[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2008
THOMAS K. KAHN
No. 07-13916
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00125-CR-ORL-19-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELVIN BERNARD FLOWERS,
a.k.a. Nob,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 1, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Delvin Bernard Flowers appeals his 141-month sentence, imposed
after he pled guilty to conspiracy to possess with intent to distribute and to
distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A),
and 841(b)(1)(C). Flowers makes two arguments on appeal. First, he contends
that the district court erred by enhancing his sentence four levels under U.S.S.G.
§ 3B1.1(a) for a leadership role in the offense. Flowers argues that there was no
evidence that he supervised five or more participants, directed or procured the aid
of underlings, or that his status was anything more than that of a supplier or
distributor. Second, Flowers argues that the district court erred because, once
Flowers challenged his prior convictions at sentencing, the court should have
directed the government to meet its burden of showing that Flowers’s convictions
were not misdemeanors, as Flowers had argued they were. Further, he argues that,
but for the error, the district court would have departed for substantial assistance
from a criminal history category II rather than III.
I. Leadership Role under § 3B1.1(a)
“A district court’s upward adjustment of a defendant’s Guidelines offense
level due to his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding
of fact reviewed only for clear error.” United States v. Phillips, 287 F.3d 1053,
1055 (11th Cir. 2002). “The government bears the burden of proving by a
preponderance of the evidence that the defendant had an aggravating role in the
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offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).
The Sentencing Guidelines provide for an increase in the offense level based
on the defendant’s aggravating role in the offense. U.S.S.G. § 3B1.1. A four-level
increase is applied if the defendant “was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). In making the role-enhancement determination, the district
court should consider several factors, including:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4). “In assessing whether an organization is
‘otherwise extensive,’ all persons involved during the course of the entire offense
are to be considered.” Id., comment. (n.3).
“[S]ection 3B1.1(a)’s plain language requires both a leadership role and an
extensive operation.” United States v. Yates, 990 F.2d 1179, 1181 (11th Cir.
1993). It requires “the exercise of some authority in the organization, the exertion
of some degree of control, influence, or leadership,” and a mere “seller/buyer
relationship” or the defendant’s status as a supplier is insufficient to justify
imposition of an upward departure under § 3B1.1(a). Id. at 1182 (quoting United
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States v. Brown, 944 F.2d 1377, 1385 (7th Cir. 1991)).
An “otherwise extensive” operation does not require a set number of
criminally responsible participants. United States v. Holland, 22 F.3d 1040, 1045
(11th Cir. 1994). However, to demonstrate that the defendant occupied a
leadership role under the “otherwise extensive” standard, “there must be at least
one participant in addition to the defendant.” Id. at 1045, n.8.
The record shows that Flowers was more than a mere supplier. He exercised
decision-making authority and had a high degree of participation in the conspiracy,
as well as extensive control and authority over others in what the district court
properly found to be an “otherwise extensive” drug distribution conspiracy. The
district court, therefore, did not commit clear error in imposing a four-level
enhancement to Flowers’s offense level based on his role in the conspiracy under
U.S.S.G. § 3B1.1(a).
II. Criminal History Calculations
We review issues raised for the first time on appeal using the plain error
standard. United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776,
(1993). Under plain error review, there must be (1) an error, (2) that is plain, and
(3) that affects substantial rights. Olano, 507 U.S. at 732, 113 S. Ct. at 1776.
Section 4A1.1 of the Sentencing Guidelines states, in part, that to determine
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a criminal history category: (a) three points are added for each prior sentence of
imprisonment exceeding one year and one month; (b) two points are added for
each prior sentence of at least 60 days’ imprisonment; and (c) one point is added
“for each prior sentence not counted in (a) or (b), up to a total of [four] points for
this item.” U.S.S.G. § 4A1.1(a)-(c). “Prior sentence” means “any sentence
previously imposed upon adjudication of guilt, . . . for conduct not part of the
instant offense.” U.S.S.G. § 4A1.2(a)(1). “[W]hen a defendant challenges a
factual basis of his sentence, the government has the burden of establishing the
disputed fact by a preponderance of the evidence.” United States v. Ndiaye, 434
F.3d 1270, 1300 (11th Cir. 2006) (citation omitted).
Section 4A1.3(b)(1) states, in pertinent part:
If reliable information indicates that the defendant’s criminal history
category substantially over-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will
commit other crimes, a downward departure may be warranted.
U.S.S.G. § 4A1.3(b)(1) (emphasis added). We do not normally review the district
court’s denial of a downward departure, except in cases where the district court
incorrectly believed that it did not have the authority to depart. United States v.
Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003). “[W]e assume that the sentencing
court understood it had authority to depart downward” when the record does not
indicate any ambivalence. United States v. Chase, 174 F.3d 1193, 1195 (11th
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Cir.1999).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not commit plain error in failing to direct the government to
meet its burden of showing that Flowers’s prior convictions were not in fact
misdemeanors or in its calculation of Flowers’s criminal history category. Because
the issue of whether Flowers’s past offenses were misdemeanors was never in
dispute, and because the district court properly applied § 4A1.1(c) of the guidelines
to Flowers’s prior convictions, there was no plain error. Further, we conclude that
the district court properly exercised its discretion to deny Flowers a downward
departure.
For the aforementioned reasons, we affirm Flowers’s sentence.
AFFIRMED.
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