                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             Aug. 7, 2009
                              No. 09-10578                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 08-80062-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

KEVIN DELPECHE,

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 7, 2009)

Before BIRCH, CARNES and FAY, Circuit Judges.

PER CURIAM:

     Kevin Delpeche appeals his sixty-six-month sentence imposed for
(1) knowingly making and possessing counterfeited and forged securities of an

organization, in violation of 18 U.S.C. § 513(a), and (2) knowingly possessing or

using without lawful authority one or more means of identification of another

person, in violation of 18 U.S.C. § 1028(a)(7). On appeal, Delpeche argues that

the district court erred by issuing him a three-level role enhancement pursuant to

U.S.S.G. § 3B1.1(b) (Nov. 2008). For the reasons that follow, we AFFIRM.

                                I. BACKGROUND

      In a superseding indictment, a federal grand jury charged Delpeche with: (1)

knowingly making and possessing counterfeited and forged securities of an

organization, 18 U.S.C. § 513(a) (“Counts 1, 3-10”), and (2) knowingly possessing

or using without lawful authority one or more means of identification of another

person, 18 U.S.C. § 1028(a)(7) (“Count 2”). See R1 at 21. Delpeche pleaded

guilty to all counts without the benefit of a plea agreement. See R2 at 6, 35-36.

      At his guilty-plea hearing, Delpeche admitted the facts contained in the

government’s factual basis. See id. at 27. The government articulated the factual

basis for Delpeche’s plea as follows: On or about 4 June 2008, deputies of the

Palm Beach County Sheriff’s Department stopped Delpeche during a traffic stop.

Id. at 22. After discovering that Delpeche was driving on a suspended driver’s

license, the officers placed Delpeche under arrest and searched his car. Id. at 23.



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The officers found the following items in Delpeche’s car: a computer, a printer,

paper used to print checks, checks embossed with the names of different

companies, two driver’s licenses that bore Delpeche’s picture but had other

people’s names and identities on them, and checks made out to Delpeche’s co-

defendants. Id. at 23-24. Following this discovery, the officers notified the United

States Secret Service. Id. at 23.

      After the Secret Service agents informed Delpeche of his Miranda1 rights,

Delpeche admitted that his computer contained check-producing software and that

he was in the business of producing checks. Id. at 24. Delpeche told agents that he

would print checks based on the information that one of his co-defendants, later

identified as Lance Ramsey, would give him. Id. at 24-25. Delpeche stated that

Ramsey would negotiate the checks and share the proceeds with him. Id. at 24.

However, when Ramsey was interviewed, he told agents that he was “merely a

check casher, somebody who negotiated checks” and that Delpeche “was actually

the one that produced the checks and got the information so the checks could be

produced.” Id. at 25. The government noted that Ramsey’s statement was

supported by the fact that officers found a bag in Delpeche’s car containing various

pieces of paper with the names of private citizens and their social security



      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                               3
numbers, driver’s license numbers, credit reports, and other financial information.

Id.

      Ramsey also provided information that led agents to Sharhonda Denson, a

co-defendant, who recruited check cashers for the scheme. R3 at 65; R2 at 26.

Denson would retrieve the checks from Delpeche herself or bring the check cashers

to Delpeche. R2 at 26. She would then take the cashers to various locations to

negotiate the checks. Id. Once the checks had been negotiated, Denson would take

part of the proceeds and return the rest of the proceeds to Delpeche. Id.

      According to the presentence investigation report (“PSI”), Delpeche’s final

adjusted offense level was 16, which included a three-level increase pursuant to

U.S.S.G. § 3B1.1(b) for being a manager or supervisor in criminal activity

involving five or more participants or that was otherwise extensive. See R3 at 61.

This, along with Delpeche’s criminal history category of VI, yielded a guidelines

range of forty-six to fifty-seven months of imprisonment. See id.

      At the sentencing hearing, Delpeche objected to the PSI’s three-level

managerial role enhancement under § 3B1.1(b). Id. at 5. In response, Special

Agent Matthew Copeland of the Secret Service testified on behalf of the

government. See id. at 7. On direct examination, Copeland testified that Ramsey

admitted to traveling with Denson to meet Delpeche, at which time Delpeche



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would give him a check. See id. at 14. Ramsey would then go to the West Palm

Beach Circle K with Denson and cash the check. See id. Ramsey would split the

proceeds with Denson who would return the money to Delpeche. See id. at 15.

      Co-defendant Juree Jackson told Copeland that Denson would accompany

her to meet Delpeche, Delpeche would give her a check, she and Denson would

travel to the Circle K to collect the money, and she would hand the money over to

Denson. See id. at 16. Denson would then give a portion of the money to

Delpeche. Id. Co-defendant Cassandra Laster told Copeland that she and Denson

would meet with Delpeche to pick up the checks, then they would travel together to

the Circle K and other locations to cash the checks, and that she would give

Denson half of the proceeds. See id. at 17. Denson would give the proceeds back

to Delpeche. See id. at 17-18.

      Copeland also testified that Denson stated that she and Delpeche would split

the proceeds 50/50 and that she thought Delpeche received account information

from his sister. See id. at 18. Additionally, she stated that Delpeche “directed her .

. . where to cash the checks, locations that might be successful for them to cash

checks, specifically . . . the Circle K location in West Palm Beach.” Id. However,

on cross-examination, Copeland testified that neither Ramsey, Denson, Jackson,

nor Laster told him that Delpeche was the individual who determined the victims



                                           5
or the amount on the fictitious checks. See id. at 30-31.

         Based on Copeland’s testimony, the government argued that Delpeche was

the only person producing checks and sending them to the cashers. See id. at 43.

It argued that Delpeche was the one putting the pertinent information on the

checks, including corporate names and amounts. See id. The government further

argued that since Delpeche directed the cashers to the check cashing locations and

received a portion of the check cashers’ proceeds, a managerial role enhancement

was warranted. See id. at 45. In contrast, Delpeche argued that there was no

evidence showing that he determined who the victims were or the amounts on the

checks, and thus, there was no evidence that he had a managerial role. See id. at

46-47.

         The district court overruled Delpeche’s objection to the managerial role

enhancement. See id. at 50. The district judge noted that if Delpeche had only

made checks he would not be a manager, but explained:

         I . . . find that there is significant and substantial evidence that Mr.
         Delpeche’s role was far greater than that.

         There is credible testimony before The Court that Mr. Delpeche
         indicated the stor[e], at least one stor[e] where the checks were to be
         cashed.

         There is significant evidence indicating that Mr. Delpeche in fact was
         the person who determined who would be the check casher and the
         amount and so on.

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      Now, he may have acted through an intermediary, that is Ms. Denson
      may have been the person who went out and did the recruiting, but
      there is also testimony that Mr. Delpeche received moneys once the
      check had been negotiated.

      So if a manager is somebody who is directing and is in charge of and
      not just a supplier of the check, but somebody who really is managing
      the whole enterprise or playing a role, then certainly the Government
      has established that by a preponderance of the evidence.

Id. at 49-50.

      After discussing the 18 U.S.C. § 3553(a) factors, the district court sentenced

Delpeche to a total of sixty-six-months of imprisonment and three years of

supervised release. See id. at 73-79, 81. The district court also ordered Delpeche

to pay $5,373.82 in restitution. See id. at 79. Delpeche renewed his objection to

his managerial role enhancement. See id. at 84-85. This appeal follows.

                                 II. DISCUSSION

      “We review the district court’s factual findings for clear error and [its]

application of the sentencing guidelines to the facts de novo.” United States v.

McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006) (per curiam) (citation omitted).

      Pursuant to U.S.S.G. § 3B1.1(b), a district court may increase a defendant’s

role in the offense by three levels if the defendant “was a manager or supervisor

(but not an organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). “To qualify for an



                                          7
adjustment under this section, the defendant must have been the . . . manager[] or

supervisor of one or more other participants.” U.S.S.G. § 3B1.1, comment. (n.2).

“A ‘participant’ is a person who is criminally responsible for the commission of

the offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment. (n.1).

The defendant need only exert “some degree of control, influence, or leadership” to

be considered a manager or supervisor under § 3B1.1(b). United States v. Yates,

990 F.2d 1179, 1182 (11th Cir. 1993) (per curiam). In United States v. Matthews,

we held that a defendant who “fronted or directly sold cocaine to numerous

‘runners’ who would then sell the drug to buyers” and give the defendant the

resulting profit justified a managerial role enhancement under § 3B1.1(b). 168

F.3d 1234, 1250 (11th Cir. 1999)

      Here, Delpeche does not dispute the number of participants or the otherwise

extensive nature of the check cashing scheme, nor does he deny that he created the

counterfeit checks. In addition to Ramsey’s statement that Delpeche received the

information to produce the counterfeit checks, the government also found physical

evidence in Delpeche’s car that established that he had access to all the necessary

financial information that would allow him to decide which names and what

amounts to put on the counterfeit checks.

      The evidence also shows that Delpeche directed at least one other individual,



                                            8
Denson. Delpeche told her to cash the checks at the West Palm Beach Circle K

because the cashers would be able to successfully cash the counterfeit checks at

that location. The evidence also shows that Ramsey, Jackson, and Laster

successfully cashed counterfeit checks at that Circle K location.

      Furthermore, similar to the defendant in Matthews, Delpeche would front

counterfeit checks to his co-defendants, who, in turn, would share the proceeds

with him after cashing out. See id at 1250. Thus, the district court properly issued

Delpeche a three-level role enhancement for being a manager or supervisor of a

check cashing scheme when Delpeche created the counterfeit checks, obtained the

information to put on the counterfeit checks, directed at least one individual in the

scheme, and received a portion of the proceeds after the counterfeit checks were

negotiated.

                                III. CONCLUSION

      Based on the evidence in the record, the district court did not err by finding

that Delpeche’s role in the check cashing scheme warranted a three-level

enhancement under § 3B1.1(b). Accordingly, we AFFIRM.

      AFFIRMED.




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