The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16311 ELEVENTH CIRCUIT
SEPTEMBER 28, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00315-CR-1-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMERSON VASHON SMALLS,
a.k.a. Fat Boy,
a.k.a. Jamo,
a.k.a. Jamie,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 28, 2010)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Jamerson Vashon Smalls appeals his sentence of 262 months’ imprisonment,
imposed after he pled guilty to 1 count of conspiracy to possess with intent to
distribute, and to distribute, 5 kilograms or more of cocaine, 50 grams or more of
cocaine base, and 50 kilograms or more of marijuana, in violation of 21 U.S.C. §
846. Smalls argues that the district court erred in applying a role enhancement to
his guideline calculation under U.S.S.G. § 3B1.1(a) for being an organizer or
leader of a criminal activity. After thorough review, we affirm.
“A defendant’s role as an organizer or leader is a factual finding that we
review for clear error to determine if the enhancement under § 3B1.1 was applied
appropriately.” United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005).
A failure to object to allegations of fact in a PSI admits those facts for sentencing
purposes, and “[a] sentencing court’s findings of fact may be based on undisputed
statements in the PSI.” United States v. Bennett, 472 F.3d 825, 832-34 (11th Cir.
2006).
Under § 3B1.1(a), a defendant’s offense level is increased by four levels
“[i]f 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).
We have held that § 3B1.1(a) “requires both a leadership role and an extensive
operation. Without proof of the defendant’s leadership role, evidence of the
2
operation’s extensiveness is insufficient as a matter of law to warrant the
adjustment.” United States v. Alred, 144 F.3d 1405, 1421 (11th Cir. 1998)
(quotation omitted; emphasis in original). The commentary to § 3B1.1 sets forth
the factors to be considered by a district court “[i]n distinguishing a leadership and
organizational role from one of mere management or supervision,” as follows:
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). The government must prove the existence of a
leadership role by a preponderance of the evidence, but the district court’s
application of the facts of the case to the guideline factors is entitled to deference
on appeal. Alred, 144 F.3d at 1421; Ramirez, 426 F.3d at 1355. The guideline
commentary further provides that the defendant will qualify for the enhancement if
he was the organizer or leader “of one or more other participants.” U.S.S.G. §
3B1.1, comment. (n.2); see United States v. Mandhai, 375 F.3d 1243, 1248 (11th
Cir. 2004) (ruling that, with respect to U.S.S.G. § 3B1.1(c), “[t]he assertion of
control or influence over only one individual is sufficient to support the
[leadership] role enhancement”).
3
Here, the district court did not clearly err in applying the guideline factors
set forth in the § 3B1.1 commentary to the undisputed facts of the case to
determine that Smalls qualified as an organizer or leader of the drug conspiracy.
For starters, although Smalls disputed the information in the PSI that was received
from two individuals named Chris Robbins and Jemond Burke, Smalls did not
dispute the information about his role in the conspiracy that was received from
some of the charged co-defendants. Smalls admitted selling drugs to two of these
co-defendants, admitted using one co-defendant to transport the drugs, and
acknowledged at sentencing that his only objection was to the determination that
he was a leader of the conspiracy as described in the PSI.
The undisputed statements of these co-defendants confirm that Smalls
exercised decision-making authority over the planning, strategy, pricing, purchase,
transport, and delivery operations of the extensive conspiracy. For example,
Smalls planned the cross-country purchase of drugs from his own supplier and
recruited and directed at least one person, Henry James, and possibly more, to
transport and deliver the drugs to various suppliers. Smalls facilitated the
installation of trap doors in the vehicles to support the work of the conspiracy.
Smalls told distributors how and when to pay for the drugs, and he advised
distributors on how to plan their movements to avoid police detection. The
4
undisputed facts show that Smalls took a larger share of the fruits of the
conspiracy, given the large quantity of cash that Smalls carried on his person and
stored in his residence and his numerous, expensive vehicles, as compared to the
$200 to $300 payments made to James for delivery of the drugs. Thus, Smalls
engaged in more than a buyer/seller relationship. Further, Smalls’ repeated
admission that he recruited, directed, and controlled James, and possibly one other
participant, is sufficient to support the leadership enhancement. See U.S.S.G. §
3B1.1, comment. (n. 2); Mandhai, 375 F.3d at 1248.1 Accordingly, we affirm.
AFFIRMED.
1
Contrary to Smalls’ contentions, United States v. Martinez, 584 F.3d 1022 (11th Cir.
2009), does not apply to this case. In Martinez, we held that the district court clearly erred in
applying the leadership-role enhancement because the district court’s decision was based on
“plainly disputed facts.” Martinez, 584 F.3d at 1029. We determined that the few undisputed
facts did not suggest that the defendant had any decision-making authority, that he recruited
persons into the conspiracy, or that he had control or authority over any co-conspirators. Id. at
1028-29. We thus concluded that the government had not sufficiently established facts to
support the application of the leadership-role enhancement. Id. at 1030. In contrast, as
described above, the undisputed facts presented by the government in this case, together with
Smalls’ own admissions, sufficiently support the conclusion that the district court did not err in
applying the leadership-role enhancement to Smalls’ guideline calculation.
5