                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               April 28, 2006
                              No. 05-14860                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 04-00175-CR-1-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

BEN NYEMAH BADIO,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (April 28, 2006)

Before TJOFLAT, BIRCH, and MARCUS, Circuit Judges.

PER CURIAM:

     Ben Nyemah Badio, a/k/a Kawi Benito Badio (“Badio”), appeals his 78-
month sentence on one count of conspiring to file false income tax refund claims,

18 U.S.C. § 286, nine counts of filing false income tax refund claims, 18 U.S.C.

§ 287, nine counts of bank fraud, 18 U.S.C. § 1344, and three counts of money

laundering, 18 U.S.C. § 1957. Badio had used his tax preparation company, and

his brother, Elroy Badio (“Elroy”), who was employed by that company, to file 72

falsified tax returns, all of which illegitimately claimed large fuel tax credits. He

then used the returns to secure “Refund Anticipation Loans” from a bank. R1-1 at

2. In this way, Badio’s company made false refund claims for $1,309,457.00,

resulting in an actual loss to the Internal Revenue Service of $411,290.77. Both

Badio and Elroy were indicted for their roles in the offense and pled guilty.

      At sentencing, Elroy objected, inter alia, to the probation officer’s

recommendation that he be sentenced as a leader or organizer, and argued that

Elroy’s role in the offense was equivalent to his own and that, because he did not

recruit his ex-girlfriend as a participant in the offense, she should not be considered

in the sentencing calculation. R3 at 13-14. Badio’s counsel proferred evidence

that Elroy had “attended an H & R Block [tax preparation] school prior to the time

that this offense happened.” Id. at 14. The district court overruled Badio’s

objection, stating

      I think that [the aggravating role adjustment] is sustainable . . . [and]
      that it’s appropriate to enhance him two points for his role.

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             And I will tell you, Mr. Badio, you are getting a break. I feel
      real comfortable I could give you both [the sophisticated means
      enhancement and the aggravating role adjustment], but I will indicate
      that the role [adjustment] accounts for all that happened here.
             You did supervise your brother. The notion of role is that the
      scheme has gotten bigger, that it’s the kind of scheme you really
      couldn’t have done so well by yourself and it would have been hard
      for Mr. Badio to recruit into it all.
             And the notion also is you brought somebody into your
      criminal lair and you have gotten other people involved. And so all
      those things are true.

Id. at 47-48. The district court calculated Badio’s total criminal offense level as

22, and his criminal history category as IV, resulting in a Guidelines sentence

range of 63-78 months. Id. at 16, 49-50, 63. Although the district court

commented that “without the guidelines, I would give you ten years in prison, . . . a

lower sentence than I think might otherwise be called for,” it understood that Badio

had pled guilty with the expectation of a Guidelines sentence, and sentenced him to

a term of imprisonment for 78 months, followed by a total of five years of

supervised release. Id. at 64-66.

      Badio argues that the district court clearly erred in assessing a two level

aggravating role adjustment. Specifically, Badio argues that he was not an

organizer, leader, manager, or supervisor of another participant in the crime, as

required by the Guidelines. Further, he argues that the government failed to

sustain its burden of showing by a preponderance of the evidence that the



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adjustment was appropriate.

      “A district court’s upward adjustment of a defendant’s Guidelines offense

level due to his status as a leader or organizer 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). “[A] finding is clearly erroneous when although there is

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

definite and firm conviction that a mistake has been committed. . . . [However,

w]here there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985) (internal citation and

punctuation omitted).

      United States Sentencing Commission, Guidelines Manual, § 3B1.1(c) (Nov.

2004) directs the district court to increase a defendant’s offense level by two levels

if that defendant was either an “organizer, leader, manager, or supervisor,” or any

combination of those roles, in a criminal activity that involved less than five

participants and was not “otherwise extensive.” U.S.S.G. § 3B1.1(a), (c). See

United States v. Glover, 179 F.3d 1300, 1302 (11th Cir. 1999) (“a two-level

increase in a defendant’s base offense level . . . is proper only if [he] was the

organizer or leader of at least one other participant in the crime, asserting control



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or influence over at least that one participant”).

      In analyzing a defendant’s role, the district court should consider “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). See United States v. Perry, 340 F.3d 1216, 1217-18 (11th Cir. 2003) (per

curiam) (no clear error in imposing the aggravating role adjustment where the

defendant “(1) actively recruited two individuals . . . , (2) arranged one of those

recruited individuals to [participate in the offense], (3) directly paid at least one of

those individuals [for participating in the offense], and (4) was, in turn, paid for his

recruitment and supervision of individuals in that . . . conspiracy”). We have

specifically held “that a section 3B1.1 [adjustment] cannot be based solely on a

finding that a defendant managed the assets of a conspiracy.” Glover, 179 F.3d at

1303 (emphasis added).

      In this case, the only evidence that suggests that an aggravating role

adjustment would be inappropriate is the fact that Elroy was trained in tax

preparation. The evidence that suggests such an adjustment was appropriate



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includes the fact that: (1) Badio created the tax preparation company and retained

control over the company’s assets and accounts; (2) Badio recruited his brother to

assist him; (3) Badio gradually explained the scheme to his brother, who took his

directions from Badio; (4) Badio took the larger share of the proceeds of the

scheme; and (5) the scheme was larger because of the assistance Elroy provided to

Badio. Compare United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004)

(noting that “[n]othing more was required” to justify aggravating role adjustment

where defendant had “recruited [a participant] into the plot, prompted him to

[participate in the plot], and briefed him on the . . . plan”).

       Nothing in the record suggests a mistake was committed, and even if we

may have decided the question differently, that is not a sufficient basis to reverse.

Anderson, 470 U.S. at 573-74, 105 S. Ct. at 1511. The district court committed no

clear error, and we affirm.

       AFFIRMED




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