           Case: 14-10179   Date Filed: 09/05/2014   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10179
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cr-20627-JIC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus

CORNELIUS OFFORD,
a.k.a. Head,

                                                         Defendant-Appellant.

                      ________________________

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

                            (September 5, 2014)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Cornelius Offord appeals his total 27-month sentence

for conspiracy to utter counterfeit United States obligations and uttering counterfeit

United States obligations, in violation of 18 U.S.C. §§ 371, 472. On appeal,

Offord argues that the district court improperly applied a two-level aggravating-

role increase under U.S.S.G. § 3B1.1(c) because the government failed to prove

facts to support it. After review, we affirm.

                           I. STANDARD OF REVIEW

      We review for clear error the district court’s findings of fact, as well as the

district court’s determination that a defendant is subject to an aggravating-role

increase under § 3B1.1(c). United States v. Jiminez, 224 F.3d 1243, 1250-51

(11th Cir. 2000); United States v. Glover, 179 F.3d 1300, 1302 (11th Cir. 1999).

Clear error review is deferential, and “we will not disturb a district court’s findings

unless we are left with a definite and firm conviction that a mistake has been

committed.” United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010)

(quotation marks omitted). The district court’s “choice between two permissible

views of the evidence” as to the defendant’s role in the offense will rarely

constitute clear error “[s]o long as the basis of the trial court’s decision is

supported by the record and does not involve a misapplication of a rule of law.”

United States v. Stanley, 739 F.3d 633, 653 (11th Cir.), cert. denied sub nom.,




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Harris v. United States, 134 S. Ct. 2317 (2014) (quotation marks omitted)

(involving a denial of a minor-role reduction under U.S.S.G. § 3B1.2).

        II. GENERAL PRINCIPLES FOR § 3B1.1 ROLE INCREASE

      Under § 3B1.1, a defendant’s offense level is increased by four levels if he

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

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). If the defendant

was a “manager or supervisor (but not an organizer or leader)” then the increase is

three levels. Id. § 3B1.1(b).

      However, “[i]f the defendant was an organizer, leader, manager, or

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

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

increase is two levels. Id. § 3B1.1(c). A defendant’s assertion of control over only

one other participant is sufficient to sustain a § 3B1.1(c) two-level increase.

Id. § 3B1.1, cmt. n.2; Glover, 179 F.3d at 1302.

      Factors considered in assessing a defendant’s role include “the exercise of

decision making authority, the nature of the 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, cmt. n.4. These factors are


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“merely considerations for the sentencing judge,” and need not all be present.

United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (quotation marks

omitted).

      At a minimum, to impose an aggravating-role increase, “there must be

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

authority over another participant in the criminal activity.” Id.; U.S.S.G. § 3B1.1,

cmt. n.2. The government has the burden to prove the defendant’s aggravating role

by a preponderance of the evidence. Martinez, 584 F.3d at 1026-27.

                             III. OFFORD’S ROLE

      Here, in Offord’s sentencing, the district court did not clearly err in applying

a two-level role increase pursuant to § 3B1.1(c). According to undisputed facts in

his presentence investigation report (“PSI”), Offord and two codefendants,

Terricka Randolph and Gina Josaphat, were involved in a scheme to use

counterfeit Federal Reserve Notes (“FRNs”) to purchase items at Target stores,

which they then would return to different Target stores for genuine U.S. currency.

During the investigation, codefendant Josaphat gave a sworn statement that Offord

recruited her into the counterfeiting scheme, gave her counterfeit FRNs, and

instructed her on how to use them at Target stores to obtain U.S. currency.

Codefendant Josaphat also said that, when she bought $1,000 worth of Target

items, Defendant Offord gave her $300 in genuine currency as payment.


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      At the sentencing hearing, United States Secret Service Agent Earl

Kornickey testified that, as part of an earlier counterfeiting investigation of

Defendant Offord, he interviewed Randolph, and she admitted that Offord

recruited her into that counterfeiting scheme because he believed that women were

less likely to get caught. Randolph also told Agent Kornickey that Offord taught

her how to commit the counterfeiting scheme. Agent Kornickey confirmed that,

when he interviewed Josaphat as part of the instant investigation, she also said that

Offord recruited her to participate in a counterfeiting scheme and explained the

scheme to her.

      Given the indicia of reliability, the district court properly relied upon Agent

Kornickey’s hearsay testimony about codefendants Randolph’s and Josaphat’s

statements. See United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005).

Specifically, Randolph’s and Josaphat’s statements to Agent Kornickey were

consistent with each other and with the undisputed facts in the PSI. Further, Agent

Kornickey was subject to cross-examination at the sentencing hearing.

      Although at sentencing Offord’s counsel argued that Randolph and Josaphat

were the ones who first approached Offord about the counterfeiting scheme,

Offord presented no evidence to support this claim. An attorney’s factual

assertions, alone, do not constitute evidence upon which a sentencing court can

rely. See United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013).


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Accordingly, the district court did not commit clear error when it credited Agent

Kornickey’s unrebutted testimony.

      In short, the government’s unrebutted evidence showed that Defendant

Offord: (1) approached his codefendants and invited them to become involved in a

counterfeiting scheme; (2) provided them with the counterfeit obligations and

taught them how to perform the scheme; and (3) kept the lion’s share of the

proceeds for himself after his codefendants completed the purchases and returns at

Target stores. Further, Defendant Offord’s recruitment and instruction

demonstrated the necessary degree of control, influence, or decision-making

authority over Randolph and Josaphat necessary to qualify for an aggravating-role

increase pursuant to § 3B1.1. See, e.g., United States v. Caraballo, 595 F.3d 1214,

1231-32 (11th Cir. 2010) (affirming application of a four-level role increase where

the defendant, among other things, recruited another participant and gave

instructions on how to commit the drug-smuggling crime); United States v.

Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (affirming the application of a four-

level role increase where the defendant recruited and instructed others in an

immigration-fraud conspiracy); United States v. Mandhai, 375 F.3d 1243, 1248

(11th Cir. 2004) (affirming application of a two-level role increase where the

defendant recruited another participant into a terrorism plot, prompted him to

purchase weapons, and briefed him on a bombing plan).


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      For these reasons, the district court did not err in applying U.S.S.G.

§ 3B1.1(c)’s two-level aggravating-role increase. Accordingly, we affirm Offord’s

27-month sentence.

      AFFIRMED.




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