U.S. v. Sienkowski, 03-2099.

359 F.3d 463

UNITED STATES of America, Plaintiff-Appellant, v. Thomas E. SIENKOWSKI, Defendant-Appellee.

No. 03-2099.

United States Court of Appeals, Seventh Circuit.

Argued January 7, 2004.

Decided February 20, 2004.

Carol L. Kraft (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellant.

Richard H. Parsons, Johanna M. Christiansen (argued), Office of the Federal

Public Defender, Peoria, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and MANION and EVANS, Circuit Judges.

FLAUM, Circuit Judge.

This appeal involves the government's objection to the district court's refusal to apply a United States Sentencing Guideline § 3B1.1 role enhancement for the defendant Thomas Sienkowski where the parties had agreed to the enhancement. Section 3B1.1(b) provides for a three-level sentencing enhancement where a defendant is a manager or supervisor of criminal activity involving five or more participants. For the reasons stated herein, the sentence imposed by the district court is vacated and the case is remanded for resentencing consistent with this opinion.

I. Background

Sienkowski was a member and officer of the Milwaukee Chapter of the Outlaws Motorcycle Club, an international motorcycle club. The Outlaws consisted of chapters grouped into geographical regions, with each chapter headed by officers, all of whom answered to a single international president. During most of the time period covered in the indictment, Sienkowski was the vice president of the Milwaukee Chapter. In 2000, he became president.

Starting in 1990, members of the midwest Outlaws chapters began to engage in an escalating pattern of violent activity as part of a territorial struggle with their major rival, the Hell's Angels. The violent activities included the placement of car bombs, surveillance on rival club members, and planned murders and armed assaults on rival bikers. In his role as vice president, Sienkowski attended "bosses meetings" where presidents and vice presidents of the various midwest chapters planned and discussed the goals and progress of the war and made plans to carry out assaults on rival bikers.

In 2001, a federal indictment charged Sienkowski, along with five other members of the Outlaws, with racketeering and drug-related offenses. Sienkowski pled guilty to one count of RICO (Racketeer Influenced and Corrupt Organizations) conspiracy in violation of Title 18, United States Code, § 1962(d) — specifically, conspiracy to conduct affairs of the enterprise through a pattern of racketeering which included murder, arson, extortion, and drug trafficking as the result of the criminal activity that comprised the biker war. The government alleged that the defendant Outlaws conspired to engage in seven predicate acts constituting racketeering over the course of the thirteen years charged in the indictment.

The parties agreed to recommend a total offense level of 33, which included a three-level aggravating role increase under U.S.S.G. § 3B1.1(b) and a three-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1. The presentence report ("PSR") calculated the defendant's offense level at 33, including the same upward enhancement and downward adjustment agreed to by the parties. With a criminal history category of II, the PSR calculated Sienkowski's Guideline range as 151-188 months. Although Sienkowski objected to certain factual assertions in the PSR, he did not object to the three-level enhancement.

At sentencing, the district court accepted the base level of 33, and a three-level downward adjustment for acceptance of responsibility, but refused to accept the three-level aggravating role enhancement. The court found that the government had not provided sufficient evidence to support the enhancement. The government objected to the court's ruling and orally proffered additional evidence supporting the enhancement. The government asked the court for a continuance so that witnesses could be brought to testify, but the court declined to grant one. The court sentenced the defendant to 120 months in prison.

The government now appeals the district court's refusal to apply the § 3B1.1 enhancement to Sienkowski's sentence. Alternatively, the government requests that this Court find that the district court abused its discretion by failing to grant the government a continuance to supplement the record.

II. Discussion

Section 3B1.1(b) of the U.S. Sentencing Guidelines states "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved 5 or more participants or was otherwise extensive, increase by 3 levels." A determination that a defendant is not a manager or supervisor of criminal activity involving five or more participants is subject to the clearly erroneous standard of review. United States v. Cantero, 995 F.2d 1407, 1413 (7th Cir.1993). It is the government's burden to establish by a preponderance of the evidence facts that justify applying a sentencing enhancement. Id.

The district court acknowledged that the criminal activity involved the requisite number of participants, but the issue of whether Sienkowski should be considered a manager or supervisor of the criminal activity proved to be more difficult. The government contends that the record contains ample evidence of Sienkowski's supervisory role. Sienkowski admitted to participating in planning the murder of a rival motorcycle club president. Thereafter, and pursuant to the plan, other members of the conspiracy traveled to Minneapolis armed with weapons and explosive devices. Additionally, Sienkowski admitted to, along with other conspirators, "direct[ing] activities of fellow Outlaws from a fortified van containing numerous firearms and other dangerous weapons, in a planned assault on rival gang members." The government also asserts that the PSR establishes that Sienkowski attended a bosses meeting to plan the detonation of a bomb at the clubhouse of a rival gang. At the plea hearing, it was noted that other Outlaw members implemented the bosses' plan by building, placing, and detonating the bomb. Furthermore, the government notes that as chapter vice president, Sienkowski substituted for the president in his absence.

The district court was unconvinced that this evidence, along with the other evidence contained in the record, justified enhancing Sienkowski's sentence under § 3B1.1(b). In its order, the district court reviewed each of the seven individual predicate acts and was unable to determine that the defendant managed or supervised anyone. The court also considered the conspiracy as a whole and reached the same conclusion. It found that there was no evidence that Sienkowski supervised or directed others, recruited others to join the criminal activity, or claimed a larger share of the proceeds. Furthermore, even though Sienkowski was present at the bosses meetings, the district court found that there was no evidence that his level of participation at those meetings warranted an offense level enhancement.

Even when limiting our review to the evidence contained in the record, the decision of the district court gives us pause. However, prompting our decision to remand this case for resentencing is the district court's decision to disregard the additional facts proffered by the government at the sentencing hearing and its refusal to grant the government a continuance to present additional evidence on the issue of role enhancement. Upon learning at the sentencing hearing that the district court intended not to apply the role enhancement, the prosecutor proffered that if called as a witness, Edward Anastas, the Milwaukee chapter president under whom Sienkowski had served as vice president, would testify that Sienkowski directed Outlaw members in a planned confrontation with Hell's Angels at a speedway event in Lancaster, New York. The government also represented that Anastas would testify that Sienkowski supervised armed guard duty at other speedway events. The judge refused to consider this additional evidence on the grounds that it was not contained in the PSR and that he was unconvinced that the government actually possessed such evidence. In his written opinion, the district judge explained that he declined to grant the government's request that sentencing be adjourned so that further evidence could be presented because such action would be futile, as he did not believe that the government possessed the evidence, and that it would be unfair to the defendant, "given the prominence of the sentencing guideline determination in modern federal criminal practice." United States v. Sienkowski, 252 F.Supp.2d 780, 785 (E.D.Wis.2003)

A district court's refusal to grant an evidentiary hearing is reviewed for abuse of discretion. Fed.R.Crim.P. 32(i)(2) (2002); Cantero, 995 F.2d at 1412. While a party has no "right" to a hearing, this Court has held that § 6A1.3 of the Sentencing Guidelines "requires the district court to provide a procedure — but not necessarily an evidentiary hearing — in which the parties may argue contested sentencing issues." Id. at 1413 (citing United States v. Levy, 955 F.2d 1098, 1106 (7th Cir.1992)). While the necessary procedures vary depending on the nature of the dispute,¹ and sentencing courts have discretion to determine which particular procedures are required in a given context; statutory and case law make clear that parties are entitled to notice and an opportunity to be heard regarding disputed sentencing issues. U.S. SENTENCING GUIDELINES MANUAL § 6A1.3, cmt. (2002) (instructing that when a factor is in dispute, "the court must ensure that parties have an adequate opportunity to present relevant information"); United States v. Jackson, 32 F.3d 1101, 1108 (7th Cir.1994) (concluding that "Rule 32 and § 6A1.3 of the Guidelines require both reasonable advance notice, i.e., knowledge, of the ground on which the district court is...