                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                          JULY 30, 2010
                            No. 09-13779                   JOHN LEY
                        Non-Argument Calendar                CLERK
                      ________________________

               D. C. Docket No. 08-00141-CR-01-TCB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

LIANG YANG,

                                                        Defendant-Appellant.


                      ________________________

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

                             (July 30, 2010)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

      Liang Yang appeals his 60-month sentence imposed for conspiracy to bring

in and harbor illegal aliens, 8 U.S.C. § 1324(a)(1)(A)(v)(I). No reversible error has

been shown; we affirm.

      Yang challenges a four-level increase to his offense level for being an

organizer or leader of criminal activity, U.S.S.G. § 3B1.1. He contends that, based

on the limited time he was part of the conspiracy as only an employee at the

employment agencies, he was at most a manager or supervisor. We review a

district court’s determination about a defendant’s role in an offense for clear error.

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

must prove the existence of an aggravating role by a preponderance of the

evidence. Id.

      Pursuant to U.S.S.G. § 3B1.1(a), a defendant’s base offense level should be

increased by four levels if “the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise extensive.”* A

manager or supervisor of criminal activity warrants a three-level increase. See §

3B1.1(b). Titles are not controlling in the analysis; factors to consider in

determining whether one is a leader or organizer include decision-making

      *
     Yang does not challenge that the criminal activity involved the requisite
number of participants or that it was otherwise extensive.

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authority, nature of participation in the commission of the offense, the claimed

right to a larger share of the fruits of the crime, degree of participation in planning

or organizing the offense, and the degree of control and authority exercised over

others. See U.S.S.G. § 3B1.1, comment. (n.4).

      Here, the government’s case centered on several employment agencies that

arranged unlawful employment at Chinese restaurants, used drivers to transport

illegal aliens to the restaurants locally and throughout the United States, and

collected referral fees. The evidence showed that Yang’s involvement in this

criminal activity included (1) speaking with restaurants about their employment

needs and placing employees in various restaurants; (2) brokering a deal between

an employment agency owner who employed him and another employment agency

owner to place workers in restaurants and split the fee; (3) taking over the

operations of his codefendant’s agency because the agency lacked business and

Yang had a reputation among Chinese restaurants on the east coast for providing

illegal workers; and (4) hiring drivers, telling them where to take workers,

receiving the placement fees from the drivers, and paying the drivers’ commissions

from those fees.

      On these facts, we discern no clear error in the district court’s determination

that Yang was a leader of the criminal activity. That Yang participated in the



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conspiracy for only a few months or that he viewed himself as merely an employee

of the agencies does not alter the leadership role he carried out in making decisions

about how the agencies were run, exercising control over the drivers, and partaking

in a larger share of the profits. See id.

      Yang also challenges the substantive reasonableness of his sentence, arguing

that his co-conspirators received lower sentences than he despite being at least as

culpable as he was. We evaluate the substantive reasonableness of a sentence

under a deferential abuse-of-discretion standard. Gall v. United States, 128 S.Ct.

586, 597 (2007).

      The party challenging the reasonableness of the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both the record and the

18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). Under section 3553(a), a district court should consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

need for the sentence to provide adequate deterrence, respect for the law, and

protection of the public, policy statements of the Sentencing Commission,

provision for the medical and educational needs of the defendant, and the need to

avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

      We conclude that Yang’s 60-month sentence -- the statutory maximum, but



                                            4
also within his guidelines range of 57 to 60 months -- was reasonable. See Talley,

431 F.3d at 788 (noting that “ordinarily we would expect a sentence within the

Guidelines range to be reasonable”). Yang was responsible for placing at least 100

illegal aliens into employment, and he had a reputation among Chinese restaurants

as a reliable provider of illegal workers. And, as the district court noted in

concluding that the statutory maximum was appropriate, the conspiracy was

extensive and far-reaching and Yang knew about previous prosecutions of other

agency owners involved in the same conduct. So, Yang was aware of the illegality

of his acts but undertook them anyway.

      Yang’s argument that his codefendants and defendants in related cases

received lower sentences resulting in a sentencing disparity is unavailing.

Concerns about disparate sentences among co-conspirators are not implicated

where, as here, appellant and his codefendant and other offenders are not similarly

situated. Because Yang proceeded to trial but others involved in the offense

pleaded guilty pursuant to plea agreements and offered substantial assistance to the

government, the disparity in their sentences was not “unwarranted.” See United

States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008). And here, Yang alone

was found to be an organizer or leader of the conspiracy so “it was well within the

bounds of reasonableness” under section 3553(a) for the district court to impose a



                                           5
lengthier sentence on him than on the other offenders. See United States v.

Thomas, 446 F.3d 1348, 1357 (11th Cir. 2006).

      The district court abused no discretion when it rejected Yang’s argument for

parity with his co-conspirators and determined that a 60-month sentence was

reasonable under the circumstances.

      AFFIRMED.




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