                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5245


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MOSHE DAYAN AITCH,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   Henry M. Herlong, Jr., Senior
District Judge. (7:08-cr-00211-HMH-1)


Submitted:    November 9, 2009              Decided:   November 19, 2009


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Guy J. Vitetta, Charleston, South Carolina, for Appellant. W.
Walter Wilkins, United States Attorney, David C. Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Moshe      Dayan       Aitch     was    indicted,        along       with     seven

others, on a number of counts arising out of his participation

in    a    fraudulent        check    cashing        scheme      in   Spartanburg,          South

Carolina.          Aitch      pled     guilty        to   possession      of       counterfeit

securities,        18    U.S.C.       §§     513(a)       and    2    (2006)       (Count    1);

obtaining money by false pretenses, 18 U.S.C. §§ 1344 and 2

(2006) (Count 3); and possession of identification of another

person, 18 U.S.C. § 1028A(a)(1) (2006) (Count 4).                              The district

court sentenced Aitch to a total term of 81 months imprisonment.

He appeals, arguing that the court erred in its determination

that Aitch was a leader or organizer of the underlying offense

and, therefore, subject to the four-level enhancement to his

base offense level.                  See United States Sentencing Guidelines

(USSG) § 3B1.1(a) (2007).

              The district court’s determination that a defendant is

a leader in the offense is a factual finding that is reviewed

for clear error.              United States v. Sayles, 296 F.3d 219, 224

(4th      Cir.    2002).         A    defendant        qualifies       for     a    four-level

enhancement if he “was an organizer or leader of a criminal

activity         that    involved       five     or       more    participants        or     was

otherwise extensive.”                USSG § 3B1.1(a).            Factors distinguishing

a leadership or organizational role from lesser roles include:

the       exercise      of   decision        making       authority,     the       nature     of

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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.       USSG § 3B1.1, comment. (n.4).                    “Leadership over only

one other participant is sufficient as long as there is some

control exercised.”           United States v. Rashwan, 328 F.3d 160, 166

(4th Cir. 2003).         Aitch does not contest that the counterfeiting

operation in this case involved five or more participants or was

otherwise extensive, but maintains that there was no evidence

that he actually supervised anyone in that operation.

              The district court’s determination that Aitch was the

leader in the offense was based on the statements of his co-

defendants, all of whom were check-cashers in the underlying

counterfeit      check    scheme,     and       the    testimony        of    co-defendant

Denise Maybin at his sentencing hearing.                       Maybin testified that

she received the forged checks from Aitch and, although Aitch

purported that he gave the proceeds of the fraudulent checks to

“the    man,”    she    had   never      seen    anyone        else    involved      in    the

scheme.       Maybin also stated that Aitch kept approximately 75

percent    of    the   proceeds     from    the       cashed     checks.        The    court

specifically found Maybin’s testimony was credible while Aitch’s

was    not.     Credibility       determinations           are    not     reviewable       on

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appeal.       United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir.

1995).     On this record, we find that the district court did not

clearly err in finding that Aitch should receive the leadership

role enhancement.

              Aitch    has   also   filed      a   motion     to   file   a   pro    se

supplemental brief in which he asserts that the district court’s

finding at sentencing as to the amount of loss constituted a

Sixth Amendment violation in light of United States v. Booker,

543    U.S.   220   (2005).     However,       under     an   advisory    guidelines

scheme, a district court does not violate the Sixth Amendment by

making     factual      findings      as    to     sentencing      factors     by    a

preponderance of the evidence as long as the fact-finding does

not enhance the sentence beyond the maximum term specified in

the substantive statute. See United States v. Morris, 429 F.3d

65, 72 (4th Cir. 2005) (holding that “Booker does not in the end

move any decision from judge to jury, or change the burden of

persuasion”).         Because the district court appropriately treated

the guidelines as advisory in sentencing Aitch, the enhancements

based on the court’s factual findings did not violate his Sixth

Amendment rights.

              Accordingly, we affirm Aitch’s sentence.                We grant his

motion to file a supplemental pro se brief, and we dispense with

oral     argument     because   the    facts       and   legal     contentions      are



                                           4
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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