UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4030
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MIGUEL GUILLON AMADOR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00130-RJC-1)
Submitted: February 16, 2012 Decided: March 13, 2012
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Steven
Slawinski, Assistant Federal Defenders, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Guillon Amador pled guilty to one count of
conspiracy to distribute and possess with intent to distribute
five or more kilograms of cocaine, in violation of 21 U.S.C.
§ 846 (2006), and one count of possession with intent to
distribute five or more kilograms of cocaine, in violation of 21
U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2011) (2006). The
district court sentenced Amador to 210 months in prison and
ordered that he reimburse the United States $1000 toward the
cost of his court-appointed attorneys’ fees. Amador timely
appealed. We affirm in part, vacate in part, and remand to the
district court for partial resentencing.
On appeal, Amador contends that the district court
erred (1) when it held Amador responsible for more than fifteen
kilograms of cocaine; (2) in applying an upward adjustment to
Amador’s offense level upon finding him a manager or supervisor
in the conspiracy; and (3) in ordering Amador to reimburse the
Government $1000 for attorneys’ fees.
Turning first to Amador’s claim regarding drug weight,
we “review the district court’s calculation of the quantity of
drugs attributable to a defendant for sentencing purposes for
clear error.” United States v. Slade, 631 F.3d 185, 188 (4th
Cir. 2011) (internal quotation marks omitted). Under this
standard, we will reverse the district court only “if left with
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the definite and firm conviction that a mistake has been
committed.” Id. (internal quotation marks omitted). At
sentencing, the Government need only establish the amount of
drugs involved by a preponderance of the evidence. United
States v. Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008). Our
review of the record leads us to conclude that the Government
satisfied its burden of proof, and therefore the district court
did not err in holding Amador responsible for fifteen kilograms
of cocaine.
Next, Amador claims that the district court erred in
applying an upward adjustment to Amador’s offense level on
finding him a manager or supervisor in the conspiracy. “A
sentencing court’s ruling on the aggravating role adjustment is
a factual determination reviewed for clear error.” United
States v. Llamas, 599 F.3d 381, 389 (4th Cir. 2010) (internal
quotation marks omitted). Under U.S. Sentencing Guidelines
Manual (“USSG”) § 3B1.1(b) (2009), a three-level enhancement is
authorized “[i]f 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.” Amador
does not contest that the drug conspiracy at issue was of the
requisite size. A defendant need supervise as few as one other
person to warrant the enhancement. USSG § 3B1.1 cmt. nn.2, 3.
The leadership enhancement “is appropriate where the evidence
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demonstrates that the defendant controlled the activities of
other participants or exercised management responsibility.”
Slade, 631 F.3d at 190 (internal quotation marks omitted). The
facts establishing the enhancement must be supported by a
preponderance of the evidence. United States v.
Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir. 2011).
The Guideline commentary identifies numerous factors
to be considered in determining the applicability of an
aggravating role enhancement, including whether the defendant
exercised decision-making authority, claimed the right to a
larger share of the profit, and exercised authority and control
over others. USSG § 3B1.1 cmt. n.4. However, this court has
also noted that “being a buyer and seller of illegal drugs, even
in league with more than five or more other persons, does not
establish that a defendant has functioned as an organizer,
leader, manager or supervisor of criminal activity.” United
States v. Sayles, 296 F.3d 219, 225 (4th Cir. 2002) (internal
quotation marks omitted). After thoroughly reviewing the record
in light of the relevant factors, we conclude that the district
court did not err in sentencing Amador as a manager or
supervisor of the conspiracy.
Finally, Amador claims that the district court erred
in requiring him to reimburse the United States $1000 for his
court-appointed attorneys’ fees without making a specific
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finding as to his present ability to pay. Both parties agree
that, as this issue was not preserved below, we review the
district court’s determination to order reimbursement for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 732-35 (1993).
The Criminal Justice Act, 18 U.S.C. § 3006A (2006),
mandates that the government provide legal representation for
those charged with a federal felony who are unable to pay for
counsel. The statute provides that if a court later determines
a defendant is able to make full or partial payment for his
counsel, the court may authorize such payment. § 3006A(c), (f).
This court recently held, in United States v. Moore, 666 F.3d
313, 2012 WL 208041, at *6 (4th Cir. Jan. 25, 2012), that under
the plain language of the statute, “the district court must base
the reimbursement order on a finding that there are specific
funds, assets, or asset streams (or the fixed right to those
funds, assets or asset streams) that are (1) identified by the
court and (2) available to the defendant for the repayment of
the court-appointed attorneys’ fees.” Id. at *6. Because the
district court made no such finding in Moore, this court found
that the district court had erred, vacated the portion of
Moore’s sentence relating to the reimbursement of attorney’s
fees, and remanded. Id. at *9.
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Similarly, in the case at hand, the district court
made no determination as to Amador’s ability to pay the ordered
amount. We conclude that this error is plain, in light of the
clear statutory language, and that the error affects Amador’s
substantial rights. We thus find it appropriate to exercise our
discretion to direct the district court to resentence Amador as
to this portion of the sentence. See Olano, 507 U.S. at 732-36.
Accordingly we vacate that part of Amador’s sentence requiring
him to repay $1000 of court-appointed attorneys’ fees, and
remand for resentencing as to this issue only, consistent with
this opinion and our decision in Moore.
We affirm Amador’s conviction, which he does not
challenge on appeal. We affirm Amador’s sentence in all
respects except as to the direction that Amador repay
court-appointed attorneys’ fees. We vacate that portion of the
judgment, and remand for reconsideration of that issue. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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