                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-2704
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa.
David A. Gelinas,                         *
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: May 15, 2002

                                    Filed: August 20, 2002
                                     ___________

Before MURPHY, HEANEY and BRIGHT, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

      David Gelinas was convicted by a jury of conspiracy to distribute 1000 grams
or more of a mixture or substance containing methamphetamine, in violation of 21
U.S.C. § 846, and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h).
The district court1 sentenced him to concurrent sentences of 240 months on both
counts. He appeals his sentence and asks us to consider whether the district court


      1
       The Honorable Michael J. Melloy, formerly United States District Judge for
the Northern District of Iowa, now United States Circuit Judge for the Eighth Circuit.
erred in finding that he should receive a three-level enhancement for being a manager
or supervisor of a criminal activity involving five or more people, pursuant to
U.S.S.G. § 3B1.1(b). We affirm the district court’s application of the enhancement.

       Additionally, the appellant filed a supplemental brief pro se, and raised the
following issues: 1) whether the sentence imposed violated the principles set forth in
Apprendi v. New Jersey, 530 U.S. 466 (2000); 2) whether his convictions for
conspiracy to distribute methamphetamine and conspiracy to commit money
laundering constitute double jeopardy; 3) whether the court improperly instructed the
jury as to the elements of money laundering; and 4) whether there was insufficient
evidence to convict him of the charged offenses. After careful review of his brief and
the government’s response, we find those issues to be without merit.

       Gelinas was involved in a conspiracy to distribute methamphetamine and
engage in money laundering between 1995 and 1998. The uncontested evidence
shows there were at least eight others involved in the conspiracy. Appellant arranged
the flow of methamphetamine from California to Iowa; recruited and utilized others
to wire money from Iowa to California to pay for the methamphetamine; recruited and
utilized others to supply, transport, and ship the drugs; recruited and utilized others
to pick up the money that had been wired to California; and gave others instructions
to avoid detection. Gelinas acted as a conduit for the drugs and money passing
between members of the conspiracy in California and Iowa.

       Appellant contests the court’s imposition of a three-level enhancement for a
supervisory or managerial role. He argues there was insufficient evidence to support
the district court’s factual finding regarding his supervisory role in the conspiracy,
and seeks a remand for resentencing. This court reviews the district court’s
determination of Gelinas’s role in the offense as a factual matter, and applies a clearly
erroneous standard of review. United States v. Cooper, 168 F.3d 336, 339 (8th Cir.
1999) (citing United States v. Brown, 156 F.3d 813, 817 (8th Cir. 1998)); United

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States v. McFarlane, 64 F.3d 1235, 1236 (8th Cir. 1995). The interpretation and
applicability of the Guidelines is a question of law that is reviewed de novo.
McFarlane, 64 F.3d at 1236.

       Section 3B1.1 of the guidelines states in relevant part, “[b]ased on the
defendant’s role in the offense, increase the offense level as follows: . . . . (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 three levels.” Gelinas’s role in the conspiracy was not limited to his
recruiting efforts. He solicited others to assist in financing the sale and distribution
of the drugs; explained to transporters how to carry the methamphetamine on their
bodies; asked others to buy hand cleaner for him to use in packing the
methamphetamine for shipment; encouraged co-conspirators to use false names and
addresses when wiring money; and asked others to obtain ingredients to make
methamphetamine. Because Gelinas has not shown that the enhancement for his
supervisory or managerial role in the offense was clearly erroneous, the judgment of
the district court is affirmed.

BRIGHT, Circuit Judge, concurring.

       I have written many times about the unfair, overlong prison sentences meted
out under the Sentencing Guidelines. See e.g., United States v. Baker, 961 F.2d 1390,
1393 (8th Cir. 1992) (Bright, J., concurring) (“This case is another example of rigid
guidelines producing inequity and injustice in sentencing, and demonstrates a need
for reformation, if not the abolishment, of Guideline sentencing.”); United States v.
England, 966 F.2d 403, 410-11 (8th Cir. 1992) (Bright, J., concurring) (noting and
estimating the costs, in both human suffering and wasted tax dollars, of the lengthy
prison terms required under the guidelines); United States v. Stockton, 968 F.2d 715,
721 (8th Cir. 1992) (Bright, J., concurring) (“[T]his sort of massively heavy
punishment cannot be justified in a civilized society, unless there is a showing that

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lengthy incarcerations protect society from incorrigible and continuing criminals. No
such showing has been made in this case.”).

        Here we have another example of an application of the Sentencing Guidelines
resulting in an exceedingly lengthy sentence for a relatively minor player in a drug
conspiracy. See United States v. Griffin, 17 F.3d 269, 274 (8th Cir. 1994) ("What
kind of a criminal justice system rewards the drug kingpin or near-kingpin who
informs on all the criminal colleagues he or she has recruited, but sends to prison for
years and years the least knowledgeable or culpable conspirator, one who knows very
little about the conspiracy and is without information for the prosecutors?").

       David Gelinas received a three-level adjustment under U.S.S.G. § 3B1.1(b)
because he was a “manager or supervisor” of a criminal conspiracy to distribute 1000
grams or more of methamphetamine. At sentencing, the district court determined that
Gelinas has a category II criminal history, and the offense level was 37, resulting in
a sentencing range of 235-293 months. The court imposed a sentence of 240 months.
Without the three-level increase, Gelinas’ possible sentencing range would have been
168 to 210 months.

      Even though the district court acknowledged at sentencing that Gelinas’ “role
is somewhat limited,” the court still found that the government presented enough
evidence to warrant the § 3B1.1(b) adjustment. The end result is that a forty-seven-
year-old man has been sentenced to twenty years imprisonment while others facing
the same charges received considerably lesser sentences. The government indicted
Gelinas with two other men, both of whom pleaded guilty; one received a ninety-
seven-month sentence and the other received a seventy-eight-month sentence.

       There is something wrong when this type of inequity becomes a common part
of our criminal justice system. See United States v. Griffin, 17 F.3d 269, 273-75 (8th
Cir. 1994) (Bright, J., dissenting) (discussing the myth of consistency in sentences

                                         -4-
and lengthy sentences meted out to people with no criminal history points or those
who commit nonviolent crimes). Again, I reiterate my call for abolishing or radically
changing the Sentencing Guidelines and adopting a more fair and just system. See
e.g., United States v. England, 966 F.2d 403, 411 (8th Cir. 1992) (Bright, J.,
concurring) (“In too many instances, the sentences directed by the guidelines waste
the lives of men and women. . . . It is time for a re-evaluation and change.”)
(emphasis in original); see also United States v. Chavez, 230 F.3d 1089, 1093 (8th
Cir. 2000) (Bright, J., concurring) (“‘Is anyone out there listening?’ If not, isn’t it
about time?”).

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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