           Case: 16-16774   Date Filed: 09/29/2017   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16774
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:16-cr-00109-GKS-GJK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                      versus

LAKISHA ABNEY,

                                                         Defendant-Appellant.

                       ________________________

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

                            (September 29, 2017)

Before ED CARNES, Chief Judge, HULL, and WILSON, Circuit Judges.


PER CURIAM:
              Case: 16-16774     Date Filed: 09/29/2017   Page: 2 of 12


      Lakisha Abney pleaded guilty to conspiracy to import cocaine into the

United States in violation of 21 U.S.C. §§ 952(a) and 963. After applying a 2-level

aggravating role enhancement, the district court sentenced her to 97 months in

prison. She contends that the district court erred in imposing that enhancement.

She also contends that her sentence is procedurally unreasonable in other ways and

that it is substantively unreasonable.

                                         I.

      In 2016 Abney and three other women took a Caribbean cruise. Another

person booked the cruise for all four of them, and they shared a cabin on the ship.

When the ship reached Jamaica, they disembarked and met a person who sold them

cocaine. Abney paid a “large stack” of money in exchange for more than six

kilograms of cocaine that was concealed in women’s undergarments. The women

then returned to the ship and stored the undergarments in their shared cabin.

      When the cruise ship returned to the United States, the women disembarked

from it wearing loose-fitting dresses to cover the undergarments containing the

concealed cocaine. During screenings and pat down searches, Customs and Border

Patrol Officers discovered the drugs. Special Agents from Homeland Security

Investigations interviewed the women, and they confessed to their criminal

conduct. Later each pleaded guilty to charges of conspiracy to import cocaine into

the United States.


                                          2
                Case: 16-16774       Date Filed: 09/29/2017       Page: 3 of 12


       Because the offense involved between 5 and 15 kilograms of cocaine,

Abney’s presentence investigation report assigned her a base offense level of 30

under United States Sentencing Guidelines § 2D1.1(c)(5) (Nov. 2015). The PSR

added a 2-level enhancement for her role in the offense, stating that she was “the

organizer of the drug trafficking organization.” It also applied a 3-level reduction

for her acceptance of responsibility, resulting in a total offense level of 29. With a

criminal history category of II, Abney’s guidelines range was 97 to 121 months

imprisonment.

       Through counsel, Abney objected to the application of the aggravating role

enhancement, arguing that she and her co-conspirators were equally culpable as

drug transporters. In the Addendum to the PSR, the probation office defended the

enhancement, asserting:

       The investigation revealed that three cooperating defendants provided
       testimony that Abney played an organizer or leadership role in the
       conspiracy. Abney assisted another individual in recruiting three
       individuals to go on the cruise to pick up the cocaine in Jamaica.
       Abney also coordinated the cocaine pickup by communicating with
       the person who sent them on the cruise . . . and with the people in
       Jamaica who ultimately provided the cocaine.

       At the sentence hearing, Abney’s counsel repeated her objection to the

aggravating role enhancement and explained Abney’s role in the conspiracy. 1 She


1
 Abney herself did not testify or make any statements to the judge about the historical facts
underlying the enhancement issue. The statements about them were made by her counsel, not
her. As a result, this case does not present the issue of whether the Brown doctrine applies to
                                                3
                Case: 16-16774        Date Filed: 09/29/2017       Page: 4 of 12


noted that Abney conceded that she handled the money for the transaction and that

she was supposed to be paid a “negligible amount” more than her co-conspirators.

But counsel stated that Abney denied that her co-conspirators’ involvement was

the result of her recruitment and asserted that they were friends before they all

agreed to go on the cruise. Abney’s position, as advanced by counsel, was that she

and the other women were targeted by another person who was the ringleader of

the conspiracy and who made the arrangements for the cruise. Counsel added that

Abney and her co-conspirators received directions for meeting the drug supplier in

Jamaica while they were together on the cruise ship, and the man who supplied the

drugs had boarded the boat and threatened their lives.

       The government asserted that the other co-conspirators had identified Abney

as the “organizer on the boat” who “kept everyone in line,” that she had direct

contact with the ringleader in America, and that she was trusted to handle the

money. Although the government referred to the “facts of this case” as ones the

court was “well aware of,” it did not identify the circumstances underlying the co-

conspirators’ inculpatory statements or submit any evidence to support its

assertions.



statements that a defendant makes in a sentence hearing. See United States v. Brown, 53 F.3d
312, 314 (1995) (“[A] statement by a defendant, if disbelieved by the jury, may be considered as
substantive evidence of the defendant’s guilty. . . . [W]hen a defendant chooses to testify, he runs
the risk that if disbelieved the jury might conclude the opposite of his testimony is true.”
(quotation marks omitted)).
                                                 4
              Case: 16-16774     Date Filed: 09/29/2017   Page: 5 of 12


      Based on “the information the Court ha[d] on all of the other three co-

conspirators,” the district court found that the PSR and the enhancement were

correct. It determined that Abney was subject to the recommended guidelines

range of 97 to 121 months in prison. It then sentenced her to 97 months

imprisonment, the low end of the guidelines range.

                                         II.

      Abney contends that the district court erred in applying the aggravating role

enhancement under U.S.S.G. § 3B1.1(c). We review for clear error a district

court’s determination that a defendant is subject to a § 3B1.1 role enhancement.

United States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009). Under that

standard, a district court’s finding is clearly erroneous “when although there is

evidence to support it, the reviewing court on the entire evidence is left with a

definite and firm conviction that a mistake has been committed.” United States v.

Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011) (quotation marks omitted).

      The district court’s “factual findings for purposes of sentencing may be

based on, among other things, evidence heard during trial, undisputed facts in the

PSR, or evidence presented during the sentenc[e] hearing.” United States v. Polar,

369 F.3d 1248, 1255 (11th Cir. 2004). “When a defendant challenges one of the

factual bases of his sentence, the government must prove the disputed fact by a

preponderance of the evidence.” United States v. Aguilar-Ibarra, 740 F.3d 587,


                                           5
              Case: 16-16774    Date Filed: 09/29/2017   Page: 6 of 12


592 (11th Cir. 2014). The district court does not have license to sentence a

defendant in the absence of sufficient evidence if she has properly objected to a

factual conclusion. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.

2005). When a court imposes a sentence enhancement without demanding that the

government present sufficient evidence to support a disputed, underlying fact, we

generally will vacate and remand. See Martinez, 584 F.3d at 1023 (vacating and

remanding because “[o]n the slender record presented, the district court clearly

erred in finding that [the defendant] was an organizer or leader under U.S.S.G.

§ 3B1.1(a)”); United States v. Hall, 349 F.3d 1320, 1325–26 (11th Cir. 2003)

(vacating and remanding because, in arguing for an abuse of trust enhancement,

the government failed to present evidence of a personal trust relationship between

the defendant pastor and any of his fraud victims).

      Abney contends that the district court erred when it applied the aggravating

role enhancement under § 3B1.1 because the government failed to meet its burden

of proof. We agree. Section 3B1.1(c) of the sentencing guidelines provides for a

2-level increase “[i]f the defendant was an organizer, leader, manager, or

supervisor in any criminal activity” that involved fewer than five participants or

was not “otherwise extensive” within the meaning of § 3B1.1(a) and (b).

U.S.S.G. § 3B1.1(c). The commentary to § 3B1.1 explains that to qualify for the

adjustment the “defendant must have been the organizer, leader, manager, or


                                          6
              Case: 16-16774     Date Filed: 09/29/2017    Page: 7 of 12


supervisor of one or more other participants.” Id. § 3B1.1 cmt. n.2 (emphasis

added). When the defendant merely “exercised management responsibility over

the property, assets, or activities of a criminal organization,” an upward departure

may be warranted, but a § 3B1.1 enhancement is not. Id.

      We have explained that § 3B1.1 requires the exercise of some authority in

the organization or the exertion of some degree of control, influence, or leadership

over other participants in the crime. Martinez, 584 F.3d at 1026 (“[T]here must be

evidence that the defendant exerted some control, influence or decision-making

authority over another participant in the criminal activity.”); see also United States

v. Glover, 179 F.3d 1300, 1303 (11th Cir. 1999) (vacating and remanding for

resentencing because even though the evidence showed that the defendant

“managed an asset (the cocaine) of the conspiracy,” there was no evidence that he

controlled a co-conspirator and there was no finding that he “was a manager of

people”). For instance, we have found that recruitment and instruction of co-

conspirators, in concert with other factors, shows the necessary degree of control,

influence, or leadership for a defendant to qualify for a § 3B1.1 role enhancement.

See, e.g., United States v. Caraballo, 595 F.3d 1214, 1232 (11th Cir. 2010)

(holding that the district court did not clearly err in applying a leadership

enhancement where the government presented evidence that defendant had, among




                                           7
              Case: 16-16774     Date Filed: 09/29/2017   Page: 8 of 12


other things, recruited another participant and given specific instructions on how to

commit the crime).

      We have also held that where no undisputed facts show how a defendant

organized or directed a conspiracy and the government presents no evidence of

decision-making authority, “merely distributing drugs and making arrangements

for the delivery and sale of drugs . . . is not enough to demonstrate a leadership

role.” Martinez, 584 F.3d at 1028 (finding U.S.S.G. § 3B1.1(a) did not apply).

And a defendant’s management of assets, standing alone, is not enough to support

an enhancement under § 3B1.1(c). Glover, 179 F.3d at 1302–03 (“[A] section

3B1.1 enhancement cannot be based solely on a finding that a defendant managed

the assets of a conspiracy. A finding involving just asset management may support

only an upward departure.”).

      Through counsel, Abney repeatedly denied having a leadership role in the

conspiracy. She challenged the enhancement and the assertions in the PSR that she

helped recruit her co-conspirators and coordinated the drug transaction, triggering

the government’s burden to prove the disputed facts by a preponderance of the

evidence. See Martinez, 584 F.3d at 1027 (“[O]nce a defendant objects to a fact

contained in the PS[R], the government bears the burden of proving that disputed

fact by a preponderance of the evidence.”). In response to Abney’s objections, the

government reasserted that the PSR and statements made by her co-conspirators


                                          8
              Case: 16-16774     Date Filed: 09/29/2017   Page: 9 of 12


showed that Abney was the “lead person on the ship” who “kept everyone in line.”

Those assertions were insufficient for two reasons.

       First, the government based its assertions (like the disputed conclusions in

the PSR) on the testimony of Abney’s co-conspirators given at their own sentence

hearings. We have held that evidence from the sentence hearing of another “may

not — without more — be used to fashion a defendant’s sentence if the defendant

objects.” United States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013)

(quotation marks omitted). And we have also explained that “where the defendant

has not had the opportunity to rebut the evidence or generally to cast doubt upon its

reliability, he must be afforded that opportunity.” Id. (quotation marks omitted).

In this case, if the government wished to rely on co-conspirators’ assertions about

their roles in the crime in relation to Abney’s, it should have presented that

evidence at Abney’s sentence hearing, giving her an opportunity to rebut it. It did

not.

       Second, in response to Abney’s objections, the government proffered only

the statements of its counsel. In the Washington decision, we held that “absent a

stipulation or agreement between the parties, an attorney’s factual assertions at a

sentenc[e] hearing do not constitute evidence that a district court can rely on.” Id.

The government argues its bare assertions were enough because, even though

Abney objected to the aggravating role increase and certain facts related to it, she


                                          9
             Case: 16-16774     Date Filed: 09/29/2017   Page: 10 of 12


did not object to the government’s decision to proceed by proffer. The

government’s argument misreads the Washington decision. In that case, the

defendant objected to the enhancement and factual assertions in the PSR and

“requested hard evidence and not verbal assurances of opposing counsel” as to the

number of victims. Id. At the sentence hearing, the defendant again objected to

the enhancement. Id. at 1360–61. The government responded, asserting the

victims totaled over 6,000; however, it “did not present evidence — no

spreadsheets, no documents, no witnesses — identifying” the number of victims.

Id. at 1361. We concluded that “the government failed to carry its burden, as it did

not introduce any evidence” to support the enhancement. Id. Along the same

lines, in this case the government’s bare assertions were not made in conjunction

with a stipulation or agreement. As a result, they were not sufficient to prove the

disputed facts.

      Once Abney challenged the aggravating role enhancement and the PSR’s

factual assertions that she helped recruit her co-conspirators and organized the drug

transaction, the government was required to prove the disputed facts by a

preponderance of the evidence. Its unsupported assertions at the sentence hearing

failed to meet that burden. And the evidence that was before the court, standing

alone, does not support a finding that Abney exercised a leadership or management

role over one or more of her co-conspirators. The factual basis in the plea


                                         10
               Case: 16-16774       Date Filed: 09/29/2017      Page: 11 of 12


agreements that each of the co-conspirators agreed was true stated: “All four

individuals were booked on the cruise together and stayed in the same cabin aboard

the ship. The four individuals were all from the Washington D.C./Maryland area.”

The factual basis says nothing about Abney making any of the arrangements for

the trip, recruiting anyone for the transaction, or managing any of the participants.

       Although the stipulated and undisputed facts do prove that Abney handled

the money and was supposed to receive a “negligible amount” more than her co-

conspirators as payment, those facts alone do not show that she exercised decision-

making authority or exerted any degree of control or influence over her co-

conspirators. And as our precedent makes clear, § 3B1.1 is concerned with a

defendant’s control over the participants — not the assets — of the conspiracy.

See Glover, 179 F.3d at 1302–03. For those reasons, we VACATE Abney’s

sentence and REMAND the case for resentencing. 2

       At resentencing, the government will have the opportunity to present

additional evidence in support of the claimed enhancement. Under 28 U.S.C.

§ 2106, circuit courts have “broad discretion to fashion an appropriate mandate on

remand after the vacatur of a sentence.” United States v. Martinez, 606 F.3d 1303,

1304 (11th Cir. 2010) (explaining that a reviewing panel may remand “for limited


       2
         Abney also contends that the sentence is procedurally unreasonable in other ways and is
substantively unreasonable. In light of the foregoing, we need not address those contentions.
See United States v. Mock, 523 F.3d 1299, 1304 n.2 (11th Cir. 2008).
                                              11
             Case: 16-16774    Date Filed: 09/29/2017   Page: 12 of 12


purposes, for broader purposes, or to permit further evidence to be presented on the

second round even when a party has been given an opportunity but fails to do so on

the first round”). We conclude that permitting the government to present evidence

on remand is “just under the circumstances” presented in this case. See 28 U.S.C.

§ 2106 (2012). If it does so, Abney must be given an opportunity to rebut that

evidence.




                                         12
