                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              APR 4, 2006
                               No. 05-15257                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                      D. C. Docket No. 04-00536-CR-1-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

     versus

CESILIO RIVERA,
a.k.a. Roberto,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                                (April 4, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Cesilio Rivera, though counsel, appeals his 188-month sentence for
conspiracy to possess with the intent to distribute methamphetamine, in violation

of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii). The district court calculated

Rivera’s advisory Guidelines range as 188 to 235 months. On appeal, Rivera

argues that the district court clearly erred in assessing a two-level increase in his

offense level for an aggravating role in the offense, pursuant to U.S.S.G. §

3B1.1(c). After review, we affirm Rivera’s 188-month sentence.

       A. Role Enhancement

       Section 3B1.1 of the Sentencing Guidelines allows the sentencing court to

increase a defendant’s offense level by two, three or four levels as follows:

       (a) If the defendant was an organizer or leader of a criminal activity
       that involved five or more participants or was otherwise extensive,
       increase by 4 levels.

       (b) 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, increase by 3 levels.

       (c) If the defendant was an organizer, leader, manager, or supervisor
       in any criminal activity other than described in (a) or (b), increase by
       2 levels.


U.S.S.G. § 3B1.1.1 “Section 3B1.1 requires the exercise of some authority in the

       1
        Rivera was sentenced on September 1, 2005, and after United States v. Booker, 543 U.S.
220, 125 S.Ct. 738 (2005). We review the district court’s application of the Guidelines under the
same standards as we did pre-Booker, namely, that the district court’s interpretation of the
Guidelines is reviewed de novo and factual findings are reviewed for clear error. United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We first determine, utilizing pre-Booker
precedent, whether the district court correctly interpreted and applied the Guidelines to determine

                                                2
organization, the exertion of some degree of control, influence, or leadership.”

United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). The four-level

enhancement in § 3B1.1(a) also requires criminal activity that involved five or

more participants or was otherwise extensive. U.S.S.G. § 3B1.1(a). However, “the

assertion of control or influence over only one individual is enough to support a

§ 3B1.1(c) enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th

Cir. 2000). In assessing a defendant’s role in the offense, the factors the courts

should consider include:

       [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 cmt. n.4.

       B. Rivera’s Enhancement

       Here, the district court did not clearly err in enhancing Rivera’s sentence by

two levels for his aggravated role in the offense. Through the testimony of an

undercover agent, the government demonstrated that Rivera (1) negotiated the

price of a pound of methamphetamine from $11,000 to $12,500; (2) negotiated the



the appropriate advisory Guidelines range. See id. at 1178. On appeal, Rivera argues only about
the role enhancement and does not raise a reasonableness issue.

                                              3
terms of another sale, including allowing the agent to take the drugs to New York

and pay later; and (3) gave direction to a subordinate in the presence of the agent.

Further, on one occasion, the undercover agent attempted to negotiate prices with

the same subordinate, who told the agent to call Rivera directly. In short, Rivera

exercised decision-making authority, was the main participant in the commission

of the offense, had a large, if not exclusive, role in planning or organizing the

offense, and appeared to control a subordinate’s activities. Thus, there is no

reversible error in the role enhancement in this case.

      AFFIRMED.




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