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7th Takes a Stab at Defining Leadership, Jab at Sentencing Comm'n

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By William Peacock, Esq. on May 23, 2013 4:50 PM

Martin Luther King Jr. defined a genuine leader as "not a searcher for consensus but a molder of consensus."

The United States Sentencing Commission (USSC) addresses the subject of leadership and organizational roles in USSG §3B1.1 by stating:

"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 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."

If the latter definition makes you nauseated, you aren't alone.

Judge Posner spends much of United States v. Rosales needling the USSC for not remedying the unclear definition, as the murky seven-factor "test" -- the elements of which are neither individually dispositive nor collectively exhaustive -- leads to long meandering opinions attempting to apply the factors. (Or here, bemoaning them.)

In this case, Jose Rosales was the point of contact for fences, who would place orders and set delivery terms for stolen cargo. Rosales and his co-conspirators would then hotwire and hijack parked trucks filled with that cargo and pass it along.

Under the guidelines, we'd have to consider the seven factors and how they relate to Rosales. But Posner don't play that:

"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 offense,' 'the degree of participation in planning or organizing the offense,' 'the nature and scope of the illegal activity,' and even 'the degree of control and authority exercised over others.' For what is the difference between 'control' and 'authority'? And for that matter is there a difference between a 'leader' and an 'organizer'? The phrase 'a leadership and organizational role' appears to fuse them."

Posner also notes that the court has already addressed the unsatisfactory nature of this test, and the "leadership" enhancement guidelines in general, way back in 1994, in an overly-polite footnote.

Rosales argues in favor of the five factors, as he can then argue that he didn't receive a majority of the "fruits" of the fencing operation. Posner cites college coaches out-earning athletic directors and surgeons out-earning administrators as examples of how leaders often make less than subordinates.

In the end, Posner et al. affirmed the lower court's reasoning, which put the crown on Rosales' head. He coordinated drivers, found the retail outlets, took orders, found unguarded truck yards, and handled the accounting duties.

In MLK's words, he was a "molder of consensus." USSC be damned.

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