Court Erred By Not Determining Scope of Jointly Undertaken Conduct

 US v. Bright: Bright was involved with others in the sale of drugs, largely using two middlemen to meet with the CI to whom Bright would eventually sell drugs. Along with seven others, Bright was indicted for conspiracy to possess with intent to possess multiple types of drugs, although Bright’s conduct was limited to fentanyl. Bright pleaded guilty. At sentencing, the district court imposed a three-level enhancement for aggravating role in the conspiracy, concluding that “the criminal activity involved five or more participants.” Bright argued only a two-level enhancement should apply since his conduct only involved supervising two others. The district court imposed a sentence of 97 months, the top of the resulting Guideline range.

On appeal, the Fourth Circuit vacated Bright’s sentence. Relying on last year’s decision in Evans, the court concluded that the district court had made the same error here, in that it failed to first determine Bright’s specific role in the conspiracy before determining the extent of the activity that he supervised. Nor did the district court make a determination that that conduct was “otherwise extensive,” as the enhancement required.