[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 4, 2006
No. 05-15257 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00536-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESILIO RIVERA,
a.k.a. Roberto,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 4, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Cesilio Rivera, though counsel, appeals his 188-month sentence for
conspiracy to possess with the intent to distribute methamphetamine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii). The district court calculated
Rivera’s advisory Guidelines range as 188 to 235 months. On appeal, Rivera
argues that the district court clearly erred in assessing a two-level increase in his
offense level for an aggravating role in the offense, pursuant to U.S.S.G. §
3B1.1(c). After review, we affirm Rivera’s 188-month sentence.
A. Role Enhancement
Section 3B1.1 of the Sentencing Guidelines allows the sentencing court to
increase a defendant’s offense level by two, three or four levels 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.
U.S.S.G. § 3B1.1.1 “Section 3B1.1 requires the exercise of some authority in the
1
Rivera was sentenced on September 1, 2005, and after United States v. Booker, 543 U.S.
220, 125 S.Ct. 738 (2005). We review the district court’s application of the Guidelines under the
same standards as we did pre-Booker, namely, that the district court’s interpretation of the
Guidelines is reviewed de novo and factual findings are reviewed for clear error. United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We first determine, utilizing pre-Booker
precedent, whether the district court correctly interpreted and applied the Guidelines to determine
2
organization, the exertion of some degree of control, influence, or leadership.”
United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). The four-level
enhancement in § 3B1.1(a) also requires criminal activity that involved five or
more participants or was otherwise extensive. U.S.S.G. § 3B1.1(a). However, “the
assertion of control or influence over only one individual is enough to support a
§ 3B1.1(c) enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th
Cir. 2000). In assessing a defendant’s role in the offense, the factors the courts
should consider include:
[1] the exercise of decision making authority, [2] the nature of
participation in the commission of the offense, [3] the recruitment of
accomplices, [4] the claimed right to a larger share of the fruits of the
crime, [5] the degree of participation in planning or organizing the
offense, [6] the nature and scope of the illegal activity, and [7] the
degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4.
B. Rivera’s Enhancement
Here, the district court did not clearly err in enhancing Rivera’s sentence by
two levels for his aggravated role in the offense. Through the testimony of an
undercover agent, the government demonstrated that Rivera (1) negotiated the
price of a pound of methamphetamine from $11,000 to $12,500; (2) negotiated the
the appropriate advisory Guidelines range. See id. at 1178. On appeal, Rivera argues only about
the role enhancement and does not raise a reasonableness issue.
3
terms of another sale, including allowing the agent to take the drugs to New York
and pay later; and (3) gave direction to a subordinate in the presence of the agent.
Further, on one occasion, the undercover agent attempted to negotiate prices with
the same subordinate, who told the agent to call Rivera directly. In short, Rivera
exercised decision-making authority, was the main participant in the commission
of the offense, had a large, if not exclusive, role in planning or organizing the
offense, and appeared to control a subordinate’s activities. Thus, there is no
reversible error in the role enhancement in this case.
AFFIRMED.
4