                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4633


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOSHUA KENNETH HARTUNG,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:17-cr-00219-FDW-DCK-3)


Submitted: June 27, 2019                                          Decided: July 30, 2019


Before THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sandra Barrett, Hendersonville, North Carolina, for Appellant. William T. Stetzer,
United States Attorney, William T. Bozin, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Joshua Kenneth Hartung pled guilty, without a written plea agreement, to

conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), 846 (2012). Hartung was convicted for his participation in a

marijuana trafficking conspiracy that used commercial airlines to transport high-grade

marijuana from California to Charlotte, North Carolina. On appeal, Hartung argues that

the district court erred by applying a sentencing enhancement, pursuant to U.S.

Sentencing Guidelines Manual § 3B1.1(a) (2016), for Hartung’s role as a leader or

organizer within the drug trafficking conspiracy. * We affirm.

      We review criminal sentences for reasonableness using an abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence based on an

improperly calculated Sentencing Guidelines range is procedurally unreasonable. United

States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012). “In reviewing whether a sentencing

court properly calculated the Guidelines range, we review the court’s factual findings for

clear error and its legal conclusions de novo.” United States v. Shephard, 892 F.3d 666,

670 (4th Cir. 2018). “We will conclude that the ruling of the district court is clearly

erroneous only when, after reviewing all the evidence, we are left with the definite and




      *
        Hartung has also filed a motion to file a pro se supplemental brief. Because
Hartung is represented by counsel and this appeal is not filed pursuant to Anders v.
California, 386 U.S. 738 (1967), that motion is denied. See United States v. Penniegraft,
641 F.3d 566, 569 n.1 (4th Cir. 2011).


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firm conviction that a mistake has been committed.” United States v. Steffen, 741 F.3d

411, 415 (4th Cir. 2013) (internal quotation marks omitted).

      The Government bears the burden of demonstrating that a sentencing enhancement

should be applied, and the sentencing court must find that the enhancement applies by a

preponderance of the evidence. Id. at 414. Under the Guidelines, the sentencing court

should apply a four-level enhancement in offense level “[i]f the defendant was an

organizer or leader of a criminal activity that involved five or more participants or was

otherwise extensive.”       USSG § 3B1.1(a).     In determining whether to apply an

enhancement for a defendant’s leadership role, a court should consider: the defendant’s

exercise of decision-making authority, the nature of his participation in the offense,

recruitment of others, any claimed right to a larger share of profits, the degree of

participation in planning the offense, the nature and scope of the offense, and the degree

of control and authority exercised over others. United States v. Agyekum, 846 F.3d 744,

752 (4th Cir. 2017) (citing USSG § 3B1.1 cmt. n.4). We have previously explained that

the role enhancement applies only if “the defendant managed or supervised participants,

as opposed to property, in the criminal enterprise.” Steffen, 741 F.3d at 415 (internal

quotation marks omitted).

      In support of the enhancement, the Government provided evidence that Hartung

helped organize the conspiracy by connecting the conspiracy’s leader with a marijuana

supplier in California and by using Hartung’s previous work experience as an airport

employee to instruct the other members of the conspiracy how to avoid detection when

flying with marijuana or large amounts of money. The Government further presented

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evidence that Hartung personally directed at least two other members of the conspiracy.

We conclude that the district court did not err by finding that Hartung qualified for a

four-level enhancement based on his role as an organizer in the conspiracy.

      Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                              AFFIRMED




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