                                                      [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT          FILED
                                              U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                        OCTOBER 21, 2010
                             No. 10-11610                  JOHN LEY
                         Non-Argument Calendar              CLERK
                       ________________________

                  D.C. Docket No. 0:09-cr-60245-WPD-2



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

LAZARO RIVERAS,

                                                     Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 21, 2010)

Before BARKETT, HULL and HILL, Circuit Judges.


PER CURIAM:
      Lazaro Riveras appeals his 235-month sentence for conspiracy to possess

with intent to distribute five or more kilograms of cocaine, in violation of 21

U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). On appeal, Riveras raises two arguments.

First, he argues that the district court clearly erred in applying a three-level

managerial-role enhancement, per U.S.S.G. § 3B1.1(b), upon finding that Riveras

was a manager or supervisor. Second, Riveras agues that his 235-month sentence

was substantively unreasonable because it resulted in an unwarranted sentencing

disparity as compared to the sentences received by his codefendants.

                                           I.

      When reviewing a sentence, we must first determine that the “district court

committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S. 38,

51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review the district court’s

application of the Guidelines de novo and its factual findings for clear error.

United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005). “A district court’s

upward adjustment of a defendant’s Guidelines offense level . . . 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


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aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226

(11th Cir. 2003). The government meets this burden “by presenting reliable and

specific evidence.” United States v. Lawrence, 47 F.3d 1559, 1567 (11th Cir.

1995). The district court “may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.”

U.S.S.G. § 6A1.3(a).

      Under § 3B1.1(b), a three-level enhancement is appropriate where “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.”

U.S.S.G. § 3B1.1(b). Factors relevant to whether a managerial responsibility

enhancement is applicable include

      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). To qualify for an enhancement under

§ 3B1.1(b), the defendant need only manage or supervise one other participant.

See U.S.S.G. § 3B1.1 comment. (n.2).

      Riveras contends that the district court clearly erred in imposing a three-
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level enhancement pursuant to USSG § 3B1.1 because its finding that he played a

managerial or supervisory role in the offense was based upon contested facts not

set forth in the PSI, which the government failed to prove by a preponderance of

the evidence.

       This is not so. After defense counsel objected to the government’s reliance

on facts not set forth in the PSI as a basis for the enhancement, the district court

expressly disavowed an intention to “rely upon any testimony that wasn’t in the

PSI that you didn’t have a chance to cross examine that you have objected to.”

The district court’s subsequent ruling on the role enhancement reveals that it

adhered to this decision with one exception,1 and that, when defense counsel

called this to the court’s attention, the court immediately offered to “vacate the

sentence, reset the sentencing hearing, start anew, [Riveras] can make [his]

objections, [the prosecutor] can bring in whatever additional testimony he may or

may not want to bring in, and we can start all over again in the future.” At that

point, defense counsel and Riveras conducted a private conversation, after which

counsel announced that “Mr. Riveras doesn’t want to do that.”

       Under these circumstances, Riveras is not entitled to any relief. Any



       1
        The district court relied in part on a tape recording in which Riveras told an undercover
agent that they should kidnap and hold for ransom certain people.

                                                4
objection he may have had to the tape recording was waived by his affirmative

rejection of the district court’s offer to cure the defect in sentencing by vacating

and resetting the sentencing. Riveras cannot now profit from the error he so

invited. See United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997). The

invited error doctrine precludes reversal. See United States v. Silvestri, 409 F.3d

1311, 1327-28 (11th Cir. 2005).

      Furthermore, even if Riveras did not waive the objection, the alleged error

was harmless. At the change-of -plea hearing, Riveras explicitly admitted that he

told the undercover agent that “they planned on stealing the cocaine and kidnaping

the guards to the stash house to secure the payment of ransom money for their

release.” The same allegation was recited in the PSI and Riveras did not contest

that allegation in his PSI objections. Riveras’ admissions relieved the government

of any obligation to produce evidentiary support for the allegation and provided an

independent and reliable basis for the district court to conclude that he bore

responsibility. See United States v. Sheldon, 400 F.3d 1325, 1330 (11th Cir. 2005).

Accordingly, any procedural error resulting from the court’s reliance on the tape

recording was harmless.

      The district court’s application of a three-level aggravating-role

enhancement, per § 3B1.1(b), was supported by the record, which established that


                                           5
Riveras was a manager or supervisor of criminal activity that involved five or

more participants. We shall affirm as to this issue.

                                         II.

      We review the sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Reasonableness

review is “deferential,” and “the party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable.” Id. at 788. If we

conclude that the district court made no procedural errors, we “then consider the

substantive reasonableness of the sentence imposed.” Gall, 552 U.S. at 51, 128

S.Ct. at 597. We will remand for resentencing only “if we are left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted).

      The § 3553(a) factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need for the

sentence (A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense, (B) to afford adequate

deterrence to criminal conduct, (C) to protect the public from further crimes of the


                                          6
defendant, and (D) to provide the defendant with needed educational or vocational

training or medical care; (3) the kinds of sentences available; (4) the Sentencing

Guidelines range; (5) pertinent policy statements of the Sentencing Commission;

(6) the need to avoid unwarranted sentencing disparities; and (7) the need to

provide restitution to victims. See 18 U.S.C. § 3553(a). As to the sixth factor,

there cannot be an unwarranted sentencing disparity between defendants who are

not similarly situated. United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir.

2009).

      Riveras’ sentence is not substantively unreasonable because he was not

similarly situated to his co-defendants. As the district court observed in

addressing Riveras’ objections to the PSI regarding the applicable advisory

guideline range, one of his co-defendants was less culpable than he, and the other

provided assistance to the government. Nor was Riveras similarly situated to the

remaining co-defendants because, unlike them, he held a supervisory position in

the criminal enterprise.

      Therefore, Riveras was not similarly situated to his co-defendants and the

resulting disparity between his 235-month sentence and theirs was not

substantively unreasonable. Accordingly, we shall affirm as to this issue.

                                        III.


                                          7
      Based on our review of the record and the parties’ briefs, we affirm Riveras’

sentence.

      AFFIRMED.




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