United States of America v. Jack Whitledge

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2021
Decided October 12, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2764
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACK WHITLEDGE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Indiana,
Evansville Division.
No. 3:19CR00017-003
Richard L. Young,
Judge.
O R D E R
Working with his partner and girlfriend, Jack Whitledge purchased and sold
three kilograms of methamphetamine. At sentencing he argued for a minor-role
reduction under U.S.S.G. §3B1.2, which the court denied. Because the record and the
Sentencing Guidelines adequately support that ruling, we affirm.
Whitledge began his venture with Jessica Scarberry after he bought meth from
her. According to Scarberry, she and Whitledge jointly paid $12,000 for a shipment of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 3 --

No. 20-2764 Page 2
three kilograms of meth, and they began to sell it immediately. Their sales ended when
they were arrested after Scarberry sold some meth to a confidential informant. After a
search of their home, authorities found them with a “large amount” of cash; all but
about 500 grams of meth had been distributed.
Whitledge pleaded guilty to and was sentenced for several crimes: conspiracy to
possess with the intent to distribute, and distribution of, 500 grams or more of
methamphetamine, 21 U.S.C. §§ 841(a)(1), 846, and possession of a firearm as a felon, 18
U.S.C. §922(g)(1). The presentence investigation report attributed three kilograms of
meth to Whitledge and calculated a sentencing range of 210 to 262 months based on an
offense level of 33 and a criminal history category of V. Whitledge argued that he was
entitled to a minor-role deduction to his offense level under U.S.S.G. §3B1.2 because he
did not know about two earlier shipments to Scarberry, did not help buy the shipment
of three kilograms, and did not sell more than 500 grams of meth.
Before overruling the objection, the court made factual findings based on the PSR
and evidence submitted at the hearing. The court ruled that the sale of three kilograms
of meth was “reasonably foreseeable” to Whitledge. It also found that he was
romantically involved with Scarberry, knew that she dealt meth, knew of two prior
shipments of meth to her, jointly purchased a third shipment of three kilograms, and
when arrested had a “large amount” of cash. After making these findings, the district
court denied Whitledge’s request for a minor-role reduction. The court sentenced him
to a below-guidelines prison term of 148 months’ imprisonment.
Whitledge argues that the district court erred by not granting him a minor-role
reduction. In his view, the district court impermissibly relied solely on the quantity of
drugs involved. See United States v. Sandoval-Velazco, 736 F.3d 1104, 1109 (7th Cir. 2013).
But the sale of nearly three kilograms of meth was not the only factor supporting the
court’s decision. The court’s factual findings, which are not clearly erroneous,
demonstrate that it also considered “the degree to which the defendant understood the
scope and structure of the criminal activity” and “the nature and extent of the
defendant’s participation in the commission of the criminal activity.” See U.S.S.G.
§3B1.2 cmt. n.3(C)(i), (iv). The court found that Whitledge had bought meth from
Scarberry, had an intimate relationship with her, and knew about two prior shipments
of meth to her. Collectively, these facts support the court’s conclusion that Whitledge
understood the scope and structure of their criminal endeavor. Likewise, the court’s
factual finding that he helped buy and arrange to sell the third shipment of three
kilograms supports the conclusion that he significantly participated in the conspiracy

-- 2 of 3 --

No. 20-2764 Page 3
The presence of these two factors (knowledge of scope and significance of role), in
addition to drug quantity, justified the decision to deny the minor-role reduction.
Sandoval-Velazco, 736 F.3d at 1109.
Whitledge responds that the district court should have compared his role in the
offense to the “average” participant. See United States v. Diaz-Rios, 706 F.3d 795, 799 (7th
Cir. 2013). Even an “essential” or “indispensable” member of a conspiracy, he argues,
may qualify for the reduction because the standard is whether the defendant “is
substantially less culpable than the average participant.” U.S.S.G. §3B1.2 cmt. n.3(C);
United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011). “While it may have been
more effective to have an explicit discussion regarding the average member of the
conspiracy, we cannot hold that such wording is required at every sentencing hearing
… if … a comparison to other members of the conspiracy was at least implicitly made.”
Sandoval-Velazco, 736 F.3d at 1108. The district court implicitly did so here. It found that
Whitledge and Scarberry both knew how to procure meth, jointly funded the third
shipment, and partnered in its distribution. This implicit comparison to his co-
conspirator supports the court’s decision to deny Whitledge a minor-role reduction.
AFFIRMED

-- 3 of 3 --