On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 95-00092-2)
BEFORE: BECKER, MCKEE and GARTH Circuit Judges
Argued Wednesday, November 6, 1996
In the context of U.S.S.G. Section(s) 3B1.1(c) which authorizes an enhancement of two levels when a defendant is characterized as a "supervisor", the question we must answer in this appeal is: when is a supervisor not a supervisor? In the instant case, we hold that one is only a "supervisor" under U.S.S.G. Section(s) 3B1.1(c) when he is so involved in, and connected to, the illegal activity of others that he actually supervises their illegal conduct, and is not just a supervisor by virtue of his de jure position in the police department hierarchy.
Defendant Thomas DeGovanni was a police sergeant in the 39th District Five Squad in the city of Philadelphia. On February 25, 1995, he was charged with Conspiracy to Commit Offenses Against the United States in violation of 18 U.S.C. Section(s) 371; Theft Concerning Program Receiving Federal Funds in violation of 18 U.S.C. Section(s) 666; Obstruction of Justice in violation of 18 U.S.C. Section(s) 1503; and two counts of Interference with Interstate Commerce by Robbery in violation of 18 U.S.C. Section(s) 1951. *fn1 On April 6, 1995, DeGovanni pled guilty to one count of Interference with Interstate Commerce by Robbery and one count of Obstruction of Justice. DeGovanni was sentenced on April 15, 1996 to 84 months incarceration and a $1,000 fine. DeGovanni now appeals the sentence imposed, on grounds that his sentence was improperly enhanced under U.S.S.G. Section(s) 3B1.1(c) for his role as a "supervisor".
The district court had jurisdiction over this matter under 18 U.S.C. Section(s) 3231. We have appellate jurisdiction pursuant to 28 U.S.C. Section(s) 1291 and 18 U.S.C. Section(s) 3742. Our review of the district court's interpretation of the Sentencing Guidelines is plenary, and we review the underlying factual findings for clear error. See United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir. 1995), cert. denied 116 S. Ct. 1032 (1996); United States v. Katora, 981 F.2d 1398, 1401 (3d Cir. 1992). Here, because there is no factual dispute concerning DeGovanni's role as a supervisor in the police department or about the nature of his activities within the conspiracy, we will exercise plenary review to determine whether Section(s) 3B1.1(c) should apply to the facts in this case, so as to enhance DeGovanni's sentence two levels.
The sole question in this appeal is whether defendant DeGovanni, who served as a sergeant in the 39th District Five Squad, should be considered a supervisor in criminal activity -- an activity which involved members of the Philadelphia police force, but did not require that he, DeGovanni, play an active, supervisory role in the criminal offenses committed.
The government charges that DeGovanni's failure to report and otherwise deter his subordinates from engaging in criminal misconduct, constituted the supervision to which Section(s) 3B1.1(c) refers. The government claims that "...DeGovanni can best be described as agreeing to go along with and profit[ing] from -- as opposed to actually directing -- the criminal conduct to which he has admitted." Brief of Appellant DeGovanni at 7, quoting Presentence Memorandum of Government (Exhibit A at 3). As such, the government argues that, by virtue of DeGovanni's supervisory title and responsibilities as sergeant, DeGovanni was a supervisor within the meaning of Section(s) 3B1.1(c).
DeGovanni, on the other hand, asserts that he was no more than a de jure supervisor in the 39th District Five Squad, and did not actively participate in the criminal activities out of which the charges arose. Indeed, in his brief on appeal, DeGovanni characterizes his involvement as no more than passive. He argues that, although he was a sergeant in the police department, he did not supervise or manage his co-conspirators during the commission of their crimes. Although he admits participation in, and profiting from, the criminal activities, he contends that he played a secondary role, and that he was a mere 'rank and file' participant. See Brief of Appellant DeGovanni at 12-14.
DeGovanni further argues that his failure to report his co-conspirators, although violative of his police oath and his responsibilities as a sergeant, was not a decision motivated by concerns for the group, and did not further the group's activities. Finally, he claims that he "did not manage, direct, supervise, or lead the others or decide when, where or how the crimes with which he and the others were charged would be ...