                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.

             William D. GLOVER, Sr., William D. Glover, Jr., et al., Defendants-Appellants.

                                                No. 95-2585.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               June 30, 1999.

Appeal from the United States District Court for the Middle District of Florida. (No. 94-155-CR-T-25B),
Henry Lee Adams, Jr., Judge.

Before EDMONDSON, COX and MARCUS, Circuit Judges.

        EDMONDSON, Circuit Judge:

        Four defendants appeal their convictions or sentences, or both, for various drug offenses. We affirm

all of the convictions and all of the sentences, except for defendant Mattos. We affirm Mattos's conviction;

but, because the district court misapplied the Sentencing Guidelines in enhancing Mattos's base offense level,

we vacate his sentence and remand for resentencing.

                                                Background

        This case is about a drug conspiracy involving four defendants: William Glover Sr., William Glover

Jr., Juan Mattos, and James Walsh. Defendants were charged and tried together in one consolidated action.

        At trial, the government sought to establish that Defendants were involved in a conspiracy to obtain

and sell cocaine: The government alleged that Mattos was the supplier of the drugs, Walsh was a broker, and

Glover Sr. and Glover Jr. were couriers, transporting drugs in conjunction with their business, Glover Auto

Transport, Inc. To prove its case, the government relied in part on recorded conversations involving Glover

Sr., Glover Jr., and an undercover agent, as well as conversations between Walsh and a government informant

and between Walsh and another undercover agent. During these conversations, Defendants discussed various
drug transactions. The jury found each Defendant guilty of conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. § 846.1

        After the verdicts, Mattos made a renewed motion for judgment of acquittal on the conspiracy charge.

The district court granted the motion. The government appealed that ruling, and we reversed the district

court's order and reinstated the jury's guilty verdict. See United States v. Mattos, 74 F.3d 1197 (11th

Cir.1996).

        Then, at Mattos's sentencing hearing, the government sought a two-level increase of Mattos's base

offense level because of his alleged aggravating role in the conspiracy, pursuant to U.S.S.G. § 3B1.1(c).

Mattos objected to the enhancement, arguing, among other things, that no evidence in the record supported

a finding that he had managed or supervised another participant in the criminal activity. But, the court

rejected Mattos's arguments and applied the enhancement. The court later decided not to depart upward

within Mattos's applicable guideline range and sentenced Mattos to 151 months' imprisonment.

                                                 Discussion

         On appeal, Defendants raise many arguments about their respective convictions or sentences or

both.2 Only one claim warrants discussion: Mattos's argument about his aggravating-role enhancement under

U.S.S.G. § 3B1.1. Mattos says that the court erred because U.S.S.G. § 3B1.1 requires proof that a defendant

managed or supervised another participant in the conspiracy before an offense-level enhancement may be




   1
     In addition, Glover Jr. was found guilty of two counts of possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and Walsh was found guilty of attempted possession of
cocaine with intent to distribute, in violation of 21 U.S.C. § 846.
   2
    Defendants challenge the district court's denial of their respective motions for severance. Glover Sr.,
Glover Jr., and Walsh challenge the temporary appearance of a recalcitrant government witness at trial.
Glover Sr. and Glover Jr. challenge the district court's denial of their joint motion for mistrial. Glover Sr.
and Mattos challenge the sufficiency of the evidence supporting their respective convictions. Mattos
challenges the court's evidentiary ruling about the admissibility of coconspirators' statements. Mattos and
Walsh challenge the district court's determination of the amount of cocaine attributed to them at
sentencing. All of these arguments lack merit and are not discussed further.

                                                      2
applied and because no such evidence exists in this case.3 We review the district court's findings of fact for

clear error and its application of the Sentencing Guidelines to the facts de novo. United States v. Salemi, 26

F.3d 1084, 1086 (11th Cir.1994).

        Section 3B1.1, "Aggravating Role," provides for a two-level increase in offense level "[i]f the

defendant was an organizer, leader, manager, or supervisor in any criminal activity" that involved five or

fewer participants and was not "otherwise extensive." U.S.S.G. § 3B1.1(c). The commentary to section

3B1.1 provides:

        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. An upward departure may be warranted,
        however, in the case of a defendant who did not organize, lead, manage, or supervise another
        participant, but who nevertheless exercised management responsibility over the property, assets, or
        activities of a criminal organization.

U.S.S.G. § 3B1.1, comment. (n.2).

         The note makes clear that a two-level increase in a defendant's base offense level under section

3B1.1(c) is proper only if a defendant was the organizer or leader of at least one other participant in the crime,

asserting control or influence over at least that one participant.4 To the extent that our words may have

previously indicated that a defendant's management of assets might alone serve as grounds for an increase

in base offense level,5 we now draw the line. We now squarely decide that a section 3B1.1 enhancement


   3
     We accept that Mattos preserved this issue for our review. At sentencing, Mattos argued "Walsh is
the manager over the Glovers.... [I]f Mr. Mattos is the alleged supplier to this organization, he's nothing
more than fulfilling the role of a broker for Walsh. He may be a member of the conspiracy as found, but
that doesn't make him a manager. That doesn't make him a supervisor."
   4
     The application note was specifically added by the Commission to clarify the guideline and to resolve
a split among the circuits about whether a defendant must manage or supervise other persons to qualify
for an enhancement under section 3B1.1. U.S.S.G.App. C., amend. 500 (Effective Nov. 1993).
   5
     Some of our decisions that may seem contrary to today's decision occurred before the effective date
of application note two. See, e.g., United States v. Carrillo, 888 F.2d 117, 118 (11th Cir.1989) ("There
was sufficient evidence regarding [the defendant's] management of the stash house, receipt of cocaine,
and distribution of various allotments of cocaine to others to support a finding that he was an 'organizer'
or a 'supervisor.' "). More recently, in United States v. Glinton, 154 F.3d 1245 (11th Cir.1998), we, while
not allowing an enhancement, wrote "to qualify for an enhancement [under section 3B1.1] a defendant

                                                        3
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.

        In this case, the enhancement was based solely on Mattos's control over cocaine. In the PSI, the

probation officer stated that the increase was warranted because Mattos "was a supplier of cocaine for the ...

organization, traveling to Columbia to obtain the drugs. [Mattos] maintained control of the drugs while

Walsh attempted to set up a buy at [Mattos's] home. Therefore, [Mattos] can be viewed as having

management responsibility over the property (drugs) during the course of this offense and a 2 level increase

is warranted." And at the sentencing hearing, the district court judge concluded, "[the government has argued

that Mattos] be found to have control of the assets of this organization, [and] I am going to go ahead and find




must have either been the organizer, leader, manager, or supervisor of one or more other participants, or
'nevertheless exercised management responsibility over the property, assets, or activities of a criminal
organization.' " Id. at 1260 (quoting U.S.S.G. § 3B1.1 comment. (n.2)).

                 Also, in United States v. Trout, 68 F.3d 1276 (11th Cir.1995), we, in a footnote and
        without detailing all the facts, upheld the district court's application of an enhancement to a
        defendant convicted of drug offenses. The fact which was material to the court's decision was
        that the defendant was "the chemist in charge of a methamphetamine laboratory[.]" Id. at 1279 n.
        2. The Trout panel does not explain what that phrase means; and it is unclear whether the panel
        meant that the defendant was "in charge of," that is, supervised, people at the lab or equipment in
        the lab or both. We think that the phrase, on its face, would encompass both management of
        people and management of things. But, given the lack of clarity about the facts, we have looked
        at the record before the court in Trout, not to contradict the court's opinion, but only to clarify the
        meaning of its words. See United States v. Rey, 811 F.2d 1453, 1457 n. 5 (11th Cir.1987) ("A
        court may take judicial notice of its own records and the records of inferior courts."). And, in
        applying the enhancement to Trout's base offense level, the district court was presented with
        evidence that Trout supervised another participant: The sentencing judge specifically said,
        "There's some indication [Trout] even supervised one of the really organizers and managers
        [Birchfield, a codefendant] during the manufacturing process[.]" In contrast, the present case
        involves no evidence that Mattos ever managed another participant, but involves an offense-level
        enhancement based on management of assets only.

                Considering the circumstances of the cases before the court in Glinton and Trout, we
        think the statements in those opinions are in no way binding. And neither of the defendants in
        those cases raised in their briefs—and the court did not need to decide directly—the issue
        presented by Mattos to us today: whether a district court may properly enhance a defendant's
        sentence under section 3B1.1 based only on a finding that the defendant managed the assets of a
        criminal organization.

                                                      4
that the cocaine does represent an asset of the organization and that it was under the control of Mr. Mattos

and allow the two-point aggravation to stand."

        While sufficient evidence exists to support a finding that Mattos managed an asset (the cocaine) of

the conspiracy, no evidence (as the government concedes) shows that Mattos exercised control over another

participant. And the district court made no finding that Mattos was a manager of people. The district court

consequently erred in enhancing Mattos's base offense level under section 3B1.1(c). Therefore, we must

vacate Mattos's sentence and remand for his resentencing.

        For these reasons, we AFFIRM Defendants' convictions and AFFIRM Defendants' sentences, except

for Mattos's sentence. We VACATE Mattos's sentence and REMAND for his resentencing.

        AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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