           Case: 12-10252   Date Filed: 03/25/2013   Page: 1 of 5

                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-10252
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 5:11-cr-00023-RS-1

UNITED STATES OF AMERICA,

                     Plaintiff-Appellee,

versus

RUFINO ROBELO-GALO,


                     Defendant-Appellant.



                      ________________________

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

                            (March 25, 2013)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Rufino Robelo-Galo appeals his 354-month sentence, imposed after he

pleaded guilty to one count of conspiracy to distribute and possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and

846 (Count 1), and one count of possessing a firearm in a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 8). The district court applied a

four-level enhancement to Robelo-Galo’s sentence under U.S.S.G. § 3B1.1(a) for

acting as an organizer or leader of a criminal activity. Robelo-Galo argues on

appeal that the district court erred in applying the leadership role enhancement

because the undisputed facts in the pre-sentence investigation report (PSI) do not

demonstrate that he exercised decision-making authority over other co-

conspirators, or that he claimed a right to a larger share of the fruits of the crime.

Upon review of the record and consideration of the parties’ briefs, we affirm.

      “A defendant’s role as an organizer or leader is a factual finding that we

review for clear error to determine” whether the enhancement was properly

applied. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005) (per

curiam). Where a fact pattern gives rise to two reasonable but different

constructions, the district court’s choice between them cannot be clearly erroneous.

See United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir.), cert. denied, 133

S. Ct. 629 (2012). Moreover, a failure to object to allegations of fact in a PSI

admits those facts for sentencing purposes, and a district court may base its

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findings of fact on these undisputed statements. See United States v. Bennett, 472

F.3d 825, 832–834 (11th Cir. 2006) (per curiam).

      Under the Guidelines, a defendant’s offense level is increased by four levels

“[i]f the defendant 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). The

defendant must have acted as an organizer or leader “of one or more other

participants” in order to qualify for the enhancement. U.S.S.G. § 3B1.1 cmt. n.2.

The commentary to § 3B1.1 sets forth the factors for the district court to consider

“[i]n distinguishing a leadership and organizational role from one of mere

management or supervision” as follows:

      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 cmt. n.4. The government must have proved the existence of a

leadership role by a preponderance of the evidence. See United States v. Alred,

144 F.3d 1405, 1421 (11th Cir. 1998). However, we review the district court’s

application of the facts to the Guideline factors deferentially. See Ramirez, 426

F.3d at 1355.

      Here, the district court did not commit clear error by applying the leadership

role enhancement to Robelo-Galo’s Guideline calculation. Robelo-Galo asserts
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that none of the co-conspirators’ statements or recorded calls indicated that he

directed their activities or exerted control over other participants. He maintains

that orchestrating drug shipments or acting as a supplier does not prove leadership,

“and can just as easily indicate a subordinate role.” Robelo-Galo further contends

that, at most, he was a manager or supervisor of these activities, which does not

support a four-level enhancement. Finally, with regard to claiming a greater share

of the proceeds, Robelo-Galo emphasizes that none of the evidence shows that he

had any personal stake in the money. We disagree.

      The undisputed facts in the PSI, together with Robelo-Galo’s own

admissions, amply support the conclusion that Robelo-Galo substantially

participated in the organization of methamphetamine shipments and deliveries.

Robelo-Galo made weekly trips from South Carolina to Florida to deliver

methamphetamine to Bussey, a large methamphetamine distributor. He wielded a

sufficient degree of authority over at least seven other participants, specifically the

couriers, by controlling their movements and paying them for their services.

Robelo-Galo even recommended potential couriers to the organization.

      Additionally, and by his own admission, Robelo-Galo directly supervised at

least two of the participants, thus satisfying the adjustment qualification of acting

as a leader over “one or more other participants” under U.S.S.G. § 3B1.1. Lastly,

Robelo-Galo claimed the right to a larger share of the money derived from the

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sales, and used other conspirators to shield him from potential detection. Thus,

Robelo-Galo has not met his burden of showing clear error in the district court’s

judgment. Accordingly, we affirm the sentence imposed by the district court.

      AFFIRMED.




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