The opinion of the court was delivered by: Lynn Adelman District Judge
Defendant Thomas Sienkowski pleaded guilty to a racketeering conspiracy arising out of his involvement with the Outlaws Motorcycle Club, and I sentenced him to 120 months in prison. The government appealed my decision not to impose an enhancement under U.S.S.G. § 3B1.1(b) for aggravating role in the offense, and the court of appeals remanded to allow the government to submit evidence in support of its position.
The government submitted an evidentiary proffer, then called former Outlaws Ronald Talmadge and Edward Anastas, who testified as to defendant's role in the conspiracy. Although Talmadge offered little relevant to the enhancement, Anastas's testimony, which I found credible, was sufficient to establish that defendant organized and directed others.*fn1
The parties agreed to re-sentencing defendant based on the evidence of record without holding a new sentencing hearing, and defendant waived his further appearance in court. As the government concedes, based on the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005), neither the role enhancement nor any other guideline factor are binding. Nevertheless, in light of the factors I must consider under 18 U.S.C. § 3553(a), including the advisory guideline range, I conclude that some increase in defendant's sentence is warranted based on the applicability of the aggravated role enhancement.
In this memorandum, I explain my ruling on the enhancement, then set forth the reasons for the new sentence I impose.
Defendant joined the Milwaukee chapter of the Outlaws, becoming vice president in about 1992 and president in 2000, when then-president Anastas became a regional leader. During much of this time, the Outlaws were involved in a territorial war with other motorcycle clubs, including the Hell's Angels and their affiliates. The racketeering conspiracy with which defendant (and various other Outlaws) were charged arose out of this conflict.
The indictment alleged seven predicate acts. The first was a November 1993 attempt to murder Patrick Matter, president of the Hell's Angels chapter in Minneapolis. A team of Outlaws, consisting of Scott Hammond from the Milwaukee chapter and James Schneider and Randall Miller of the Janesville chapter, traveled to Minneapolis, surveilled Matter, but failed to get a shot at him and returned to Wisconsin. Anastas testified that defendant approached him about the plan and said that there was a crew of guys who wanted to go to Minnesota to look for Hell's Angels. Defendant asked Anastas for surveillance photos and a weapon. Anastas obtained the materials, and he and defendant then met with Schneider, Miller and Anastas, and provided them with the materials.*fn2
The second predicate act arose out of a December 1993 plot to place a bomb under Matter's truck. The bomb was assembled at defendant's house, but he took his family away while others worked and was not involved in its construction. The bomb was placed under Matter's truck on December 15, 1993, and Miller accidentally detonated it early, destroying the truck but injuring only himself.
The third act arose out of a June 14, 1994 attempt to kill members of the Hell's Henchmen during their motorcycle run through Rockford, Illinois. O'Neill gathered several Outlaws, including defendant, at a hotel in Rockford and instructed them to shoot a rider in the front, which would cause a "domino effect" knocking down the others. Defendant and Hammond went armed with an AK-47 assault rifle but never got a shot because of civilian traffic. O'Neill then directed the Outlaws to a bar where he though the Henchmen would go, but they never showed up and the Outlaws dispersed.
The fourth act arose out of an Outlaw attempt to confront the Invaders, an affiliated club of the Hell's Angels, at the Illiana Speedway on June 26, 1994. The Outlaws brought a fortified van to the speedway containing weapons, which was supervised by Hammond and defendant. But the Invaders never showed, and the Outlaws went home.
The fifth act arose out of the bombing of the Hell's Henchmen clubhouse on Grand Avenue in Chicago. Outlaws national president Harry Bowman approved the plan to bomb the clubhouse, and at a regional meeting Anastas was asked to have the Milwaukee chapter take responsibility for the bomb's construction. Defendant purchased explosives with club money, then brought them to an apartment where Anastas and Milwaukee Outlaw Al Venus constructed the bomb. They then took the bomb to defendant's house and built a metal box for it. Hammond took the front seat out of a car to accommodate the bomb. Defendant was present at a later regional bosses' meeting where placing the bomb was discussed. On November 7, 1994, a Chicago Outlaw named Raymond Morgan drove the car containing the bomb onto the sidewalk near the clubhouse, where it exploded, causing considerable damage but no injuries.
The sixth predicate act arose out of a June 1996 plan to confront Hell's Angels at the Morocco Speedway in Indiana, and Anastas testified that he put Hammond and defendant in charge of security.*fn3 Anastas testified that security was a shared responsibility between the two, and it involved organizing a schedule for various Outlaws to stand armed guard duty. Apparently, no confrontation occurred.
The final predicate act involved defendant's sale of marijuana (and small amounts of cocaine), primarily to other Outlaws.
Defendant pleaded guilty, and the probation office prepared a pre-sentence report ("PSR"), which calculated his offense level ("OL") as 33 (base OL 28 for predicate acts 1-6, U.S.S.G. § 2A1.5(a), base OL 24 for act 7, § 2D1.1(c)(8), combined OL 33 under § 3D1.4, plus 3 for role in the offense, § 3B1.1, and minus 3 for acceptance of responsibility, § 3E1.1), and his criminal history category as II, for an imprisonment range of 151-188 months. I declined to impose the § 3B1.1 enhancement, noting that there was no evidence that defendant directed others in any of the predicate acts. I further noted that:
Even considering the conspiracy as a whole, I could not conclude that the enhancement was proper . . . . There was no evidence that defendant supervised or directed others in the "war" with rival motorcycle gangs. Defendant's participation in many of the specific acts was peripheral. He never detonated a bomb or fired a shot. There was no evidence that he recruited others to join the Outlaws, or that he claimed a larger share of the proceeds of the conspiracy's unlawful conduct. Finally, even if he was present at "bosses" meetings, there was no evidence that his level of participation at those meetings warranted an offense level enhancement. United States v. Sienkowski, 252 F. Supp. 2d 780, 783-85 (E.D. Wis. 2003), vacated, 359 F.3d 463 (7th Cir. 2004). As noted, the Seventh Circuit remanded for presentation of additional evidence.
In light of Booker, I typically follow a three-step sentencing process. First, I determine the applicable advisory guideline range, resolving any factual disputes. Second, I determine whether, pursuant to the Sentencing Commission's policy statements, any departures from the advisory guideline range clearly apply. Finally, I determine the appropriate sentence in light of the factors set forth in 18 U.S.C. § 3553(a). See, e.g., United States v. Pallowick, 364 F. Supp. 2d 923, 925-26 (E.D. Wis. 2005).
The only guideline issue is whether defendant should receive an enhancement for role in the offense under U.S.S.G. § 3B1.1.
Based on the defendant's role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(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 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or
(b), increase by 2 levels. "To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants." U.S.S.G. § 3B1.1 cmt. n.2. The guideline: provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense. This adjustment is included primarily because of concerns about relative responsibility. However, it is also likely that persons who exercise a supervisory or managerial role in the commission of an offense tend to profit more from it and present a greater danger to the public and/or are more likely ...