                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-14131             MAY 2, 2012
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                              D.C. Docket No. 0:11-cr-60054-KMM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

versus

KEMAR CLARK-THOMAS,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

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

                                            (May 2, 2012)

Before BARKETT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Kemar Clark-Thomas appeals his 168-month sentence, imposed after he

pleaded guilty to one count of conspiring to possess with intent to distribute five

kilograms or more of a mixture containing cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and 846. After careful review of the parties’ briefs and

the record, we affirm.

                                          I.

      In late February 2011, a confidential informant arranged for Clark-Thomas

to meet an undercover agent, who was posing as a disgruntled drug trafficker

looking for help in robbing cocaine from a stash house. Clark-Thomas agreed to

assist with the robbery in exchange for half of the expected cocaine take, and

“indicated that he planned on utilizing two to four associates to assist in

committing the robbery.” Clark-Thomas then discussed the plan with a few

associates who agreed to participate in the robbery.

      The robbery plan was a setup, of course; and, shortly before the plan was to

be executed, Clark-Thomas was arrested. Clark-Thomas pleaded guilty to one

count of conspiring to possess with intent to distribute five kilograms or more of a

mixture containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and

846. As part of his plea, he signed a factual proffer stipulating the truth of the

facts above.

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      The district court found that Clark-Thomas was an “organizer, leader,

manager, or supervisor” of the conspiracy, and as a result added a two-level

enhancement to his sentencing guidelines range. U.S.S.G. § 3B1.1(c). With the

enhancement, Clark-Thomas’s sentencing range was 135 to 168 months, and the

district court imposed a sentence of 168 months. Clark-Thomas filed this appeal

of his sentence, in which he disputes the district court’s imposition of the U.S.S.G.

§ 3B1.1(c) enhancement.

                                         II.

      We review the district court’s application of the sentencing guidelines de

novo, United States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005), and we

review its factual determination concerning Clark-Thomas’s role in this offense

under the clear error standard, United States v. Rendon, 354 F.3d 1320, 1331 (11th

Cir. 2003). We will therefore disturb the district court’s imposition of this

enhancement only if, on the entire record, we are “left with the definite and firm

conviction that a mistake has been committed.” United States v. Robertson, 493

F.3d 1322, 1330 (11th Cir. 2007) (quotation marks omitted).

      At sentencing, to the extent that any fact bearing on a defendant’s role in an

offense is disputed, the government bears the burden of establishing that fact by a

preponderance of the evidence. See United States v. Pope, 461 F.3d 1331, 1335

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(11th Cir. 2006). A fact admitted as part of a guilty plea may be considered by the

district court at sentencing, even where the government presents no additional

evidence to support it. See United States v. Martinez, 584 F.3d 1022, 1027 (11th

Cir. 2009).

                                        III.

      Section 3B1.1(c) of the sentencing guidelines provides that, where a

defendant is an “organizer, leader, manager, or supervisor” over one to four co-

participants in a criminal activity, a two-level sentencing enhancement may apply.

U.S.S.G. § 3B1.1(c). On appeal, Clark-Thomas argues that the sentencing court

erred in two ways when it imposed the U.S.S.G. § 3B1.1(c) enhancement against

him. First, Clark-Thomas argues that the district court failed to consider some

factors that weighed against the finding that he was an “organizer/leader” of the

criminal activity. Second, Clark-Thomas argues that the court failed to make

specific findings as to whom he recruited into the robbery. Neither argument is

availing.

      Clark-Thomas first argues that the district court failed to consider some

factors that weighed against finding him to be an organizer or leader of the

criminal activity. He bases his argument on one of the guidelines’ application

notes for § 3B1.1, which lists seven factors that courts should consider in

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differentiating “a leadership and organizational role from one of mere management

or supervision.” Id. cmt. n.4. The distinction between being an “organizer” or

“leader” as opposed to a “manager” or “supervisor” is not critical in this case,

however. The district court enhanced Clark-Thomas’s sentence pursuant to

§ 3B1.1(c), a provision that permits the enhancement for any “organizer, leader,

manager, or supervisor.” Id. § 3B1.1(c). The accompanying commentary explains

that the “inclusiveness” of § 3B1.1(c) reflects the fact that, for smaller criminal

endeavors, “the distinction between organization and leadership, and that of

management or supervision, is of less significance.” Id. cmt. background. Thus,

the application note that Clark-Thomas invokes does not shed light on why it

would have been inappropriate for the district court to impose an enhancement

under U.S.S.G. § 3B1.1(c).

      Next, Clark-Thomas argues that the district court was required to enumerate

precisely whom Clark-Thomas recruited into the robbery plan when it imposed the

§ 3B1.1(c) enhancement. He is correct that the district court is generally required

to make fact findings, which facilitate meaningful appellate review. See United

States v. Alpert, 28 F.3d 1104, 1108 (11th Cir. 1994) (en banc). But we have

clearly stated that, “[i]n making the ultimate determination of the defendant’s role

in the offense, the sentencing judge has no duty to make any specific subsidiary

                                           5
factual findings.” United States v. Rodriguez De Varon, 175 F.3d 930, 939–40

(11th Cir. 1999) (en banc). Besides, even if Clark-Thomas were correct that the

sentencing court is required to make this subsidiary factual finding, it appears that

the sentencing court in fact did. At sentencing, the court stated that it relied on the

offense conduct described in the presentence investigation report to find that

Clark-Thomas recruited “Simon Samuels, Arthur Murphy, and Ebony Dunbar” for

the conspiracy. As a result, Clark-Thomas’s second argument fails.

                                         IV.

      Reviewing now the district court’s determination of Clark-Thomas’s role in

the conspiracy, we conclude that the district court did not clearly err in finding that

he was an “organizer, leader, manager, or supervisor” of the endeavor. As part of

his plea agreement, Clark-Thomas admitted to “indicat[ing] that he planned on

utilizing two to four associates to assist in committing the robbery.” He also

admitted that he discussed the plan with a few associates, and that those associates

agreed to participate in the robbery.

      In the stipulated factual proffer for his plea, Clark-Thomas admitted that he

told the undercover agent that “he commits robberies for a living and that he and

his crew would be successful in committing” the planned robbery. But at

sentencing, he argued that he was “just blowing smoke” when he made that

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statement, and testified that the statement was not factually true. However, aside

from disputing the interpretation of that single statement, Clark-Thomas raised no

other objection to the facts contained in his PSI, and the entirety of the undisputed

evidence supports the imposition of the enhancement. Thus, we cannot say that

the district court’s finding that Clark-Thomas recruited his co-participants for the

robbery is clearly erroneous. See United States v. Mandhai, 375 F.3d 1243, 1248

(11th Cir. 2004) (holding that a defendant’s decision to recruit another individual

and brief him on the details of a criminal plan was sufficient to support an

enhancement). We therefore affirm the sentence.

      AFFIRMED.




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