[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 29, 2009
No. 08-15437 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00049-CR-JOF-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JON PATTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 29, 2009)
Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Jon Patton appeals his sentence of 120 months’ imprisonment, imposed after
he pled guilty to conspiracy to possess with intent to distribute at least 5 kilograms
of cocaine and at least 1 kilogram of heroin, in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846 . Patton, a security screener who worked for the
Transportation Security Administration (“TSA”) at the Atlanta airport, worked
with Andre Mays, another TSA officer, and Leslie Adgar, a customer service agent
for Delta Airlines, to transport what he believed was cocaine and heroin from the
Atlanta airport to New York’s LaGuardia airport.
On appeal, he argues that the evidence did not support his aggravating role
enhancement, imposed pursuant to U.S.S.G. § 3B1.1(c), because: (1) Mays was not
a participant in the offense; (2) he did not exert control or influence over Mays;
and (3) he did not exert control or influence over Adgar. He also argues that the
second and third transactions should have been filtered out of the sentencing
calculus because the government engaged in sentencing factor manipulation when
it opted to use fake heroin, rather than fake cocaine, for the second transaction, and
when it decided to engage him in a third transaction.
“We apply a two-pronged standard to review claims that the district court
erroneously applied sentencing guidelines adjustments. First, we review the
factual findings underlying the district court’s sentencing determination for clear
error. We then review the court’s application of those facts to the guidelines de
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novo. Although the sentencing guidelines are now advisory after the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), district courts are still required to correctly calculate the
appropriate advisory guidelines range.” United States v. Williams, 527 F.3d 1235,
1247-48 (11th Cir. 2008) (citations omitted). “The district court’s application of §
3B1.1 to determine that a person is a ‘participant’ is a question law that we review
de novo, while we review the underlying factual findings for clear error.” Id. at
1249.
If the defendant was an organizer, leader, manager, or supervisor of the
criminal activity, his offense level may be increased by two. U.S.S.G. § 3B1.1(c).
“To qualify for an adjustment under this section, the defendant must have been the
organizer, leader, manager, or supervisor of one or more other participants.” Id.,
comment. (n.2). The Guidelines define a “participant” to be “a person who is
criminally responsible for the commission of the offense, but need not have been
convicted.” Id., comment. (n.1).
To determine that an individual is a participant within the meaning of
§ 3B1.1, the court must determine, by a preponderance of the evidence, that the
individual was criminally responsible. Williams, 527 F.3d at 1248-49. Because
the burden of proof at sentencing is different than the burden of proof at trial, a
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defendant may be subject to the role enhancement for managing or directing an
individual who was acquitted of the underlying offense. Id. However, where the
individual’s involvement in the offense is de minimus, and the evidence is
insufficient to show by a preponderance of the evidence that he was criminally
responsible for the offense, the enhancement is improper. Id. at 1249. In Williams,
we held that the defendant’s husband was not a participant because, although the
evidence may have shown that he acted unethically, it “f[e]ll short of
demonstrating by a preponderance of the evidence that [he] was criminally
responsible for his wife’s wire fraud and federal funds theft.” Id.
The Guidelines provide that, in distinguishing a leadership role, the district
court should consider:
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). “[T]he assertion of control or influence over
only one individual is enough to support a §3B1.1(c) enhancement.” United States
v. Phillips, 287 F.3d 1053, 1058 (11th Cir. 2002) (internal quotation and citation
omitted).
We have affirmed a defendant’s aggravated role enhancement where there
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was evidence that he recruited others. See United States v. Thomas, 446 F.3d
1348, 1355 n.2 (11th Cir. 2006) (affirming the enhancement because it “was
supported by [the undercover officer’s] testimony that [the defendant] recruited the
others and co-defendant Castillo’s testimony that [the defendant] recruited him.”).
Similarly, we have affirmed the enhancement where the defendant “recruited [an
individual] into the plot, prompted him to purchase weapons, and briefed him on
the bombing plan.” United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir.
2004).
Here, the evidence supports the district court’s application of the role
enhancement. Patton recruited Adgar, a fact stated in the PSI that he did not
dispute. Under Thomas, the recruitment of a co-conspirator is sufficient to warrant
the § 3B1.1(a) enhancement. In addition, Patton was instrumental in planning the
offense; and he also recruited Mays (a participant) and exercised management over
Mays.
“[W]e have considered sentencing manipulation as a viable defense.”
United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing
factor manipulation occurs when the government’s manipulation of a sting
operation, even if insufficient to support a due process claim, requires that the
manipulation be filtered out of the sentencing calculus.” Id. “The standard for
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sentencing factor manipulation is high, even in the circuits where it has been
recognized as a viable defense to the application of a mandatory minimum,” and an
adjustment is appropriate only where the government engages in “extraordinary
misconduct.” Id. at 1270-71.
The government did not engage in “extraordinary misconduct” when it opted
to provide fake heroin, rather than fake cocaine, to Patton, because Patton had
agreed to smuggle drugs through the airport and did not limit the kind of drugs. In
addition, the government did not engage in “extraordinary misconduct” when it
proceeded with the third transaction, given Patton’s references to his ability to
involve other TSA agents in the operation. Accordingly, we affirm the district
court’s finding that the government did not engage in sentencing factor
manipulation in this case.
Upon review of the record and consideration of the parties’ briefs, we affirm
Patton’s sentence.
AFFIRMED.1
1
Patton’s request for oral argument is denied.
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