                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                JAN 21, 2009
                                No. 07-15869                  THOMAS K. KAHN
                          ________________________                CLERK


                    D. C. Docket No. 07-00036-CR-5-RS-001

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

JUSTIN JEROME SWAINE,

                                                             Defendant-Appellant.


                          ________________________

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

                               (January 21, 2009)

Before HULL, WILSON and HILL, Circuit Judges.

PER CURIAM:

      Justin Jerome Swaine appeals his convictions and 211-month sentences for

conspiracy to distribute more than 1,000 kilograms of marijuana and less than 500
grams of cocaine and possession with intent to distribute more than 50 kilograms

of marijuana. After review, we affirm.

                                  I. DISCUSSION

A.    Indictment and Continuance Motions

      A superseding indictment charged Swaine and four others (Carlfred James

Anderson, Jose Luis Jorge, Vernon Winston Kevin Henry, Christopher Alexander

Artley) with seven drug and firearm counts. Swaine was charged in two drug

counts (Counts I and VI) and a firearm count (Count VII): (1) conspiracy to

distribute and possess with intent to distribute more than 1,000 kilograms of

marijuana and 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(vii), and (b)(1)(B)(ii) and 846 (Count I); (2) possession with intent to

distribute more than 50 kilograms of marijuana, in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count VI); and (3) possession of

firearms in furtherance of Counts I and VI, in violation of 18 U.S.C.

§§ 924(c)(1)(A)(i) and 2 (Count VII).

      Before trial, the government filed a notice advising the court that, under

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), codefendant Henry

had to be tried separately from codefendants Swaine and Anderson because Henry

had made post-arrest statements implicating Swaine and Anderson that could not



                                          2
be redacted. However, the government stated, “There is no Bruton issue between

Swaine and Anderson because neither made a post-arrest statement. Accordingly,

they may be tried together.” The government stated that it preferred to try Swaine

and Anderson together for efficiency purposes.

      Swaine did not object to being tried jointly with Anderson or file a motion to

sever. In his stipulated motion to continue his trial, Swaine recognized, “Co-

Defendant Kevin Henry will be tried separately due to a Bruton issue, leaving

Defendants Swaine and Anderson to be tried together.” (Underline added).

      Ultimately, three of Swaine’s four codefendants–Jorge, Henry, and Artley–

pled guilty to all or part of the charges against them. Anderson pled guilty to

Count I in exchange for a dismissal of Count VI. Anderson proceeded to trial on

Count VII, along with Swaine on Counts I, VI, and VII. This appeal involves only

codefendant Swaine.

B.    Pre-trial Discussions and Opening Statements

      Before voir dire, Swaine’s counsel stated, in regard to Anderson, “there may

be a problem with some of the anticipated defense that may cause a spillover and

possible prejudice to my client on that count.” Swaine’s counsel referenced

potential problems with the introduction of Anderson’s plea agreement and

stipulation of facts if Anderson was not available for cross-examination and with



                                          3
jury confusion in hearing evidence that the drugs charged in Count VI were found

at Anderson’s home when Count VI had been dismissed as to Anderson.

Anderson’s counsel agreed not to reference Anderson’s plea agreement or

stipulation of facts until his defense case began. Swaine’s counsel concluded by

saying, “If at some point I feel that my client is going to be overly prejudiced, I

may move for a mistrial and move for a severance if that count and that issue

comes up . . . .” The district court responded, “We’ll take it a step at a time and see

how this plays out. Nobody wants to do this twice.” Notably, Anderson’s counsel

did not move for a severance at that time.

      During voir dire, the parties and the court discussed how to question the

prospective jurors as to whether Anderson’s guilty plea on Count I would bias

them as to Count VII against Anderson or as to any of pending charges against

Swaine. In drafting a question for the potential jurors, the district court wondered

aloud “whether any of them can figure out what the hell I’m talking about and

whether they can give a meaningful response.” The district court asked the

potential jurors if any of them believed that they could not fairly judge Anderson

or Swaine in light of Anderson’s guilty plea on Count I, and none of the potential

jurors responded.

      Before counsel gave their opening statements, the district court instructed



                                             4
the jury that counsel’s opening and closing statements were intended only to help

the jury understand the evidence and should not be considered as evidence in the

case or instructions on the law.

      During its opening statement, the government noted that Anderson pled

guilty to a drug conspiracy charge, but this did not mean that he was guilty of

anything else. The government further stated that Anderson’s guilty plea

“certainly doesn’t mean Mr. Swaine is guilty. That’s what you will determine

from the evidence.”

      During Anderson’s opening statement, his counsel conceded that Anderson

pled guilty to a drug conspiracy charge (Count I) and noted that the only issue for

the jury to decide as to Anderson was whether the firearms seized from his

residence were possessed in furtherance of that drug offense (Count VII).

Anderson’s counsel continued by saying, “In our society most people don’t accept

responsibility for what they do these days. They’ve got an excuse for why it

shouldn’t have happened, why it wasn’t their fault. I know that, and I dare say you

know that. But Mr. Anderson has accepted his responsibility for what he did

wrong.”

      Anderson’s counsel summarized Anderson’s story of being a law-abiding

citizen until he participated in the drug activity to which he pled guilty. He stated



                                           5
that Anderson legally purchased the two firearms seized from his vehicles four

years before the drug activity began. Anderson’s counsel told the jury, “It started,

by the evidence in this case, the middle of March of 2007, in which he agreed to

store marijuana in his house for someone else.” Anderson’s counsel said he was

paid half the rent in return for storing the marijuana. But Anderson’s counsel

insisted that the firearms were not in any way used in connection with the criminal

activity.

       After opening statements concluded, Swaine’s counsel asked to approach for

a sidebar conference. Swaine’s counsel stated to the court:

              As we talked in the previous pretrial, Mr. Anderson’s lawyer
       made a comment that he only stored the drugs in his house for
       someone else and that he was getting half the rent paid. I don’t
       believe – unless there’s a witness the government plans to call to that,
       I can’t cross-examine Mr. Anderson, and I can’t cross-examine Mr.
       Anderson’s lawyer. That is thrown out there to the prejudicial effect
       of my client, and I have no way to confront that.

              And it’s a concern that I had that has no bearing on the gun
       charge, but now there’s evidence or the suggestion to the jury that he
       was holding those drugs for somebody else. That’s a charge that he
       pled to, and that he was getting half of his rent paid. I don’t know if
       the government has a witness who can verify that, other than they’re
       going to use a proffer by Mr. Anderson, and that’s improper. And I
       can’t confront that or cross-examine that unless he testifies.

Anderson’s counsel stated that no one had been identified by name, and the

government commented that Anderson’s counsel was “very careful to not speak to



                                          6
any defendants’ names.” The government stated that it intended to present

evidence that people would call Swaine to order marijuana and Anderson would

deliver it. The district court stated, “I think we’re going to have to take it a step at

a time and see who is going to testify on these points.” Anderson’s counsel again

noted that he was careful not to reference Swaine, and the government commented,

“I thought it was a nice tapdance.” Swaine’s counsel responded, “I understand he

didn’t mention him by name, but the implication is clear.” The district court

resolved, “I don’t see where we can do anything with it now. Let’s just see how

we go.”

C.    Trial Evidence

      The trial evidence established the following. In January 2006, Robert

Bondurant was arrested in Texas while transporting two kilograms of cocaine and

257 pounds of marijuana. Bondurant testified that he was transporting the drugs to

Florida for Swaine. Bondurant said he was traveling with another woman named

Tunesheya who was transporting 142 pounds of marijuana for Swaine that was

hidden in a speaker box. Tunesheya dumped the box when she saw the police stop

Bondurant, and the police later recovered the box and marijuana.

      Bondurant testified that he, Swaine, and codefendant Jorge had been in the

marijuana business for six months and had transported 2,000 pounds of marijuana



                                            7
and some cocaine during that time. According to Bondurant, Swaine had taken

control of the operation because he had the money to exploit fully the Texas drug

supply connections. Swaine would fly to Texas to buy the drugs and either fly or

drive back to Florida separately. Based on information from Bondurant, the police

documented several flights by Swaine between Florida and Texas, hotel stays in

Texas, and several thousand dollars in rental car receipts.

      In February 2006, police stopped a rental truck driven by codefendant Artley

based on information provided by Bondurant. Artley consented to a search of the

cargo area of the truck, but did not have the key to the padlock. The police cut off

the lock, searched the cargo area, and found a backpack containing $91,360 behind

furniture. Police separately stopped a vehicle driven by Swaine. Police observed

small bits of compressed marijuana throughout the vehicle that was consistent with

a vehicle that had been used to transport marijuana. Swaine had a key to a padlock

that matched the lock cut from Artley’s rental truck.

      Codefendant Artley testified that Jorge introduced Artley to Swaine to see if

Artley would transport marijuana from Texas to Florida for $5,000 per trip. Artley

described each of the four trips he made for Swaine where he transported hidden

marijuana. Artley also testified that Swaine gave him ten pounds of marijuana on

credit, which Artley failed to pay for, and that he bought five pounds of marijuana



                                          8
from Jorge, who said he got the marijuana from Swaine.

      Codefendant Jorge testified that he bought marijuana from Swaine about 20

times in 2002 and 2003. Jorge and Bondurant made marijuana connections in

Texas, but let Swaine take over because he had the money to buy larger amounts.

Jorge testified that Swaine would buy hundreds of pounds of marijuana, along with

some cocaine, in Texas and have Bondurant or Artley drive it back to Florida.

After the police stopped Artley and Swaine, Swaine started paying suppliers to

transport the drugs to Florida. Jorge sold several kilograms of cocaine for Swaine.

Jorge testified that he also sold some marijuana for Swaine. Jorge said he had

received about 500 pounds of marijuana and owed Swaine between $70,000 and

$100,000 at the time of his arrest.

      Codefendant Henry testified that he initially began selling 15 to 20 pounds

of marijuana at a time to Swaine. In August 2005, however, Henry began selling

marijuana for Swaine. Henry received about 100 pounds every two weeks from

Swaine to sell and sold a total of 1,500 to 1,700 pounds for him. Henry had

trouble paying Swaine and owed him $80,000 to $150,000.

      After Henry’s apartment was burglarized, Henry moved to a house leased by

Swaine. Henry was arrested at the house after giving a girlfriend nine pounds of

marijuana that had been delivered by Anderson for Swaine. Police searched



                                         9
Henry’s house and recovered a firearm, another half-pound of marijuana, and

plastic tubs used for marijuana storage.

      Henry testified that codefendant Anderson, who was Swaine’s cousin, stored

furniture in the house. According to Henry, Anderson was around Swaine

constantly, knew of Swaine’s business, and sometimes delivered marijuana to

Henry for Swaine.

      On cross-examination, Alexander’s counsel questioned Henry about what he

told police about Alexander when he was arrested. Henry testified that he had

made some phone calls in search of marijuana and that Anderson had delivered to

him ten pounds of marijuana on June 20, 2007. Henry testified that the police later

questioned him about Anderson. Henry told them that Anderson was Swaine’s

cousin, that Henry knew Anderson’s girlfriend’s nickname, and that he did not

know where Anderson lived. Henry also testified that he told the police that it was

not the first time that Anderson had delivered marijuana to him.

      Anderson’s counsel then pointed out that none of the police officers

corroborated that testimony. Anderson’s counsel also led Henry to admit that he

did not mention Anderson when he was questioned by the police on May 4, 2007

about the people he had been involved with in the marijuana business. Anderson’s

counsel again asked Henry about what he told the police on June 20, 2007, as



                                           10
follows:

      Q.     [B]efore I finish, didn’t you say the following, on June 20th,
             that Anderson lived in the Killian (sic) area with a girl named
             Neci?
      A.     I said I didn’t know where he lived at. Only thing I knew, he
             stayed in the Killearn area. That was all I said.
      Q.     And that you thought that Anderson was possibly storing
             marijuana for Swaine, right?
      A.     Yes.
      Q.     Right?
      A.     Yes.
      Q.     And that Anderson probably had the marijuana nearby?
      A.     Exactly.

Anderson’s counsel continued to question Henry as to why he had not mentioned

to the police that Anderson had made previous marijuana deliveries to him. Henry

insisted that he did not say anything because he was not asked about it.

Anderson’s counsel also asked Henry why he told police in May 2007 that Swaine

would not give him any more marijuana to sell, and Henry said the police must

have misunderstood him.

      On July 13, 2007, the police executed multiple search warrants. The police

searched Swaine’s Tharpe Street car wash, carpet cleaning, and window tinting

business and recovered twelve pounds of marijuana, scales, and packaging

material. The police searched Swaine’s mother’s residence and recovered twenty

pounds of marijuana, blue plastic tubs with marijuana residue, scales, packaging

materials, four safes, and $6,000.

                                         11
      The police searched Anderson’s residence and recovered 144.3 pounds of

marijuana, most of which was wrapped in green plastic, multiple sets of scales,

packaging materials, and blue plastic tubs. The police also found loaded handguns

in each of the two vehicles in the garage and under the bed.

      The police searched Swaine’s residence and recovered $112,661, primarily

from a shoe box in a closet, a .22 pistol, multiple sets of drug ledgers, an ounce of

marijuana, six boxes of gallon storage bags, heat seal wrap, and a roll of green

plastic (which was similar to the wrapping found at Anderson’s residence).

D.    Closing Statements and Verdict

      During closing statements, Anderson’s counsel emphasized that Anderson

was a low-level participant in the conspiracy, that he had admitted his guilt as to

Count I, and that he purchased the firearms long before his involvement in the

conspiracy and did not use them in furtherance of the conspiracy. Anderson’s

counsel summarized the evidence against Anderson, in part, as follows:

             The government has proven that on or about the middle of
      March–I can actually pinpoint it, March 16th of 2007–a lease was
      entered into for the residence that Mr. Anderson wound up being in
      when he was arrested. And where did that leasing company come
      from? That leasing company was involved with another individual in
      this case, and you know who I’m talking about.
             And shortly after that new arrangement that Mr. Anderson
      entered into to live in this new location, Mr. Anderson started storing
      marijuana for a specific person. And he stored it from times it came
      in from the middle of March until the middle of July when he got

                                          12
      arrested.
             And you know from the evidence that that’s really what he did.
      Because not another person, when they spoke to the police, even
      referenced C. J. Anderson as being something in March, April, May.
      It wasn’t until June the 20th of 2007 when Mr. Anderson delivered ten
      pounds of marijuana for someone to Mr. Henry that Mr. Anderson’s
      involvement became clear.
             And that’s as the officers testified. And this is a point of
      contention here. As the officers testified, Mr. Henry believed,
      thought, it’s possible that Mr. Anderson was storing marijuana. That
      turned out to be true.

Swaine’s counsel did not object during or after Anderson’s counsel’s closing

statement that the remarks improperly referenced Swaine.

      The district court again instructed the jury that it must consider only the

evidence presented in the case and that the lawyers’ statements were not evidence.

The district court also instructed the jury that Anderson’s guilty plea was not

evidence of Swaine’s guilt.

      The jury found Swaine guilty of Counts I and VI and not guilty of Count

VII. As to Count I, the jury specifically found that Swaine conspired to distribute

or possess with intent to distribute fewer than 500 grams of cocaine and 1,000

kilograms or more of marijuana. As to Count VI, the jury specifically found that

Swaine distributed or possessed with the intent to distribute more than 50

kilograms of marijuana. The jury found Anderson not guilty of Count VII.

E.    Sentencing



                                          13
      The presentence investigation report (“PSI”) was prepared on November 5,

2007. The government objected to the PSI’s failure to apply a leadership-role

enhancement. On December 5, 2007, a revised PSI recommended a four-level

leadership-role enhancement, pursuant to U.S.S.G. § 3B1.1(a), and an amended

advisory guidelines range of 235 to 293 months’ imprisonment.

      The sentencing hearing was held on December 12, 2007. The district court

asked Swaine’s counsel if he had sufficient time to review the PSI with Swaine,

and counsel responded that he did. Swaine’s counsel stated that he had not

received the December 5, 2007 PSI addendum with the government’s objection to

the lack of a role enhancement until December 10, 2007. Counsel said that he had

reviewed the enhancement “briefly” with Swaine and that he could argue Swaine’s

objection to the enhancement. The government stated that it electronically filed its

objection to the PSI on November 16, 2007. Swaine’s counsel responded that he

did not get a copy of the government’s objection. The probation officer stated that

the PSI addendum was emailed to both parties on December 7, 2007.

      Swaine’s counsel later clarified,

      Judge, I’m not saying, for the record, that I’m prejudiced, Your
      Honor, because I think that the testimony at trial, I think, is what
      happened. I think my client’s position is that he didn’t exercise
      control and leadership over these people, but that many of them were
      independent. And sometimes they would coincide. But I’m not
      saying, Judge, that I–if I had additional time I would be able to file

                                          14
      more than what the facts state in the case. I guess that’s what I’m
      trying to say; I was just trying to note that that’s why I didn’t file any
      written objections to that.

      The district court found that “it was pretty clear that Mr. Swaine was the

person who pulled together this diverse cast of characters” and thus overruled

Swaine’s objection to the role enhancement. After sustaining Swaine’s objection

to the two-level firearm enhancement, the district court calculated Swaine’s

advisory guidelines range as 188 to 235 months’ imprisonment.

      The district court sentenced Swaine to concurrent sentences of 211 months’

imprisonment on Counts I and VI. The district court stated that it imposed a

sentence in the middle of the guideline range because of the lack of aggravating

and mitigating circumstances and that a 211-month sentence was sufficient.

                                 II. DISCUSSION

A.    Confrontation Clause

      Swaine argues that codefendant Anderson’s counsel made several improper

remarks during their joint trial that violated Swaine’s Sixth Amendment right to

confrontation. Swaine contends that Anderson’s counsel, in the course of

conducting Anderson’s defense, made several statements that implicated Swaine in

the drug conspiracy. Swaine argues that Anderson’s counsel bolstered his own

statements as “the facts” and “the truth” to the point that the statements were



                                          15
converted to testimony. Thus, Swaine contends that his confrontation rights were

violated because he was unable to cross-examine Anderson or Anderson’s

counsel.1

       This Court previously concluded in a similar context that counsel’s

argument to the jury did not trigger a violation of the Sixth Amendment

Confrontation Clause. In United States v. Hawkins, 661 F.2d 436, 454 (5th Cir.

Unit B Nov. 16, 1981), defendant George Rawls’s counsel said during closing

argument that he believed the evidence in the case showed Rawls was guilty of the

drug conspiracy charge against him, but not guilty of the other charges.2 Rawls’s

codefendant argued that counsel’s statements amounted to a confession by Rawls

that a conspiracy existed, which incriminated the other codefendants, and violated

the codefendants’ Confrontation Clause rights because Rawls did not testify and

could not be cross-examined. Id. This Court described the characterization of

counsel’s statement as a confession as “misleading” because “[c]ounsel did not


       1
          On appeal, the government construes Swaine’s initial brief to be arguing that Swaine
and Anderson had mutually antagonistic defenses that required the district court to sever their
trials or declare a mistrial. Swaine’s reply brief states that the government has misconstrued his
argument and reasserts his Confrontation Clause argument. Swaine likely takes this position
because he did not move for a severance or mistrial in the district court based on Anderson’s
counsel’s statements. In any event, we will address only the Confrontation Clause argument
raised by Swaine. To the extent Swaine raises any severance issues, we conclude they lack
merit.
       2
       The decisions of Unit B of the former Fifth Circuit are binding precedent. See Stein v.
Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

                                                16
state that Rawls admitted his guilt or the existence of a conspiracy, but instead only

indicated it was his belief the evidence was sufficient to establish Rawls’ guilt on

the second count.” Id. The Court said counsel’s statements were “perhaps

questionable,” but “did not trigger the Confrontation Clause of the Sixth

Amendment.” Id. at 454-455. Furthermore, this Court noted that the district court

instructed the jury that the statements, objections, and arguments made by the

lawyers in the case were not evidence. Id. at 455.

      As in Hawkins, we conclude that codefendant Anderson’s statements during

opening and closing argument that Anderson was storing marijuana for someone

else were not equivalent to testimony against Swaine that violated his

Confrontation Clause rights. The district court instructed the jury that Anderson

pled guilty to the drug conspiracy and that Anderson’s plea did not prove Swaine’s

guilt in any way. More importantly, the district court instructed the jury that

statements and arguments by counsel were not evidence. Like Hawkins,

Anderson’s counsel’s description of his statements as “the truth” or “the facts” may

have been improper for opening and closing arguments, but did not transform his

statements into testimony under the Confrontation Clause.

      As to Anderson’s counsel’s repetition of Henry’s statement to police that he

thought Anderson was storing marijuana for Swaine, this statement was made in



                                          17
the context of Anderson’s counsel’s vigorous cross-examination of Henry as to

inconsistencies between his testimony and prior statements to police. Plus, Henry

was available for cross-examination by Swaine.3 The impeachment of Henry

favored both Anderson and Swaine.

       Thus, we reject Swaine’s argument that Anderson’s counsel’s statements at

trial violated his Sixth Amendment confrontation rights and affirm his convictions.

B.     Swaine’s Sentences

       Swaine raises the following three challenges to his 211-month concurrent

sentences: (1) the district court procedurally erred when it did not sua sponte stop

the sentencing hearing so Swaine’s counsel could discuss the revised PSI and

leadership-role enhancement with him;4 (2) the district court clearly erred by

applying the four-level leadership-role enhancement under U.S.S.G. § 3B1.1(a);5


       3
          Although Anderson’s counsel questioned witnesses after Swaine’s counsel, Swaine’s
counsel could have at least requested recross-examination of Henry. The government questioned
Henry on redirect, which gave Swaine a chance to recross-examine Henry. When asked by the
district court if Henry could be excused, however, Swaine’s counsel said, “We don’t need him.”
       4
         We review sentences under a deferential abuse-of-discretion standard in which we
consider (1) whether the district court committed any significant procedural error at sentencing
and (2) whether the ultimate sentence imposed is substantively reasonable in light of the totality
of the circumstances. See United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir. 2008).
“[T]he party who challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in section 3553(a).” United States
v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
       5
         This Court reviews a defendant’s role under U.S.S.G. § 3B1.1 for clear error. United
States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). “For a factual finding to be clearly
erroneous, this court, after reviewing all of the evidence, must be left with a definite and firm

                                                 18
and (3) his sentences were substantively unreasonable because they were greater

than those of his codefendants.

       1.     Adequate Consultation with Counsel

       We reject Swaine’s argument that the sentencing court committed

procedural error by not continuing the sentencing hearing sua sponte so Swaine’s

counsel could discuss the leadership-role enhancement with Swaine. The district

court asked Swaine’s counsel if he had sufficient time to review the revised PSI

with Swaine, and counsel said he had. Swaine’s counsel advised the court that he

had not seen the revised PSI until two days before sentencing, but said he had

reviewed the role enhancement “briefly” with Swaine and was ready to argue

Swaine’s objection to the enhancement. Neither Swaine nor his counsel asked the

district court for more time to discuss the role enhancement.

       Swaine argues that he was prejudiced by the district court’s failure to allow

him more time to discuss the role enhancement with his counsel, but does not

explain how. In fact, Swaine’s counsel explicitly stated otherwise at sentencing.

Swaine’s counsel told the court, “I’m not saying, for the record, that I’m prejudiced

. . . . I’m not saying, Judge, that I–if I had additional time I would be able to file

more than what the facts state in the case. . . . I was just trying to note that that’s


conviction that a mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d
1134, 1137 (11th Cir. 2004) (quotation marks omitted).

                                             19
why I didn’t file any written objections to that.” Swaine’s counsel thoroughly

argued his objection to the role enhancement at sentencing. Swaine has not

identified any arguments that his counsel did not make that could have been

discovered if he had more time to discuss the leadership-role enhancement. Thus,

the district court did not procedurally err by failing to continue the sentencing

hearing sua sponte so counsel could have further discussions with Swaine.

B.    Leadership-Role Enhancement

      Under U.S.S.G. § 3B1.1(a), a four-level enhancement applies where “the

defendant was an organizer or leader of a criminal activity that involved five or

more participants.” U.S.S.G. § 3B1.1(a). In distinguishing a leadership 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.

Id. § 3B1.1 cmt. n.4.

      The evidence at trial amply supported the leadership-role enhancement.

There was evidence that Swaine: (1) was the prominent financier of the marijuana

and cocaine conspiracy and made the decisions as to who would transport the

drugs and how; (2) hired multiple people to transport hundreds of pounds of drugs

                                          20
and thousands of dollars obtained from selling the drugs between Texas and

Florida; (3) traveled separately from the couriers between Texas and Florida; (4)

loaned drugs on credit to distributors who sold them for him; and (5) hired multiple

people to store and deliver drugs for him. Furthermore, as shown by the amount of

assets seized from Swaine, he kept the largest share of the proceeds for himself.

Based on this evidence, the district court did not clearly err in applying the four-

level leadership-role enhancement.6 United States v. Suarez, 313 F.3d 1287, 1294

(11th Cir. 2002).

C.     Substantive Reasonableness

       We also reject Swaine’s argument that his 211-month sentences were

substantively unreasonable because his codefendants received lesser sentences than

he did. In imposing a reasonable sentence, the district court is required to consider

the factors in 18 U.S.C. § 3553(a), which includes “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Swaine’s codefendants

received imprisonment terms of 23 months (Artley), 41 months (Anderson), 90

       6
        We reject Swaine’s argument that the district court did not have authority to apply the
leadership-role enhancement because the jury did not find that Swaine was a leader. A district
court has authority to apply an advisory guidelines sentencing enhancement so long as the
enhanced sentence does not exceed the statutory maximum for the offenses of conviction.
United States v. Hunt, 459 F.3d 1180, 1182 (11th Cir. 2006). Swaine’s 211-month sentences
were below the statutory maximum of life imprisonment for Count I, 21 U.S.C. § 841(b)(1)(A),
and 20 years’ imprisonment for Count VI, 21 U.S.C. § 841(b)(1)(C).

                                               21
months (Jorge), and 130 months (Henry).

      Here, Swaine was not similarly situated with his codefendants, and the

disparities between Swaine’s sentences and those of his codefendants were not

unwarranted for several reasons. First, the codefendants were not all convicted of

the same offenses. Second, several of the codefendants received substantial

assistance reductions for their cooperation with the government. Third, because

there was abundant evidence that Swaine was the leader of the conspiracy, Swaine

received a four-level role enhancement, which increased his advisory guidelines

range from 121 to 151 months to 188 to 235 months. Finally, Swaine’s

codefendants pled guilty to some or all of the charges against them. Although

Swaine contends that he was punished for exercising his constitutional right to a

trial, the fact is that his codefendants were rewarded for their acceptance of

responsibility.

      Thus, because Swaine was not similarly situated with his codefendants who

received lesser sentences, the district court’s sentence did not conflict with the §

3553(a) factor of avoiding unwarranted sentence disparities. Furthermore, the

district court imposed a sentence in the middle of the guidelines range due to the

lack of aggravating or mitigating factors and stated that it was sufficient, but not

greater than necessary. Swaine has failed to carry his burden to show that his 211-



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month sentences were substantively unreasonable.

                             III. CONCLUSION

      Based on the reasons above, we affirm Swaine’s convictions and his 211-

month sentences.

      AFFIRMED.




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