were
sold to the fences. The drivers were at greater risk of
arrest than the defendant—they were driving stolen
trucks containing stolen cargoes.
  The defendant and his brother, the remaining
members of the gang, had the contacts with the fences
and arranged the transactions with them. The question
is whether the defendant was also the gang’s boss.
He could have been, yet also have been constrained to
split the profits evenly six ways; maybe otherwise
he couldn’t have roped in the mechanics, with their
specialized skills, and the drivers, with their higher
risk of arrest. So despite the even split of profits, to
which his lawyer devotes much of her argument, the
defendant may have been the boss. It would help if the
record revealed whether he had started the criminal
enterprise, but it does not.
6                                               No. 12-3531

   The judge decided that the defendant was indeed the
boss, because he had “brought all of this together, whether
it’s finding drivers, whether it’s steering the co-conspira-
tors to particular terminal yards, to particular types
of products, and then your finding suitable fences
whether here or over in Michigan, or elsewhere, to
take these goods, that’s what your role in all of this is
more than amply demonstrated to have been.” The de-
fendant responds that really all this just followed
from his being the contact person with the fences (his
brother’s role was similar but apparently quite minor);
that he just conveyed to the other gang members the
fences’ “orders” (what kind of cargoes they wanted) and
where the fences wanted the stolen cargoes delivered.
  But his role as contact person made him the gang’s
leader, or so the judge could find. The defendant used
his information about what the fences wanted to find
unguarded truck yards containing trucks likely to
contain cargoes that the fences would buy, to direct
the other members to those truck yards, and to tell
them (after consultation with the fences) which trucks
in the yards to steal and where to deliver the cargoes to
the fences. The fences paid him for the cargoes and he
split the money among the gang’s members (including
himself). So he was the paymaster. He brought his
brother and one other person (a driver) into the gang,
so was a recruiter, and he searched out warehouse
space in which to store stolen merchandise to await
directions from the fences. Without him or someone in
his position the gang would have fallen apart. The
No. 12-3531                                         7

gang needed a leader in order to function, and he was
the leader.
                                           A FFIRMED.




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