            Case: 17-15777   Date Filed: 10/26/2018   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15777
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:17-cr-00076-CEH-TBM-2



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

versus

HERALDO MOJICA, JR.,

                                              Defendant-Appellant.

                       ________________________

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

                             (October 26, 2018)


Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.


PER CURIAM:
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      Heraldo Mojica appeals his 120-month sentence for conspiracy to possess

and possession of 500 grams or more of methamphetamine with intent to

distribute. At sentencing, the district court found Mr. Mojica was an organizer,

leader, manager, or supervisor in his criminal offense, thereby enhancing his

sentence under U.S.S.G. § 3B1.1 and making him ineligible to receive “safety-

valve” relief under U.S.S.G. § 5C1.2. We affirm Mr. Mojica’s sentence.


                                         I

      In January of 2017, federal agents received information from a confidential

source (“CS”) that Mr. Mojica was engaged in the distribution of

methamphetamine. On January 20, 2017, Mr. Mojica, his co-conspirator Miguel

Sandoval, and others met with the CS at a restaurant. During the meeting, Mr.

Mojica agreed to sell methamphetamine to the CS later in the week. Working

alongside federal agents, the CS later contacted Mr. Mojica to arrange the sale, and

Mr. Mojica agreed to complete the exchange at a hardware store on January 25,

2017. Mr. Mojica informed the CS that the other person present at the restaurant

meeting, Mr. Sandoval, would also attend the exchange.


      On January 25, 2017, federal agents observed Mr. Sandoval walk through

the hardware store parking lot, approach Mr. Mojica—who was sitting in a

separate vehicle—and hand Mr. Mojica a package wrapped in gym shorts. The


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agents approached Mr. Mojica and Mr. Sandoval and found 994 grams of

methamphetamine inside the package.


     Mr. Mojica and Mr. Sandoval were arrested and indicted for conspiracy to

possess 500 grams or more of methamphetamine with intent to distribute in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count I), and possession of 500

grams or more of methamphetamine with intent to distribute in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count II). Mr. Mojica pled guilty to both

counts.


     At the sentencing hearing, Mr. Sandoval testified that Mr. Mojica instructed

him on when, where, and how to make the exchange and what kind of car the

buyer would be in. Mr. Sandoval also testified that Mr. Mojica observed him

attempt to make the exchange, and that, when Mr. Sandoval could not locate the

car of the buyer, Mr. Mojica took back the methamphetamine to deliver it himself.

According to the record, Mr. Mojica was to pay Mr. Sandoval $500 for his part in

the exchange.


     Based on that evidence, the district court found that Mr. Mojica was an

organizer, leader, manager, or supervisor of one or more participants in the

offense pursuant to § 3B1.1(c), cmt. n.2. Consequently, Mr. Mojica received a

two-level increase in his offense level and did not meet the requirements of §


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5C1.2(a)(1–5) for “safety valve” relief. To support its finding, the district court

noted that Mr. Mojica planned and organized the exchange—through his

communications with the CS—and that Mr. Mojica supervised Mr. Sandoval by

following him to the hardware store and watching him attempt to find the buyer’s

car. The district court also noted that Mr. Mojica was to receive a greater share of

the profits from the sale than Mr. Sandoval.


     On appeal, Mr. Mojica argues that the district court erred by enhancing his

sentence under § 3B1.1(c) for having an organizing, leadership, or supervisory

role in the offense and by denying “safety valve” relief under § 5C1.2(a)(4).


                                        II

     We review a district court’s factual finding, including a defendant’s role in

the offense, for clear error. See United States v. Mesa, 247 F.3d 1165, 1168 (11th

Cir. 2001). In doing so, we accept the district court’s credibility determination

unless it is “contrary to the laws of nature, or is so inconsistent or improbable on

its face that no reasonable factfinder could accept it.” United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002).        We review the district court’s

application of the Sentencing Guidelines to the facts de novo. See Mesa, 247 F.3d

at 1168.




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     In relevant part, § 3B1.1(c) of the Sentencing Guidelines provides for a two-

level enhancement “[i]f the defendant was an organizer, leader, manager, or

supervisor” in the criminal offense.         To qualify for this enhancement, the

defendant “must have been the organizer, leader, manager, or supervisor of one or

more participants.”    § 3B1.1 cmt. n.2.       Factors a court should consider in

determining whether the defendant was an organizer, leader, manager, or

supervisor 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.” § 3B1.1 cmt. n.4. All of the enumerated factors,

however, need not be present for the district court to find that the defendant was

an organizer, leader, manager, or supervisor. See United States v. Ramirez, 426

F.3d 1344, 1356 (11th Cir. 2005).


     As relevant here, § 5C1.2(a)(4) of the Sentencing Guidelines provides that a

district court shall impose a sentence according to the applicable guidelines

without regard to a statutory minimum if, among other things, “the defendant is

not an organizer, leader, manager, or supervisor of others in the offense, as

determined under the sentencing guidelines . . . .” § 5C1.2(a)(4) (emphasis

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added). This guideline is commonly called the “safety-valve” provision. See, e.g.,

United States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000).


                                        III

     Mr. Mojica argues that the district court erred because the government did

not sufficiently prove that he acted in a leadership or supervisory capacity during

his criminal offense. Mr. Mojica specifically argues that the district court should

not have credited Mr. Sandoval’s testimony that, at the initial restaurant meeting,

noise from the restaurant’s TV’s prevented Mr. Sandoval from understanding the

purpose of the meeting and the plan to exchange drugs.


     The government responds that several facts in the record support the district

court’s finding that Mr. Mojica acted as an organizer, leader, or supervisor. First,

Mr. Sandoval’s testimony that Mr. Mojica arranged the sale was corroborated by

Mr. Mojica’s own admissions and a recorded phone call, which showed that Mr.

Mojica was responsible for communicating with the CS and negotiating the price.

Second, Mr. Mojica planned to supervise the exchange by “watching [Mr.

Sandoval] to make sure [he] did the transaction right.” D.E. 137 at 11. Third,

when Mr. Sandoval could not find the buyer in the hardware store parking lot, Mr.

Sandoval returned the methamphetamine to Mr. Mojica so that Mr. Mojica could

complete the exchange himself.


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      We conclude that the district court did not clearly err in finding that Mr.

Mojica acted as an organizer, leader, manager, or supervisor in the criminal

offense. Evidence in the record, such as Mr. Sandoval’s testimony, the recorded

telephone conversation, and Mr. Mojica’s own admissions support the district

court’s finding that Mr. Mojica planned the exchange, explained to Mr. Sandoval

his role, supervised the exchange, and attempted to take the lead when Mr.

Sandoval could not locate the buyer’s car. Mr. Mojica points to nothing in the

record to establish that this evidence was so “contrary to nature” or improbable that

no reasonable factfinder could accept it. See Ramirez-Chilel, 289 F.3d at 749. Mr.

Mojica may disagree with the court’s interpretation of the evidence, but, “[w]here

evidence has two possible interpretations, the district court’s decision cannot be

clearly erroneous.” United States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998).

Therefore, the district court did not clearly err by relying on Mr. Sandoval’s

testimony and other corroborative evidence to find that Mr. Mojica acted as an

organizer, leader, or supervisor under the Sentencing Guidelines. And this finding

precluded “safety-valve” relief under § 5C1.2(a)(4).


      Mr. Mojica also argues that the district court improperly relied on its finding

that Mr. Mojica “claimed right to a larger share of the fruits of the crime”–—

another factor used to establish that a defendant had a leadership role under the

Guidelines. See § 3B1.1 cmt. n.4. Mr. Mojica asserts that the record does not

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establish the cost of the methamphetamine sold, and therefore, there is no evidence

to calculate the exact profit Mr. Mojica would have made on the sale. This

argument is unpersuasive.


      Evidence in the record, including a recorded telephone conversation, states

that the CS was to pay Mr. Mojica $15,000 for the methamphetamine.                At

sentencing, the prosecutor and the district court judge also referenced the fact that

“Mr. Sandoval was only getting $500 out of the $15,000 plus that was going to be

paid for the methamphetamine.” Mr. Mojica did not object to these references to

the purchase price, and he submitted no evidence to contradict the $15,000 figure.

Based on the large disparity between the purchase price and Mr. Sandoval’s

expected share, the district court had sufficient evidence to find that it was more

likely than not that Mr. Mojica would have retained “a larger share of the fruits of

the crime.” § 3B1.1 cmt. n.4. See Mesa, 247 F.3d at 1168 (finding that the

defendant claimed “a greater share of the profits,” as he was “the source of the

[drugs sold]”).


      Even if the district court could not determine that Mr. Mojica would receive

a larger share of the profits without calculating his exact profit margin, that would

not be dispositive. A district court is not required to rely on every factor in the

comments to § 3B1.1 to find that the defendant acted as an organizer, leader,

manager, or supervisor. See Ramirez, 426 F.3d at 1356. In this case, other
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factors—such as Mr. Mojica organizing and supervising the exchange—

sufficiently support the district court’s finding.


                                           IV

      Mr. Mojica’s judgment and commitment order does contain a clerical error.

“[I]t is fundamental error for a court to enter a judgment of conviction against a

defendant who has not been charged, tried, or found guilty of the crime recited in

the judgment.” United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006). And

Rule 36 provides the mechanism to “correct a clerical error in a judgment, order,

or other part of the record . . . .” Fed. R. Crim. P. 36. We apply Rule 36 to correct

a clerical error in the judgement regardless of whether the error prejudiced the

defendant. See United States v. James, 642 F.3d 1333, 1343 (11th Cir. 2011);

United States v. Portillo, 363 F. 3d 1161, 1164 (11th Cir. 2004).


      The judgment and commitment order states that Mr. Mojica was convicted

of possession with intent to distribute 500 grams or more of a mixture of

methamphetamine, “in violation of 21 U.S.C. §§ 814(a)(1) and 841(b)(1)(A).”

D.E. 118 at 1 (emphasis added). The correct statute, however, is 21 U.S.C. §

841(a)(1). We remand for the limited purpose of correcting that error.


AFFIRMED in PART; VACATED AND REMANDED in PART.



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