           Case: 17-14542   Date Filed: 07/18/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14542
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:16-cr-00172-HES-PDB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

MARCELLE JENKINS,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 18, 2018)

Before TJOFLAT, BRANCH and ANDERSON, Circuit Judges.

PER CURIAM:
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      Marcelle Jenkins appeals his total 264-month sentence after pleading guilty

to one count of conspiracy to distribute at least 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On appeal, he argues the

district court erred when it applied a three-level enhancement for an aggravating

role for behaving as a manager or supervisor (but not an organizer or leader) of a

criminal activity involving five or more participants or otherwise extensive,

pursuant to U.S.S.G. § 3B1.1(b), and a two-level enhancement for committing an

offense as part of a pattern of criminal conduct engaged in as a livelihood, pursuant

to U.S.S.G. § 2D1.1(b)(15)(E).


                                          I.

      We review a district court’s interpretation and application of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v. Smith,

480 F.3d 1277, 1278 (11th Cir. 2007). Factual findings are clearly erroneous

when, although there is evidence to support them, the appellate court on the record

as a whole “is left with a definite and firm conviction that a mistake has been

committed.” United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011)

(quotation marks omitted). There is no clear error in cases where the record

supports the district court’s findings. United States v. Petrie, 302 F.3d 1280, 1290

(11th Cir. 2002).

      The government must establish the facts necessary to support a sentencing

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enhancement by a preponderance of the evidence. United States v. Perez-Oliveros,

479 F.3d 779, 783 (11th Cir. 2007). This burden requires the trier of fact to

believe that the existence of a fact is more probable than its nonexistence. United

States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). The preponderance-of-

the-evidence standard is not toothless, however, and the district court must ensure

that the government carries its burden by presenting reliable and specific evidence.

Id. We will not disturb a district court’s factual findings under the clearly

erroneous standard unless we are left with a “definite and firm conviction that a

mistake has been committed.” Id.

      Pursuant to U.S.S.G. § 3B1.1(b), the offense level is increased by three

levels if the defendant was a manager or supervisor (but not organizer or leader)

and the criminal activity involved five or more participants or was otherwise

extensive. U.S.S.G. § 3B1.1(b). In the Guideline commentary, it states that factors

the court should consider are

      the exercise of decision making authority, the nature or participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

U.S.S.G. § 3B1.1(b), comment. (n.4).

      A managerial enhancement can be imposed only where there is a

preponderance of the evidence that the defendant supervised or controlled others,
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or exercised some management responsibility over the activities of the criminal

organization. United States v. Glinton, 154 F.3d 1245, 1260 (11th Cir. 1998). Our

caselaw indicates that the mere direction of others is sufficient to sustain an

enhancement for being a manager or a supervisor. See U.S.S.G. § 3B1.1,

comment. (n.2) (“[T]he defendant must have been the organizer, leader, manager,

or supervisor of one or more other participants.”); United States v. Jiminez, 224

F.3d 1243, 1251 (11th Cir. 2000) (“[T]he assertion of control or influence over

only one individual is enough to support a § 3B1.1(c) enhancement.”).

      Typically, merely being a middleman or a distributor does not support a

§ 3B1.1 enhancement, because the enhancement requires the exercise of some

authority in the organization and the exertion of some degree of control, influence,

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

(upholding the § 3B1.1(a) enhancement where the defendant had recruited and

instructed co-conspirators). A buyer-seller relationship is insufficient to support

the managerial enhancement. Glinton, 154 F.3d at 1260; United States v. Alred,

144 F.3d 1405, 1422 (11th Cir. 1998) (noting that arrangements between buyers

and sellers, such as negotiating deliveries, were incidental to the buyer-seller

relationship, and were insufficient to support a § 3B1.1(a) enhancement). In

contrast, the management enhancement is appropriate where a defendant arranges

drug transactions, negotiates sales with others, and hires others to work for the


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conspiracy. See United States v. Perry, 340 F.3d 1216, 1217-18 (11th Cir. 2003)

(upholding the § 3B1.1(c) enhancement where the defendant (1) actively recruited

two individuals to transport drugs, (2) arranged for one of those individuals to

transport cocaine, (3) directly paid at least one of those individuals for transporting

cocaine, and (4) was paid for his recruitment and supervision of individuals in the

drug conspiracy).

      The district court did not clearly err in applying a three-level enhancement,

pursuant to § 3B1.1(b), for acting as a manager or supervisor because the record

supports a finding that Jenkins arranged drug transactions, negotiated sales, and

directed the actions of at least one other co-conspirator. Perry, 340 F.3d at

1217-18; Jiminez, 224 F.3d at 1251.

                                          II.

      Pursuant to U.S.S.G. § 2D1.1(b)(15)(E), if a defendant receives an

adjustment under § 3B1.1 for an aggravating role and the defendant committed the

offense as part of a pattern of criminal conduct engaged in as a livelihood, the total

offense level is increased by two levels. U.S.S.G. § 2D.1.1(b)(15)(E). The section

commentary adopts the meaning of “pattern of criminal conduct” and “engaged in

as a livelihood,” as defined in § 4B1.3. U.S.S.G. § 2D.1.1(b)(15)(E). comment.

(n.20(C)). “Pattern of criminal conduct” is defined as “planned criminal acts




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occurring over a substantial period of time. Such acts may involve a single count

of conduct or independent offenses.” U.S.S.G. § 4B1.3. comment. (n.1).

      “Engaged in as a livelihood” means that (A) the defendant derived
      income from the pattern of criminal conduct that in any [12]-month
      period exceeded 2,000 times the then existing hourly minimum wage
      under federal law; and (B) the totality of circumstances shows that
      such criminal conduct was the defendant’s primary occupation in that
      [12]-month period (e.g., the defendant engaged in criminal conduct
      rather than regular, legitimate, employment; or the defendant’s
      legitimate employment was merely a front for the defendant’s
      criminal conduct.

U.S.S.G. § 4B1.3. comment. (n.2).

      The district court did not err in applying a two-level enhancement for

committing the offense as part of a pattern of criminal conduct engaged in as a

livelihood, pursuant to § 2D1.1(b)(15)(E), because Jenkins lacked legitimate

employment during the time of the charged conspiracy and could be attributed with

deriving more than $14,500, or 2000 times the federal minimum wage, in income

from the conspiracy.

AFFIRMED.




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