Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-2003

USA v. Kittoe
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3556




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. Kittoe" (2003). 2003 Decisions. Paper 250.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/250


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 02-3556


           UNITED STATES OF AMERICA;

                            v.

                   ALBERT KITTOE,
                     a/k/a "Kwesi"

                      ALBERT KITTOE,
                               Appellant


APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE DISTRICT OF NEW JERSEY
                D.C. Crim. No. 99-cr-00704
    District Judge: The Honorable Mary Little Cooper


       Submitted Under Third Circuit LAR 34.1(a)
                  September 11, 2003


   Before: ALITO, BARRY, and AM BRO, Circuit Judges


        (Opinion Filed:    September 26, 2003    )


                          OPINION
BARRY, Circuit Judge

       Appellant Albert Kittoe was charged in a ten-count superceding indictment with

various crimes relating to his role in a conspiracy to import and export cocaine. On

December 19, 2001, Kittoe pled guilty to Count One of the superceding indictment,

charging conspiracy to distribute and to possess with intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846. During the Rule 11

proceeding, Kittoe expressly admitted that, in furtherance of the conspiracy, he had

purchased kilogram quantities of cocaine, packaged the cocaine in bed sheets for export,

recruited couriers to deliver the cocaine to distributors in London, received money that

the couriers brought back from the London distributors, and paid the couriers a fee for

their services.

       Sentencing took place on August 29, 2002. The presentence report (PSR)

recommended a two-level enhancement in Kittoe’s offense level for his role as a

“manager or supervisor” in the conspiracy, pursuant to section 3B1.1(c) of the Sentencing

Guidelines.1 In support of this recommendation, the PSR detailed extensive facts

concerning Kittoe’s recruitment and direction of the couriers transporting cocaine to

Europe. Although Kittoe filed no written objections to the PSR, Kittoe’s counsel argued




   1
    Section 3B1.1(c) of the Sentencing Guidelines provides for a two-level sentencing
enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any
criminal activity” that did not involve “five or more participants or was otherwise
extensive.”

                                             2
at sentencing that the two level adjustment was not warranted because other co-

conspirators had played greater leadership roles in the conspiracy, and Kittoe had been

under the direction of these other co-conspirators.

       After considering counsel’s argument, the District Court, relying on the facts of the

conspiracy as set forth in the PSR, found that Kittoe had acted as a manager or supervisor

for purposes of the section 3B1.1(c) enhancement based on his conduct in purchasing

cocaine, preparing it for export, recruiting couriers, providing the couriers with airplane

tickets and travel funds, arranging for the couriers to meet European distributors, and

arranging for the couriers to return to the United States with the proceeds of the cocaine

sales. After applying the two-level enhancement and a three-level reduction for

acceptance of responsibility, the Court found that Kittoe’s total offense level was 33,

which, considering his criminal history category of I, resulted in a sentencing range of

135 to 168 months. The District Court sentenced Kittoe to 144 months imprisonment,

five years of supervised release, a $1,000 fine, and a $100 special assessment.

       Kittoe argues that the District Court erred in finding that he was a manager or

supervisor for the purposes of the two-level enhancement under section 3B1.1(c) of the

Guidelines. He contends, more specifically, that the District Court failed to properly

consider the factors listed in the commentary to section 3B1.1 in making its

determination. We review the District Court’s findings of fact supporting a sentencing

enhancement for clear error, but apply plenary review to its interpretation of the



                                             3
Sentencing Guidelines. United States v. Bethancourt, 

, 1080 (3d Cir. 1995).

We will find the District Court’s factual findings clearly erroneous only if “we are ‘left

with the definite and firm conviction that a mistake has been committed.’” United States

v. Bass, 

, 128 (3d Cir. 1995) (quoting United States v. United States Gypsum

Co., 

, 395 (1948)). 2

       Upon review of the record, we discern no error in the District Court’s

interpretation and application of section 3B1.1(c). In determining that Kittoe was a

manager or supervisor, the District Court, contrary to Kittoe’s allegations, expressly

considered the relevant factors set forth in the commentary to section 3B1.1:

             the exercise of decision making authority, the nature and
             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 the planning or organizing of
             the offense, the nature and scope of the illegal activity, and the
             degree of control or authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4. Although the District Court recognized that not all of the

factors were present in Kittoe’s case, it concluded that most of them were, justifying the

enhancement. This conclusion comports with our precedent. See 

(“Evidence of every factor is not a prerequisite to a finding that the defendant is a leader

or organizer under § 3B1.1 . . . .”).

       Kittoe’s argument that he was not a manager or supervisor simply because he was



   2
    We have jurisdiction over Kittoe’s appeal pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742.

                                              4
not the primary leader or organizer of the conspiracy misconstrues what is required. A

defendant need not be the primary leader of the conspiracy for the enhancement to apply.

Rather, “the enhancement is only appropriate if the defendant directed and controlled at

least one individual.” United States v. 

.

       With the appropriate legal standard in mind, we conclude that the District Court’s

factual finding that Kittoe indeed played a managerial or supervisory role in the

conspiracy was not clearly erroneous. Rule 32(i)(3)(A) of the Federal Rules of Criminal

Procedure provides that in imposing sentence, a District Court “may accept any

undisputed portion of the presentence report as a finding of fact.” See also United States

v. Watkins, 

, 166-67 (3d Cir. 1995) (“It is well established . . . that a

sentencing court may rely on the facts set forth in the presentence report when their

accuracy is not challenged by the defendant.”). Because Kittoe did not file objections to

the PSR, the District Court was entitled to rely on its extensive descriptions of his

supervision of the co-conspirator couriers. Moreover, Kittoe expressly admitted at his

plea hearing that he had purchased cocaine, packaged it for export, recruited couriers to

deliver it, and paid the couriers for their services. These admissions, combined with the

uncontested facts contained in the PSR, are sufficient to support the District Court’s

factual determination.

       We will affirm the judgment of sentence.




                                              5
6
TO THE CLERK OF THE COURT:

    Kindly file the foregoing Opinion.




                                             _________________________________
                                             Circuit Judge




                                         7