              Case: 15-15555     Date Filed: 08/15/2016   Page: 1 of 4


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-15555
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:15-cr-20151-JEM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

GUY DERILUS,

                                                              Defendant-Appellant.

                           ________________________

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

                                 (August 15, 2016)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Guy Derilus appeals his 180-month sentence, imposed after he pleaded

guilty to conspiracy to possess with intent to distribute 5 kilograms or more of
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cocaine, in violation of 21 U.S.C. §§ 841(a) and 846. On appeal, Derilus argues

that the district court erred when it applied a two-level enhancement for Derilus’s

leadership role in the conspiracy under U.S.S.G. § 3B1.1(c). He contends the

government failed to prove the disputed facts by a preponderance of the evidence

that he was an organizer, leader, manager or supervisor sufficient to impose the

enhancement. He also argues the court erred when it applied the two-level

enhancement for direct involvement in the importation of a controlled substance

under U.S.S.G. § 2D1.1(b)(15)(C), which is triggered if a defendant receives an

enhancement under § 3B1.1.

      Derilus was arrested after Homeland Security Investigations agents pulled

him over driving a car containing 288 kilograms of cocaine. The agents observed

Derilus and other co-defendants transporting boxes from the Motor Vessel Wave

Trader to Derilus’s car. The Homeland Security Agents along with United States

Immigration and Customs Enforcement agents had been monitoring Derilus and

the Wave Trader for two months prior to Derilus’s arrest. The Wave Trader

arrived at port in Miami having traveled from Haiti.

      We review the district court’s factual finding of a defendant’s role in an

offense for clear error. United States v. Moran, 778 F.3d 942, 979 (11th Cir.

2015). For a factual finding to be clearly erroneous, we must be “left with a

definite and firm conviction that a mistake has been committed.” Id. Once a


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defendant disputes a fact supporting the existence of an aggravating role, the

government “bears the burden of proving that disputed fact by a preponderance of

the evidence.” United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009).

When evidence presented is witness testimony, the credibility of the witness is in

the province of the court as the factfinder, and we restrain from reviewing the

factfinder’s determination of credibility unless the evidence 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) (quotations omitted).

      U.S.S.G. § 3B1.1(c) provides that a defendant’s offense level is increased by

two levels “[i]f the defendant was an organizer, leader, manager, or supervisor in

any criminal activity” involving less than five participants and was not “otherwise

extensive” within the meaning of § 3B1.1(a) and (b). Evidence showing that the

defendant exerted influence or control over even one other individual will be

sufficient to support an enhancement under § 3B1.1(c). United States v. Lozano,

490 F.3d 1317, 1323 (11th Cir. 2007). If a defendant receives an adjustment under

§ 3B1.1 and the defendant was “directly involved in the importation of a controlled

substance,” an additional two levels are added. U.S.S.G. § 2D1.1(b)(15)(C).

      Upon review of the record and consideration of the parties’ briefs, we

affirm. The district court did not clearly err in applying an enhancement pursuant


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to § 3B1.1. The government produced a witness, the U.S. Customs and

Immigration Enforcement lead agent assigned to this case, to testify at the

sentencing hearing and the testimony was sufficient to support the enhancement.

The credibility of the witness is left to the discretion of the district court. Ramirez-

Chilel, 289 F.3d at 749. The agent testified that Derilus met with members of the

drug conspiracy in both Haiti and the United States, that he was the one that told

crewmembers where the cocaine was stored on the ship, and that he met with the

owners of the ship used to smuggle the cocaine. Because there was sufficient

evidence to support a role enhancement under § 3B1.1, the enhancement under

§ 2D1.1(b)(15)(C) was also not clear error. Accordingly, Derilus’ sentence is

affirmed.

      AFFIRMED.




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