United States of America v. Jesse James Vandeberg

*The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0022P (6th Cir.)
File Name: 00a0022p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J ESSE J AMES VANDEBERG ,
Defendant-Appellant.
;>

1
No. 98-3009
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 97-00046—S. Arthur Spiegel, District Judge.
Argued: September 22, 1999
Decided and Filed: January 14, 2000
Before: MERRITT and CLAY, Circuit Judges;
ALDRICH,* District Judge.

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2 United States v. Vandeberg No. 98-3009
_________________
COUNSEL
ARGUED: C. Ransom Hudson, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT
OF OHIO, Cincinnati, Ohio, for Appellant. Anne L. Porter,
OFFICE OF THE U.S. ATTORNEY, Cincinnati, Ohio, for
Appellee. ON BRIEF: C. Ransom Hudson, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, SOUTHERN
DISTRICT OF OHIO, Cincinnati, Ohio, for Appellant. Anne
L. Porter, OFFICE OF THE U.S. ATTORNEY, Cincinnati,
Ohio, for Appellee.
_________________
OPINION
_________________
ALDRICH, District Judge. Defendant-Appellant Jesse
James Vandeberg pled guilty to conspiracy to transport stolen
property interstate, a violation of 18 U.S.C. § 371, and to
interstate transportation of stolen property, a violation of 18
U.S.C. § 2314. Vandeberg appeals his sentence, arguing that
the District Court erred by (1) applying a two-level
enhancement to his base offense level pursuant to United
States Sentencing Guideline § 3B1.1(c), and (2) failing to
conduct a restitution hearing within 90 days of his sentencing
date. For the reasons that follow, we conclude that the
District Court’s faulty restitution procedures amounted to
harmless error, but that the decision to enhance Vandeberg’s
offense level was both erroneous and potentially harmful to
his sentence. Accordingly, we REVERSE the District Court’s
decision to apply the § 3B1.1(c) enhancement and REMAND
for resentencing.
I.
In early March of 1997, Joseph Tillema, one of
Vandeberg’s acquaintances, drove a pickup truck from Fort
Myers, Florida to Cincinnati, Ohio in order to burglarize the
No. 98-3009 United States v. Vandeberg 15
restitution order 60 days after the discovery of any additional
losses. See 18 U.S.C. § 3664(d)(5). The MVRA permits
amendments to restitution orders to reflect changed
circumstances, and neither confers nor terminates a court’s
jurisdiction.
The only remaining issue is whether the District Court
abused its discretion in setting the amount of restitution at
$100,000. We conclude that it did not. The government,
which had the burden to prove the amount of the victim’s loss
by a preponderance of the evidence, see 18 U.S.C. § 3664(e),
produced evidence from the victim’s insurance company
demonstrating that the victim suffered over $165,000 in
damages. At the restitution hearing, the probation officer
testified to the propriety of that amount in light of the
numerous stolen items that had not even been recovered. In
turn, Vandeberg testified that the information his employer
had given to the insurance company was not entirely accurate.
It appears that the District Court took all of this evidence into
account when exercising its discretion to establish the
restitution amount. We cannot say that imposing $100,000 in
restitution constituted an abuse of discretion.
IV.
We conclude that although the District Court failed to give
Vandeberg an opportunity to object to a restitution order
within 90 days after his sentencing hearing pursuant to 18
U.S.C. § 3664(d)(5), the error was harmless. We further
conclude that the District Court’s error in applying a two-
level enhancement to Vandeberg’s sentence pursuant to
U.S.S.G. § 3B1.1(c) may not have been harmless;
accordingly, we remand the case for further consideration of
the length of the sentence of imprisonment.

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14 United States v. Vandeberg No. 98-3009
6As discussed previously, this does not mean that a sentencing court
is obligated to conduct an evidentiary hearing on the issue. While the
merits of a hearing are readily apparent, the court may, for example,
permit the parties to brief the amount of losses. See 18 U.S.C. § 3664
(conferring power on sentencing court to select method for assessing
restitution amount).
hearing. The court should have clarified on the day of the
hearing that it was deferring a final determination on the
restitution issue for a particular period of time. Rather than
deferring the issue as § 3664(d)(5) requires, the District Court
ordered restitution in the amount of $13,162.89. The court
evidently intended to keep the matter of restitution open for
an additional 90 days, because approximately one week prior
to the end of the 90-day statutory period, the District Court
increased the amount of restitution to $165,428.41 based on
additional information that the probation officer had
submitted. See Grimes, 173 F.3d at 640 (district court erred
by finalizing restitution order on sentencing date when some
losses had not yet been ascertained). However, the District
Court erred by unilaterally amending and finalizing the
restitution order without affording the parties an opportunity
to object within the 90-day period. Restitution is a part of
one’s sentence under the statutory scheme, and cannot be
imposed without giving the defendant an opportunity to be
heard.6 See Fed. R. Crim. P. 32(c)(3).
Nonetheless, we conclude that the error was harmless.
Although the District Court did not provide Vandeberg an
opportunity to be heard within 90 days of the sentencing
hearing, the court provided him ample opportunity to object
to the amount thereafter. The court scheduled a number of
conferences on the subject, and, ultimately, conducted an
evidentiary hearing in which Vandeberg himself testified.
Vandeberg’s argument that the court lacked jurisdiction to
take these actions after the 90-day period misses the mark.
Section 3664(d)(5) is not a jurisdictional statute. Were we to
read it as terminating a court’s jurisdiction 90 days after a
sentencing hearing, we would be effectively nullifying its
provision that a victim may petition the court for an amended
No. 98-3009 United States v. Vandeberg 3
house of Vandeberg’s employer. Vandeberg had informed
Tillema that his employer, a licensed gun dealer, would be
staying at a second residence in Fort Myers, Florida during
that time period. Based on his experience working as a
handyman for the gun dealer, Vandeberg was able to provide
information to Tillema regarding the location of the
Cincinnati home, the home’s alarm system, and the location
of a safe containing valuable guns and jewelry.
After burglarizing the house, Tillema drove back to Florida
and unloaded the majority of the stolen items into his
apartment. He continued to drive around Fort Myers with the
safe, which weighed approximately 1,000 pounds, in his
truck. Vandeberg told Tillema that it was foolish to store the
safe in his truck. Vandeberg rented a storage unit for the safe,
and the two men placed the safe in the storage unit. By
drilling a pattern of small holes in the wall of the safe, they
were able to peel away a section of the safe’s exterior and
remove the safe’s contents.
On March 30, 1997, Vandeberg and Tillema sold
approximately forty of the stolen guns, as well as two
diamond rings, at a gun show in Orlando, Florida. An
individual who had purchased a number of the guns later
contacted the burglary victim in response to reward posters
that the victim had circulated. The individual informed the
victim that he had purchased the guns from two men at the
Orlando gun show. Federal agents contacted the organizers
of the gun show and learned that Tillema had rented the booth
in question. Vandeberg’s signature also appeared on the
documents pertaining to the booth rental. Both men were
arrested. After Tillema’s arrest, law enforcement officers
seized approximately 90 guns and other items belonging to
the victim from Tillema’s apartment. However, a significant
amount of the jewelry, cash, and weaponry was never
recovered.
On May 21, 1997, a grand jury returned a seven-count
indictment against both Vandeberg and Tillema. On July 31,
1997, pursuant to a written plea agreement, Vandeberg pled

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4 United States v. Vandeberg No. 98-3009
guilty to the first two counts in the indictment: (1) conspiracy
to transport stolen property interstate in violation of 18 U.S.C.
§ 371, and (2) interstate transportation of stolen property in
violation of 18 U.S.C. § 2314. Thereafter, a probation officer
prepared a Presentence Investigation Report (PSI),
recommending that, pursuant to U.S.S.G. § 3B1.1(c),
Vandeberg’s offense level be increased by two points based
on Vandeberg’s role as an “organizer, leader, manager, or
supervisor” of the criminal activity. The PSI further indicated
that the burglary victim’s home sustained $13,162.89 in
structural damages, but that the total amount of the victim’s
losses had yet to be ascertained because numerous items were
still missing. The probation officer stated that an amended
restitution figure would be submitted to the court within 30
days. Vandeberg objected to the two-level § 3B1.1(c)
enhancement; he also objected to the imposition of an amount
of restitution that was not supported by adequate
documentation. In response, the probation officer provided
documentation to demonstrate that the victim’s house
sustained $13,162.89 in damages. The probation officer also
submitted an addendum to the PSI, stating that the victim had
been unable, as of that time, to gather additional
documentation regarding the amount of his losses.
At a sentencing hearing on December 12, 1997,
Vandeberg’s counsel reiterated the defendant’s objection to
the § 3B1.1(c) enhancement. The government agreed with
Vandeberg on this issue, indicating that “this is not a classic
case . . . where he would be in a managerial position. At best,
they were coconspirators.” Despite the government’s
acquiescence in Vandeberg’s position, the District Court
summarily concluded “based on the preponderance of the
evidence that the two-level enhancement is appropriate . . .
the defense’s objection will be denied.” The District Court
then sentenced Vandeberg to 140 months incarceration (20
months for conspiracy and 120 months for the substantive
offense) and ordered him to pay restitution in the amount of
$13,162.89.
No. 98-3009 United States v. Vandeberg 13
5Section 3664(d)(6), for example, permits a district court to refer a
restitution dispute “to a magistrate judge or special master for proposed
findings of fact and recommendations as to disposition, subject to a de
novo determination of the issue by the court.” 18 U.S.C. § 3664(d)(6).
not specifically mention the need for a hearing or any other
kind of proceeding. Second, § 3664(d)(5) must be read in
connection with the remaining provisions of the statute.
Section 3664 affords a district court a number of procedural
options in determining the proper amount of restitution,5 and
explicitly provides that a court “may require additional
documentation or hear testimony.” 18 U.S.C. § 3664(d)(4)
(emphasis added); see also Minneman, 143 F.3d at 284-85
(summarizing procedural options under § 3664(d)(5)). While
it is no doubt true that in many cases, a sentencing court will
want to conduct a hearing to obtain relevant evidence and
afford the parties an opportunity to present oral argument,
§ 3664(d)(5) does not mandate that such an evidentiary
hearing must be conducted.
Section 3664(d)(5) does, however, require the sentencing
court to resolve the restitution question--including any
objections a defendant may have--within 90 days of the
sentencing hearing. Although § 3664(d)(5) does not mention
the defendant’s right to object to the restitution portion of his
sentence, § 3664(c) explicitly states that the provisions of
Rule 32(c) of the Federal Rules of Criminal Procedure apply
to the MVRA. See 18 U.S.C. § 3664(c). Rule 32(c), in turn,
states that a court must afford parties an opportunity to be
heard on any disputed sentencing issue. See Fed. R. Crim. P.
32(c)(1) and (3). This Circuit has consistently construed the
requirements of Rule 32 in a strict manner, largely because
the rule protects a defendant’s right to due process. See, e.g.,
United States v. Hayes, 171 F.3d 389, 392-93 (6th Cir. 1999)
(district court’s reliance on victim impact letters not disclosed
to defendant constituted plain error).
The court below erred by failing to resolve the restitution
amount, and by failing to give Vandeberg an opportunity to
object to that amount, within 90 days after the sentencing

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12 United States v. Vandeberg No. 98-3009
If the victim’s losses are not ascertainable by the date
that is 10 days prior to sentencing, the attorney for the
Government or the probation officer shall so inform the
court, and the court shall set a date for the final
determination of the victim’s losses, not to exceed 90
days after sentencing. If the victim subsequently
discovers further losses, the victim shall have 60 days
after discovery of those losses in which to petition the
court for an amended restitution order.
18 U.S.C. § 3664(d)(5). Vandeberg argues that this section
unequivocally requires the district court to conduct a hearing
on any undetermined restitution amount within 90 days of the
sentencing date. According to Vandeberg, once this 90-day
period elapses, the sentencing court lacks jurisdiction to
modify a restitution order.
This case presents the first opportunity for this Circuit to
address the meaning of § 3664(d)(5). The Seventh Circuit
appears to be the only court that has interpreted this statute to
date. In United States v. Grimes, 173 F.3d 634 (7th Cir.
1999), the Seventh Circuit held that when victims’ losses
have not been ascertained by the time of sentencing,
§ 3664(d)(5) obligates a district court to “defer” entry of a
restitution order for 90 days “to give the victims the benefit of
the 90-day period.” Id. at 640. The Seventh Circuit is correct
insofar as under the plain language of the statute, a district
court “shall” establish a time by which to finalize the
restitution issue that is not to exceed 90 days after the
sentencing hearing. See 18 U.S.C. § 3664(d)(5). Thus, when
a victim’s losses have not been ascertained by the time of the
sentencing hearing, the court must inform the parties that it
will postpone the entry of restitution until a specific date
within the 90-day period. Id. Moreover, the court is
statutorily obligated to resolve the restitution issue within 90
days of the sentencing hearing. Id.
Vandeberg argues that § 3664(d)(5) also requires a district
court to conduct a restitution hearing within the 90-day
period. This argument lacks merit. First, § 3664(d)(5) does
No. 98-3009 United States v. Vandeberg 5
1Vandeberg also asked this Court to stay his appeal pending
resolution of the restitution issue in District Court. This Court granted
that motion.
Vandeberg filed a timely notice of appeal on December 22,
1997. On or about March 4, 1998--approximately 82 days
after sentencing--the District Court issued an order modifying
the restitution portion of Vandeberg’s sentence. Indicating
that the amount of the victim’s losses had been ascertained,
the court ordered Vandeberg to “immediately” pay restitution
in the amount of $165,428.41.
On May 4, 1998, Vandeberg filed a motion with the District
Court, requesting that a hearing be held on the restitution
issue.1 The court granted the motion and, at a hearing in
which the probation officer was unable to be present, the
court instructed the parties to informally meet with the
probation officer in an effort to resolve the matter. A final
restitution hearing was conducted on September 10, 1998.
Vandeberg testified on his own behalf, disputing the accuracy
of the insurance adjuster’s report. Vandeberg stated that after
the burglary, he had assisted his employer in completing the
insurance forms; based on this assistance and his personal
knowledge of the gun business, Vandeberg testified that the
victim had exaggerated his losses to the insurance company.
After considering this evidence as well as the testimony of the
probation officer, the District Court decided to reduce the
amount of restitution from $165,428.41 to $100,000.
II.
Vandeberg claims that the District Court failed to make any
factual findings to support the enhancement pursuant to
U.S.S.G. § 3B1.1(c), and, furthermore, that the enhancement
was inapplicable.
Whether a district court is required to make factual findings
on the record is a question of law subject to de novo review.
See United States v. Burnette, 981 F.2d 874, 877 (6th Cir.
1992). In this case, the District Court agreed with the

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6 United States v. Vandeberg No. 98-3009
probation officer and found that Vandeberg deserved a two-
level enhancement as an organizer, leader, manager, or
supervisor of criminal activity. See U.S.S.G. § 3B1.1(c)
(providing for two-level upward adjustment). The District
Court did not, however, articulate the factual bases for this
conclusion.
This Circuit has decided that the failure to specify the
factual basis for applying a § 3B1.1 enhancement “is not
grounds for vacating the sentence.” United States v.
Alexander, 59 F.3d 36, 39 (6th Cir. 1995). The Alexander
Court stated that “although not required under the Guidelines,
it is preferable that trial courts indicate the factual basis for
enhancing a defendant’s sentence pursuant to U.S.S.G.
§ 3B1.1.” Id. A description of the factual basis for the
enhancement is important because it provides the defendant
an understanding of the enhancement and provides a
meaningful basis for appellate review. Id. at 39-40.
Vandeberg has not persuaded us that Alexander fails to
control this case. The cases Vandeberg cites in support of his
position pertain to enhancements for obstruction of justice
pursuant to U.S.S.G. § 3C1.1. In the obstruction-of-justice
context, both the United States Supreme Court and this Court
have held that when a defendant objects to a § 3C1.1
enhancement, the trial court must “make independent findings
necessary to establish a willful impediment to or obstruction
of justice.” United States v. Dunnigan, 507 U.S. 87, 95
(1993); see also Burnette, 981 F.2d at 878 (trial court erred in
applying § 3C1.1 enhancement absent specific finding that
defendant had lied). When a defendant faces a § 3C1.1
enhancement for perjury, for example, independent findings
are necessary to assess whether the defendant possessed the
willful intent to lie, and to ensure that the defendant does not
receive the enhancement merely because he or she chose to
testify in a trial that resulted in his or her conviction. See
Dunnigan, 507 U.S. at 95-97. However, even under
Dunnigan and its progeny, a trial court is not required to
detail the factual bases for a § 3C1.1 enhancement; rather, it
is sufficient for the court to make a finding that encompasses
No. 98-3009 United States v. Vandeberg 11
3By disregarding the defendant’s financial condition for restitution
purposes, the MVRA permits full payment of restitution in the possible,
but unlikely, event that a defendant might win a lottery or otherwise strike
it rich after sentencing.
4In passing, Vandeberg references a provision of the MVRA which
provides that the statute does not apply if the trial court finds that
“determining complex issues of fact related to the cause or amount of the
victim’s losses would complicate or prolong the sentencing process” to an
unduly burdensome degree. 18 U.S.C. § 3663A(c)(3)(B). Vandeberg did
not raise this argument below, so we do not consider it on appeal.
18 U.S.C. §§ 3663A-3664. Under the MVRA, which
amended the Victim and Witness Protection Act of 1982,
restitution is an important part of the sentencing process and,
in many cases, a necessary component of a defendant’s
sentence. The MVRA requires a defendant to pay restitution
to identifiable victims who have suffered either physical
injuries or pecuniary losses as a result of certain criminal
offenses. See 18 U.S.C. § 3663A(a)(1), § 3663A(c)(1).
Specifically, restitution is mandatory--regardless of a
defendant’s financial situation--when a defendant is convicted
of a crime of violence, an offense against property, or an
offense related to tampering with consumer products.3 See 18
U.S.C. § 3663A(c)(1)(A); § 3664(f)(1)(A). Neither
Vandeberg nor the government disputes that the MVRA
required Vandeberg to pay some sort of restitution to his
employer.4
The dispute in this case regarding the legitimacy of the
restitution order centers around certain procedures a district
court may use under the MVRA. Section 3664 delineates a
panoply of procedures pertinent to the issuance and
enforcement of restitution; the statute grants a district court
discretion to choose the procedures that will best aid the court
in assessing the amount of loss. Accord United States v.
Minneman, 143 F.3d 274, 284-85, reh’g en banc denied (7th
Cir. 1998), cert. denied, 119 S.Ct. 1145 (1999) (“Notably,
Congress left the choice of procedures to the discretion of the
court.”). Section 3664(d)(5) states as follows:

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10 United States v. Vandeberg No. 98-3009
would be obliterated. See U.S.S.G. § 3B1.1, Commentary,
Background (enhancement primarily addresses relative
responsibility).
Furthermore, we are unable to conclude that the District
Court’s error in applying the two-level enhancement was
harmless. Based on an offense level of 28 and a criminal
history category of VI, Vandeberg’s imprisonment range was
140-175 months. Had the District Court not applied the
§ 3B1.1(c) enhancement, Vandeberg’s offense level would
have been 26, and the corresponding sentencing range would
have been 120-150 months. Remand is appropriate unless the
appellate court is convinced that the trial court “would have
imposed the same sentence absent [its] misinterpretation of
the guideline.” United States v. Parrott, 148 F.3d 629, 635
(6th Cir. 1998) (citing 18 U.S.C. § 3742(f)(1) and Williams v.
United States, 503 U.S. 193, 203 (1992)). Because we cannot
conclude that the District Court would have imposed the same
length of imprisonment if properly confronted with a different
sentencing range, we vacate the enhancement and remand for
reconsideration. Id.
III.
Vandeberg also claims that pursuant to 18 U.S.C.
§ 3664(d)(5), the District Court lacked authority to hold a
hearing or modify the restitution portion of his sentence after
90 days had elapsed after the December 12, 1997 sentencing
hearing. Vandeberg further argues that any modification to
restitution occurring within 90 days of the sentencing date
must be accompanied by notice to the defendant and an
opportunity to be heard. Finally, he challenges the amount of
restitution the District Court imposed. Our review of
restitution orders is “bifurcated.” United States v. Guardino,
972 F.2d 682, 686 (6th Cir. 1992). That is, we review the
propriety of ordering restitution in the first instance de novo,
and we review the amount that was ordered under the abuse
of discretion standard. Id.
The District Court sentenced Vandeberg in accordance with
the Mandatory Victims Restitution Act of 1996 (“MVRA”),
No. 98-3009 United States v. Vandeberg 7
the appropriate predicates for the enhancement. See id. at 95-
96.
Vandeberg seems to be conflating the obligation of the trial
court to decide a disputed sentencing issue with the
preference for placing the factual reasons underlying that
decision on the record. See Fed. R. Crim. P. 32(c)(1) (for
each controverted sentencing issue, court must make finding
or determine that no finding is necessary); U.S.S.G.
§ 6A1.3(b) (“court shall resolve disputed sentencing factors
at a sentencing hearing in accordance with Rule 32(c)(1)”);
Alexander, 59 F.3d at 39 (not necessary, but preferable, that
court articulate reasons for finding on record). In this case,
the District Court did, in fact, reject Vandeberg’s argument
that an enhancement pursuant § 3B1.1(c) was inapplicable.
The court simply did not articulate the factual basis for that
decision. As previously discussed, the failure to articulate
such a factual basis does not constitute reversible error.
Alexander, 59 F.3d at 39.
While we reiterate the holding of Alexander in this regard,
we emphasize the importance the Alexander panel placed on
including the factual basis for a decision on the record. Id. at
39-40. It is especially “preferable,” id. at 39, for a district
court to articulate the precise reasons for applying a § 3B1.1
enhancement when, as in this case, the defendant pled guilty
and the court lacked the advantage of having observed a trial.
When a district court fails to articulate the factual basis for an
enhancement, it either compels this Court to review the record
de novo, or runs the risk that this Court will have to remand
the case for insufficient findings and reasoning. See United
States v. Gort-DiDonato, 109 F.3d 318, 323 (6th Cir. 1997)
(remand necessary when trial court failed to make appropriate
findings regarding applicability of § 3B1.1 enhancement);
United States v. Leek, 1996 WL 99811, 78 F.3d 585, at *8
(6th Cir. 1996) (unpublished) (remand for further findings
ordinarily appropriate, but unnecessary when record failed to
support § 3B1.1 enhancement); Alexander, 59 F.3d at 39
(failure to articulate factual basis for § 3B1.1 enhancement
“essentially compels” de novo review).

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8 United States v. Vandeberg No. 98-3009
2If the District Court had explained the factual reasons for applying
the § 3B1.1(c) enhancement, then we would have reviewed those factual
findings for clear error, and reviewed de novo the District Court’s legal
conclusions regarding the application of the Sentencing Guidelines. See,
e.g., United States v. Clay, 117 F.3d 317, 320 (6th Cir.), cert. denied, 118
S.Ct. 395 (1997). Because the District Court failed to articulate the
factual basis for the enhancement, we are compelled to conduct a de novo
review of the record and determine whether the enhancement is
applicable, or whether remand for further findings is required. Accord
Alexander, 59 F.3d at 39.
Based on a thorough review of the record, we conclude that
remand for further findings is unnecessary because the record
clearly fails to support the imposition of a two-level
enhancement pursuant to § 3B1.1(c).2 This section provides
for a two-level adjustment if the defendant was “an organizer,
leader, manager, or supervisor” in any criminal activity that
involved fewer than five people or that was otherwise not
extensive. U.S.S.G. § 3B1.1(c). Application Note 2 provides
as follows:
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. An
upward departure may be warranted, however, in the case
of a defendant who did not organize, lead, manage, or
supervise another participant, but who nevertheless
exercised management responsibility over the property,
assets, or activities of a criminal organization.
U.S.S.G. § 3B1.1, Commentary, Application Note 2. In
general, “a defendant must have exerted control over at least
one individual within a criminal organization for the
enhancement of § 3B1.1 to be warranted.” Gort-DiDonato,
109 F.3d at 321 (footnote omitted). In determining whether
a defendant qualifies as a leader, organizer, manager, or
supervisor, a trial court should consider a number of factors,
including but not limited to the defendant’s exercise of
decision-making authority, any recruitment of accomplices,
“the claimed right to a larger share of the fruits of the crime,”
the degree of participation in planning the offense, and the
No. 98-3009 United States v. Vandeberg 9
degree of control the defendant exercised over others.
U.S.S.G. § 3B1.1, Commentary, Application Note 4. The
government bears the burden of proving that the enhancement
applies by a preponderance of the evidence. United States v.
Martinez, 181 F.3d 794, 797 (6th Cir. 1999).
The government failed to meet this burden in this case.
Indeed, at the sentencing hearing, the Assistant United States
Attorney agreed with Vandeberg that a § 3B1.1(c)
enhancement did not apply. Although Vandeberg provided
Tillema, his co-conspirator, information crucial to helping
Tillema burglarize the house, there is no indication that
Vandeberg either recruited Tillema or exercised any authority
over him. See id. at 798-99 (§ 3B1.1(c) enhancement
applicable when defendant recruited accomplices, supervised
criminal activity, and exercised decision-making authority).
Vandeberg neither claimed a right to a larger share of the
fruits of the crime, nor took a leadership role in planning the
details of the offense. Rather, it appears that Tillema initiated
the criminal activity, exercised his own decision-making
authority, and retained possession over many of the stolen
items. In sum, there is insufficient evidence to show that, as
Application Note 2 requires, Vandeberg either (1) organized,
led, managed, or supervised Tillema, or (2) exercised any
more “management responsibility over the property, assets, or
activities” of the crime than did Tillema.
The government’s reliance on the probation officer’s
reasoning--i.e., that Vandeberg provided crucial information
to Tillema and played an important role in the offense--is
misplaced. Merely playing an essential role in the offense is
not equivalent to exercising managerial control over other
participants and/or the assets of a criminal enterprise. See
United States v. Albers, 93 F.3d 1469, 1487 (10th Cir. 1996)
(playing “important or essential role” in crime is insufficient
to show that defendant deserves § 3B1.1 enhancement).
Indeed, if key participation were sufficient to justify an
enhancement pursuant to § 3B1.1, then both Vandeberg and
Tillema would receive the enhancement, and the Guidelines’
primary concern with addressing “relative responsibility”

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