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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13503
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:16-cr-00003-TCB-RGV-24



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TONIA WILLIAMS,

                                                         Defendant-Appellant.

                       ________________________

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

                            (November 15, 2018)

Before JORDAN, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
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      Tonia Williams appeals her conviction for attempting to distribute

methamphetamine and cocaine; she also appeals her sentence. She contends that

the district court should have dismissed the indictment because the government’s

conduct in carrying out the reverse sting operation in this case was outrageous and

violated her constitutional rights. She also challenges the court’s application of a

two-level sentencing enhancement based on her supervisory role in the criminal

activity. After careful review, we affirm Williams’s conviction, vacate her

sentence, and remand for resentencing.

                       I.      FACTUAL BACKGROUND

A.    Williams’s Criminal Offense

      This case arises out of an FBI investigation into Georgia prison guards who

were smuggling contraband into state prisons. The FBI eventually redirected the

investigation into guards’ conduct occurring outside prisons. The FBI created a

reverse sting operation in which a confidential human source (“CHS”) posed as a

high-level drug trafficker and asked prison guards to assist him in transporting

methamphetamine and cocaine to other purported drug traffickers. The guards

were told to wear their uniforms during the transactions to protect the drug deals

from law enforcement interdiction. The CHS paid the guards for their assistance.

      Williams, a corrections officer with the Georgia Department of Corrections,

was arrested in the reverse sting operation. Another prison guard, co-defendant

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Travonne Ferrell, approached Williams about participating in the scheme.

Although she initially declined, Williams agreed and assisted the CHS on three

occasions in transporting substances that she believed to be methamphetamine and

cocaine. For each transaction, Williams wore her guard uniform. She was given

the opportunity to back out before each transaction but opted to participate.

       In the first transaction, Ferrell and Williams met the CHS in a parking lot in

Locust Grove, Georgia. When Ferrell and Williams entered the CHS’s vehicle, he

told them that they would be delivering three kilograms of methamphetamine and

three kilograms of cocaine to Stockbridge, Georgia.1 The CHS explained that

Williams would ride with the CHS and transport the cocaine while Ferrell would

follow in his own vehicle and transport the methamphetamine. When they arrived

at the parking lot in Stockbridge, Ferrell and Williams placed bags containing the

drugs in another vehicle. The CHS paid Williams $1,500 for her assistance.

       While driving to Stockbridge, Williams told the CHS that she knew two

other prison guards who might want to assist in transporting drugs. Williams later

sent the CHS text messages containing the phone numbers for two guards,

Phoenicia Minor and Tacowan Fluellen.




       1
         For each of the transactions, the packages the CHS gave Williams contained counterfeit
methamphetamine and cocaine. We nonetheless refer to the substances as methamphetamine,
cocaine, or drugs for ease of reference.

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      In the second transaction, Williams and Minor met the CHS in a parking lot

in Locust Grove. The CHS gave Williams a bag containing three kilograms of

cocaine and Minor a bag with two kilograms of methamphetamine. The CHS

drove to Stockbridge with Minor in his vehicle, while Williams followed in her

vehicle. When they arrived at a parking lot in Stockbridge, Williams and Minor

placed the bags containing the drugs in another vehicle. This time Williams was

paid $3,000.

      Williams and Fluellen participated in the third transaction. They met the

CHS in a parking lot in Locust Grove. When they entered the CHS’s vehicle, he

instructed them that they each would transport a bag containing two kilograms of

cocaine and one kilogram of methamphetamine. The CHS drove to Stockbridge

with Fluellen in the CHS’s vehicle, while Williams followed in her vehicle. When

they arrived at the parking lot in Stockbridge, Williams and Fluellen placed the

bags containing the drugs in another vehicle. The CHS again paid Williams

$3,000. This was the last transaction in which Williams participated.

      The government indicted Williams and more than 20 other prison guards

who assisted the CHS in similar drug transactions. A grand jury changed Williams

with three counts of attempting to distribute methamphetamine and cocaine, in

violation of 21 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2, and three counts of




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affecting commerce by extortion under color of official rights, in violation of

18 U.S.C. § 1951(a).

      Williams moved to dismiss the indictment, claiming that the government

engaged in outrageous conduct and violated concepts of fundamental fairness by

creating a reverse sting operation that targeted individuals who had not previously

engaged in illegal conduct. A magistrate judge recommended that the district court

deny her motion. Williams objected to the magistrate judge’s recommendation.

The district court overruled the objection and denied the motion to dismiss.

      After the district court denied her motion to dismiss, Williams pled guilty to

one count of attempting to distribute methamphetamine and cocaine. At the plea

hearing, the government described how Williams had transported what she

believed to be a total of eight kilograms of cocaine and one kilogram of

methamphetamine in exchange for cash. The government also explained that

Williams was told and believed that her uniformed presence would protect the drug

deals by making it less likely that law enforcement officers would search her

vehicle if there was a stop. Williams agreed with the government’s description of

her conduct.

B.    Williams’s Sentencing

      After Williams pled guilty, the probation office prepared a presentence

investigation report (“PSI”). Based on the drug quantity, the PSI calculated

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Williams’s base offense level as 34. The PSI applied a two-level enhancement

based on Williams’s role as an “organizer, leader, manager, or supervisor” of the

criminal activity. U.S.S.G. § 3B1.1(c). The PSI explained that the supervisory

role enhancement was warranted because Williams recruited Fluellen to participate

in the scheme. After applying an additional two-level enhancement for abusing a

position of public trust and a three-level reduction for acceptance of responsibility,

the PSI found that Williams’s total offense level was 35. The PSI calculated that

this total offense level and Williams’s criminal history category of I yielded a

recommended range under the Sentencing Guidelines of 168-210 months of

imprisonment. The PSI noted that a downward departure or variance could be

warranted to avoid sentencing disparities with Williams’s similarly situated co-

defendants who received sentences significantly below their Guidelines ranges.

      Before sentencing, Williams objected to, among other things, the PSI’s base

offense level and the supervisory role enhancement. Regarding the base offense

level, she challenged the quantity of drugs that the PSI attributed to her and

asserted that under the correct quantity, her base offense level was 32. The

government agreed.

      Regarding the supervisory role enhancement, Williams argued that, by itself,

her recruitment of Fluellen was not a basis for imposing the enhancement and that

there was no evidence that she exerted any control, influence, or decision-making

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authority over the scheme. She also argued that she was entitled to a two-level

reduction in her offense level under the Guidelines’ “safety valve” provision. See

U.S.S.G. §§ 2D1.1(b)(17), 5C1.2. But Williams acknowledged that she was

eligible for this reduction only if the district court found that she should not receive

the two-level supervisory role enhancement. The government argued that the

supervisory role enhancement was warranted because Williams recruited Fluellen

and Minor to the scheme. The government explained that under binding precedent

recruiting an accomplice was sufficient to warrant a role enhancement.

      At the sentencing hearing, the district court adopted the PSI’s unobjected-to

findings of facts and conclusions of law. The court found that Williams’s base

offense level was 32. The district court then considered whether to apply the

supervisory role enhancement. To support the enhancement, the government

introduced evidence showing that Williams asked Minor to participate in the

scheme and connected the CHS with Minor. After considering the parties’

arguments, the court indicated that it was not “completely convinced that it is fair”

to apply the enhancement, but that binding precedent required it to apply the

enhancement. Doc. 819 at 17.2 The district court stated, “[I]f I were to find that

[Williams] was not subject to a role enhancement, I would be reversed.” Id.




      2
          Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.

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      After considering the other adjustments to Williams’s offense level, the

court found that Williams’s total offense level was 33. This offense level

combined with her criminal history category of I resulted in a Guidelines range of

135 to 168 months of imprisonment. After hearing arguments and allocution, the

court varied downward and sentenced Williams to 61 months’ imprisonment. This

is Williams’s appeal.

                        II.    STANDARDS OF REVIEW

      We review de novo a claim that a defendant was denied process of law based

upon outrageous conduct by the government. United States v. Edenfield, 995 F.2d

197, 200 (11th Cir. 1993). A challenge to the application of the Sentencing

Guidelines is a mixed question of law and fact. United States v. Mandhai,

375 F.3d 1243, 1247 (11th Cir. 2004). We review the district court’s findings of

facts for clear error and its application of the Guidelines to those facts de novo. Id.

                                     III.   ANALYSIS

      Williams raises two arguments on appeal. First, she argues that the district

court erred in denying her motion to dismiss the indictment. She contends that the

district court should have dismissed the charges against her because, in conducting

the reverse sting operation, the government engaged in outrageous conduct that

violated fundamental principles of due process. Second, she contends that the




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district court erred when it applied a two-level supervisory role enhancement at

sentencing. We consider these arguments in turn.

A.     The District Court Did Not Err in Denying Williams’s Motion to
       Dismiss the Indictment.

       Williams argues that the government engaged in outrageous conduct and

violated her due process rights when it created a reverse-sting operation that

targeted low-paid prison guards, who were not engaged in ongoing criminal

activity, with the allure of substantial cash payments for breaking the law.

Although the government’s conduct here was questionable, we cannot say that it

meets the very high standard for outrageous conduct to constitute a due process

violation.3

       The Supreme Court has said that “the conduct of law enforcement agents

[may be] so outrageous that due process principles would absolutely bar the

government from invoking judicial processes to obtain a conviction.” United

States v. Russell, 411 U.S. 423, 431-32 (1973). The outrageous conduct defense

“focuses on the tactics employed by law enforcement officials to obtain a

       3
         The government argues that Williams may not challenge the denial of her motion to
dismiss the indictment because she subsequently pled guilty. It is true that entering a guilty plea
generally “waives a defendant’s right to all non-jurisdictional challenges to a conviction.”
United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009). But “[t]here are . . . a few
exceptions to this rule.” Id. A defendant’s guilty plea “establishes factual guilt” of the charged
offense, “and therefore all constitutional violations which are inconsistent with that factual guilt
are waived by a guilty plea.” Id. But a plea of guilty “‘does not waive a claim that judged on its
face the charge is one which the [government] may not constitutionally prosecute.’” Id. (quoting
Menna v. New York, 423 U.S. 61, 62 n.2 (1975)). We assume for purposes of this appeal that
Williams did not waive her outrageous conduct defense by pleading guilty.

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conviction for conduct beyond the defendant’s predisposition.” United States v.

Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998). In considering this defense, we

ask whether the government’s “methods comport with the Fifth Amendment’s

guarantee of due process.” Id. Whether sufficiently outrageous government

conduct exists “turns upon the totality of the circumstances with no single factor

controlling,” but the defense may “only be invoked in the rarest and most

outrageous circumstances.” United States v. Haimowitz, 725 F.2d 1561, 1577

(11th Cir. 1984) (internal quotation marks omitted).

      This Court has suggested that the government’s conduct would be

sufficiently outrageous if the government “instigate[d] the criminal activity,

provide[d] the entire means for its execution, and [ran] the entire operation with

only meager assistance from the defendant.” United States v. Puett, 735 F.2d

1331, 1335 (11th Cir. 1984). But, the government argues, that is not what

happened here.

      After considering the totality of the circumstances, we cannot say that the

government’s conduct was sufficiently outrageous in this case. There was no

evidence that Williams had, prior to meeting the CHS, transported drugs, so we

accept that the government instigated the criminal activity by having the CHS pose

as a drug dealer who needed assistance moving large quantities of drugs. But this

is not a case where the government provided the entire means for the scheme’s

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operation or where the defendant provided only meager assistance. Williams

transported drugs for the CHS while wearing her uniform with the express

understanding that the uniform would help protect the drug deliveries from law

enforcement interdiction. She furthered the criminal scheme when she put the

CHS in contact with two other prison guards who joined the scheme, including

personally approaching Minor to recruit her.

      Williams argues that we should follow the Third Circuit’s reasoning in

United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), to conclude that the

government’s conduct in executing the reverse sting operation was so outrageous

as to violate due process. In Twigg, after pleading guilty to a crime, Robert Kubica

agreed to aid the government in apprehending illegal drug traffickers. Id. at 375.

Kubica approached defendant Henry Neville and proposed that they set up a

laboratory to manufacture methamphetamine hydrochloride (speed). Id. Over

several months, Kubica and Neville made arrangements to create a lab. Id.

Neville then pulled into the operation William Twigg, who owed him a debt. Id.

Neville “assumed primary responsibility for raising capital and arranging for

distribution” of the speed, “while Kubica undertook the acquisition of the

necessary equipment, raw materials, and a production site.” Id. The government

assisted Kubica with his end of the bargain, including by supplying Kubica with

the hard-to-obtain chemical that was the key ingredient in manufacturing

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speed. Id. During the process of setting up the lab and making the speed, “Kubica

was completely in charge of the entire laboratory,” and “[a]ny production

assistance provided by Neville and Twigg was minor and at the specific direction

of Kubica.” Id. at 376. After the lab was established, operated for one week, and

produced six pounds of speed, Neville and Twigg were arrested. Id.

      The Third Circuit reversed Neville’s and Twigg’s convictions, concluding

that the government’s conduct in organizing this reverse sting operation was

outrageous. Id. at 381-82. The Third Circuit reached this conclusion after

considering several factors. First, the Third Circuit focused on the fact Neville and

Twigg were not engaged in any ongoing criminal activity at the time that Kubica

approached them, and they did not create the illicit plan. Id. at 381. Second, the

Third Circuit considered that Kubica, the informant, controlled the operations and

furnished all the expertise necessary to build the laboratory. Id. at 380-81. Third,

the Third Circuit examined the “nature of the crime and the tools available to law

enforcement agencies to combat it.” Id. at 378 n.6. The court explained that the

crime at issue, drug manufacturing, was not a fleeting and elusive crime. Id. at

378. The court acknowledged that crimes involving the sale of illegal drugs,

because of their fleeting and elusive nature, could “require more extreme methods

of investigation.” Id.




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      Since deciding Twigg, the Third Circuit has narrowly applied Twigg’s

reasoning and has never held since that the government engaged in outrageous

conduct in executing a reverse sting operation. See United States v. Fattah,

858 F.3d 801, 813 (3d Cir. 2017); United States v. Beverly, 723 F.2d 11 (3d Cir.

1983). In Beverly, an informant introduced defendant Dorrie Adams to Darrell

O’Connor (an undercover government agent), telling Adams that O’Connor could

help him make money. 723 F.2d at 12. O’Connor offered Adams $3,000 to burn

down a building owned by a friend. Id. Adams agreed to participate and recruited

defendant Lawrence Beverly to help him. Id. Beverly told O’Connor that he had

never committed arson before but was willing to go along. Id. O’Connor brought

Adams and Beverly to a service station, bought gasoline, ascertained that Adams

had matches, and drove them to a building owned by the government. Id. Adams

and Beverly were arrested before burning down the building and convicted of

conspiring and attempting to destroy a government building by fire. Id.

      On appeal, Adams and Beverly, relying on Twigg, asserted that the

government’s conduct was outrageous and deprived them of due process. Id. The

Third Circuit affirmed their convictions, questioning whether Twigg had been

correctly decided and whether it remained good law in light of Supreme Court and

subsequent Third Circuit precedent. Id. at 12-13. The court in Beverly explained

that the outrageous conduct defense “should be accepted by a court only to curb

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the most intolerable government conduct.” Id. at 12 (internal quotation marks

omitted). Despite expressing “grave doubts about the propriety” of the

government’s tactics in using the reverse sting operation, the Third Circuit

nonetheless concluded that law enforcement’s conduct did not “shock[] the

conscience.” Id. at 13.

      We decline to apply the reasoning of Twigg here. It is true that, as in Twigg,

the government created a reverse sting operation that targeted individuals, like

Williams, who were not engaged in criminal behavior before being approached to

join the drug transportation scheme. But the important difference here, as we

explained above, is that Williams gave more than minor assistance to the scheme

when she transported drugs for the CHS, wore her uniform to avoid law

enforcement detection, and put the CHS in contact with Minor and Fluellen. As

the Third Circuit acknowledged in Twigg, “fleeting and elusive crime[s],” like drug

dealing, may “require more extreme methods of investigating” in a reverse sting

operation. Twigg, 588 F.2d at 378. Although troubling, the government’s conduct

here does not shock the conscience, so we cannot say that it was outrageous

enough to amount to a violation of due process. We caution that our decision

should not be read “as an approval of the government’s conduct” in carrying out

this type of reverse sting operation. Beverly, 723 F.2d at 13.




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B.    The District Court Operated Under a Misunderstanding of the Law in
      Applying a Two-Level Enhancement for a Supervisory Role.

      Williams also raises a separate challenge to her sentence, arguing that the

district court improperly calculated her offense level under the Sentencing

Guidelines when it applied a two-level supervisory role enhancement pursuant to

U.S.S.G. § 3B1.1(c). Because the district court appears to have erroneously

believed that it was compelled by precedent to apply the enhancement, we vacate

Williams’s sentence. We remand for resentencing so that the district court may

apply the correct legal standard in considering whether to apply the enhancement.

      Section 3B1.1 provides for a two-level enhancement in a defendant’s offense

level if she “was an organizer, leader, manager, or supervisor” of criminal activity.

U.S.S.G. § 3B1.1(c). For the enhancement to apply, the defendant must exert

“some degree of control, influence, or leadership” in the criminal conspiracy.

United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (internal quotation

marks omitted). The commentary to the Guidelines directs a court, in assessing a

defendant’s role, to consider the following factors: (1) whether she exercised

decision making authority, (2) the nature of her participation in the commission of

the offense, (3) whether she recruited accomplices, (4) whether she claimed a right

to a larger share of the fruits of the crime, (5) her 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 she exercised over others. U.S.S.G.
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§ 3B1.1 cmt. n.4. This multi-factor analysis requires a district court to decide

whether, under the totality of the circumstances, the enhancement should apply.

See United States v. Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005) (indicating that

a district court should weigh the “various factual considerations” set forth in the

commentary to the Guidelines to determine whether the enhancement applies on a

“case-by-case” basis). There is no requirement that all the considerations have to

be present for the enhancement to apply. Id.

      Because Williams objected to the PSI’s application of the supervisory role

enhancement, the government bore the burden of proving “by a preponderance of

the evidence the facts necessary to support” the enhancement. United States v.

Little, 864 F.3d 1283, 1290 (11th Cir. 2017) (internal quotation marks omitted);

accord Martinez, 584 F.3d at 1027. The government introduced evidence showing

that Williams personally asked Minor to join the criminal scheme and also

provided Minor’s and Fluellen’s names and phone numbers to the CHS. The

government’s evidence also showed that Williams received a larger payment for

the drug transactions that she completed with Minor and Fluellen. There was no

evidence, however, that Williams exercised any decision making authority in the

criminal scheme, was involved in the planning or organizing of the offense, or had

any control or authority over others involved in the scheme.




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      At the sentencing hearing, the district court concluded that it was bound by

precedent to apply the supervisory role enhancement. The court expressed concern

about the enhancement, stating that the court was “not completely convinced that it

is fair” to apply it. Doc. 819 at 17. The court then explained that it was bound to

apply the enhancement: “Let me put it like this: I feel that if I were to find that

she was not subject to a role enhancement, I would be reversed.” Id. These

statements indicate that the court was concerned about whether application of the

supervisory role enhancement to Williams was appropriate, but believed precedent

required it to apply the enhancement because Williams had recruited an

accomplice or accomplices to join the scheme. The district court’s conclusion was

based upon a misunderstanding of the law.

      The government argues that the district court properly applied the

supervisory role enhancement because this Court previously has affirmed the

application of the enhancement when the only evidence of the defendant’s

supervisory role was recruitment of co-conspirators. But the government’s

argument fails to address the question at the heart of the district court’s reasoning:

whether our precedent compels a district court to apply the enhancement when the

defendant recruited others to join the scheme.

      There is another potential flaw in the government’s argument: it is less than

clear whether our precedent actually permits a district court to apply the

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enhancement based solely on evidence that the defendant recruited others to join

the criminal scheme. In most of the published cases cited by the government, we

affirmed the application of the enhancement when the defendant had recruited co-

conspirators and taken other actions indicating control, influence, or leadership

over the organization. See, e.g., Ndiaye, 434 F.3d at 1304; United States v. Njau,

386 F.3d 1039, 1041 (11th Cir. 2004); United States v. Perry, 340 F.3d 1216,

1217-18 (11th Cir. 2003).

      The government cites only one published case that even arguably supports

its position that the enhancement may be applied based solely on evidence that the

defendant recruited accomplices. See United States v. Thomas, 446 F.3d 1348,

1355 n.2 (11th Cir. 2006). And it is unclear whether Thomas actually addressed

this issue. True, we stated in a footnote in Thomas that the district court did not err

in applying the enhancement because the defendant had recruited others to join the

scheme. Id. But we also explained, in a separate section of the opinion, that the

defendant was as an “organizer or leader” of the conspiracy because he determined

the manner by which the crime would be committed and the level of violence

necessary and obtained firearms for use in the crime, in addition to recruiting other

participants. Id. at 1357.

      We need not decide whether our precedent permits a district court to impose

the supervisory role enhancement based solely on the fact that the defendant

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recruited others to join the scheme. This appeal presents a different question:

whether the district court erred when it concluded that our precedent required it to

impose the enhancement.

        The district court, in effect, adopted a bright line rule that the enhancement

must be applied whenever the defendant recruited an accomplice. But the district

court did not identify and the parties did not cite any case supporting such a rule.

The district court’s application of this bright line rule cannot be reconciled with our

instructions that a district court should determine whether the enhancement applies

on a “case-by-case” basis in light of “various factual considerations” including:

whether the defendant exercised decision making authority, the nature of her

participation in the offense, whether she claimed a larger share of the fruits of the

crime, her degree of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree or control or authority that she

exercised over others. Ramirez, 426 F.3d at 1356 (citing U.S.S.G. § 3B1.1 cmt.

n.4).

        After the district court expressed doubt about whether a supervisory role

enhancement should be imposed on Williams, the court’s erroneous understanding

of the law led it to conclude that it was required to apply the enhancement without

considering other factors. We thus vacate Williams’s sentence and remand for

resentencing so that the district court can determine whether, in light of the proper

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legal standard, Williams served as “an organizer, leader, manager, or supervisor”

of the criminal activity and thus should be subject to a two-level role enhancement.

U.S.S.G. § 3B1.1(c).

                          IV.   CONCLUSION

      For the reasons set forth above, we affirm Williams’s conviction, vacate her

sentence, and remand the case to the district court for resentencing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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