            Case: 12-16269   Date Filed: 07/01/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16269
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cr-20468-JAL-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MICHAEL GARRETT CHAVOUS,

                                                          Defendant-Appellant.

                       ________________________

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

                               (July 1, 2013)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Michael Chavous plead guilty to conspiracy to possess with intent to

distribute 5 or more kilograms of cocaine, in violation of 21 U.S.C. § 846, and the

District Court sentenced him to a prison term of 135 months. The 135-months’

term was at the bottom of the sentence range prescribed by the Sentencing

Guidelines.

      Chavous appeals his sentence, arguing that in determining his sentence range

under the Guidelines, the District Court erred in (1) enhancing the base level for

his offense by two levels pursuant to U.S.S.G. § 2D1.1(b)(1), based on his

possession of a firearm, (2) enhancing the base offense level by two levels

pursuant to U.S.S.G. § 3B1.1(c), based on his role as an organizer, leader,

manager, or supervisor of criminal activity, and (3) determining that he was

ineligible for a two-level reduction of his offense level under the safety-valve

provision, pursuant to U.S.S.G. § 5C1.2, because he played a supervisory role in

the offense and possessed a firearm in connection with the offense. We find no

error and affirm.

      Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two-level

increase of the base offense level, “[i]f a dangerous weapon (including a firearm)

was possessed.” “The enhancement should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with the offense.”

U.S.S.G. § 2D1.1, comment. (n.3(A)). The Government has the initial burden of


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showing that “the firearm was present at the site of the charged conduct or . . . that

the defendant possessed a firearm during conduct associated with the offense of

conviction.” United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).

“[T]he government must show that the firearm had some purpose or effect with

respect to the drug trafficking crime; its presence or involvement cannot be the

result of accident or coincidence.” Id. (quotation omitted). However, the

Government need not prove that the firearm was used to facilitate the offense.

United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). If the Government

is successful in meeting this initial burden, then the evidentiary burden shifts to the

defendant, who must demonstrate that a connection between the weapon and the

offense was “clearly improbable.” Stallings, 463 F.3d at 1220 (quotation omitted).

      The District Court did not err in applying a two-level enhancement under §

2D1.1(b)(1). Chavous objected to the enhancement, but not to any of the facts

stated in the presentence investigation report (“PSI”), including the facts

supporting enhancement. Because Chavous did not object to any of these facts, he

effectively admitted the facts for sentencing purposes. See United States v. Wade,

458 F.3d 1273, 1277 (11th Cir. 2006); United States v.Aleman, 832 F.2d 142, 145

(11th Cir. 1987). Here, the facts in the PSI are that (1) a loaded firearm found in

the center console of a truck driven to the drug transaction belonged to Chavous,

(2) Chavous had driven from Georgia to Florida with a large amount of cash that


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was to be used to purchase cocaine, and (3) it is probable that the cocaine would

have been transported in the truck, which contained a firearm, after the purchase of

cocaine was completed because the other vehicle involved in the offense did not

accompany Chavous to the transaction. Because this evidence demonstrated that

Chavous’s possession of a firearm was part of the offense conduct, Chavous had

the burden of demonstrating the “clear improbability” that the firearm was

connected to the offense. See Stallings, 463 F.3d at 1220.

      Chavous offered no evidence, other than a proffer in which he argued that

the gun was always in the vehicle’s glove compartment and that he always traveled

with a gun, that a connection between the firearm and the offense was “clearly

improbable.” This, alone, was insufficient to show a clear improbability. See

United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (holding, in the

§ 2D1.1(b)(1) context, that a defendant failed to show that a connection between a

firearm and an offense involving 300 kilograms of cocaine hidden inside and

outside of a warehouse was “clearly improbable” where the firearm was in a closed

office in the warehouse, the defendant was outside of the warehouse, and the

defendant only had the firearm because of his job as a security guard).

      We review the application of the § 3B1.1(c) leadership role enhancement for

clear error. United States v. Barrington, 648 F.3d 1178, 1200 (11th Cir. 2011),

cert. denied, 132 S. Ct. 1066 (2012). In cases where a defendant is an “organizer,


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leader, manager, or supervisor” over one or more co-participants in a criminal

activity, a two-level sentencing enhancement applies. U.S.S.G. § 3B1.1(c) &

comment. (n.2).

      Section 3B.1(c) of the Guidelines provides for the enhancement of the

offense level by two levels if the defendant was an organizer, leader, manager, or

supervisor in the criminal activity. The commentary to § 3B1.1 sets forth factors

the District Court should consider in determining whether the enhancement

applies: (1) the exercise of decision-making authority; (2) the nature of

participation in the commission of the offense; (3) the recruitment of accomplices;

(4) the claimed right to a larger share of the fruits of the crime; (5) the degree of

participation in planning or organizing the offense; (6) the nature and scope of the

illegal activity; and (7) the degree of control and authority exercised over others.

U.S.S.G. § 3B1.1, comment. (n.4). All of these considerations need not be present.

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

showing that the defendant exerted influence or control over even one other

individual will be sufficient to support an enhancement under § 3B1.1(c). United

States v. Lozano, 490 F.3d 1317, 1323 (11th Cir. 2007) (holding that, although the

defendant lacked decision-making authority, the district court appropriately applied

a § 3B1.1(c) enhancement because he instructed at least one co-conspirator to

engage in criminal conduct and was “intricately involved in the offense”); U.S.S.G.


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§ 3B1.1, comment. (n.2). The § 3B1.1 commentary further states that “[t]here can,

of course, be more than one person who qualifies as a leader or organizer of a

criminal association or conspiracy.” U.S.S.G. § 3B1.1, comment. (n.4). The

government must prove the existence of a leadership role by a preponderance of

the evidence. United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993).

      We conclude that the District Court properly applied a two-level § 3B1.1(c)

enhancement for Chavous’s role in the offense. The evidence showed that

Chavous exercised control over at least one of his codefendants because (1) the

codefendant told FBI agents that Chavous had asked him to drive with a second

codefendant to Florida, (2) the codefendant expected to be paid for his

participation, and (3) Chavous provided his codefendants with the car in which

they traveled to Florida for the drug transaction. Thus, as the record shows,

Chavous exerted influence and control over at least one codefendant, the court did

not clearly err in applying the § 3B1.1(c) role enhancement. See Lozano, 490 F.3d

at 1323. Moreover, the evidence demonstrated that Chavous (1) exercised

decision-making authority, (2) participated in the offensive conduct to a higher

degree than two of his codefendants, and (3) stood to gain a higher profit from the

drug purchase than other participants. See U.S.S.G. § 3B1.1, comment. (n.4).

Furthermore, the fact that a codefendant may have acted as a leader did not

preclude the court from applying the aggravating-role enhancement. See id.


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      A defendant has the burden of establishing his eligibility for “safety-valve”

relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). A defendant

is eligible if he meets a list of criteria, including that he “was not an organizer,

leader, manager, or supervisor of others in the offense,” and did not “possess a

firearm or other dangerous weapon (or induce another participant to do so) in

connection with the offense.” U.S.S.G. § 5C1.2(a)(2), (4).

      In United States v. Carillo-Ayala, we held that a defendant is not necessarily

precluded from arguing that he did not possess a firearm “in connection with” his

offense under § 5C1.2, even though he received a firearm enhancement pursuant to

§ 2D1.1(b)(1). 713 F.3d 82, 90-91 (11th Cir. 2013). We indicated that § 5C1.2’s

“in connection with” requirement could be satisfied by a showing that the firearm

(1) was in close proximity to drugs, or (2) facilitated, or had the potential to

facilitate, the offense. Id. at 91-93.

      Here, because the District Court properly found that Chavous was a manager

or leader of others in the offense, he was ineligible for the safety-valve provision.

See U.S.S.G. § 5C1.2(a)(4). Moreover, although he was not precluded from

arguing that he did not possess a firearm in connection with the offense based on

the § 2D1.1(b)(1) enhancement for possession of a firearm, the evidence

demonstrates that the firearm had the potential to facilitate the offense. See

Carillo-Ayala, 713 F.3d at 93. The firearm was located in the truck in which


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Chavous drove to the drug deal. Had the cocaine purchase been successful,

Chavous likely would have driven the purchased cocaine in a vehicle containing a

firearm. As such, the gun had the potential to facilitate the offense, in that it had

the potential to be used once Chavous entered the vehicle with the cocaine.

      AFFIRMED.




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