                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-16558                ELEVENTH CIRCUIT
                                                            JUNE 30, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                 D. C. Docket No. 08-00039-CR-3-MCR


UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

ABRAHAM DAVID SAFTCHICK,
a.k.a. Dave,

                                                        Defendant-Appellant.


                      ________________________

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

                             (June 30, 2009)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:
       Abraham David Saftchick appeals his 97-month sentence, imposed

following his guilty plea on one count of conspiracy to distribute and possess with

intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(vii) and 846. We find no error and affirm the sentence.

                                      BACKGROUND

       In the factual basis for his guilty plea, Saftchick agreed that he participated

in a conspiracy “to acquire distribution quantities of marijuana and provide the

marijuana to others” between January 2005 and May 2007 with codefendants

Christopher Hutchins and Howard Fisher. Saftchick also agreed that he and his

codefendants delivered over 100 kilograms of marijuana to Justin Mikhael1 in

Destin, Florida, and that the marijuana “would then be stored at Mikhael’s

residence until Mikhael would, in turn, distribute the marijuana to others.”

       According to the presentence investigation report (the “PSI”), Mikhael

operated a large drug-trafficking network, and Saftchick was a primary source of

marijuana for Mikhael. Saftchick transported high-quality marijuana from Florida

to New York, where it was ultimately sold. Mikhael received 10 to 20 pounds of

marijuana from Saftchick and his codefendants on at least 20 occasions, and he



       1
         The parties spell this name differently. We use the spelling used in the presentence
investigation report.

                                                2
paid an average of $3,500 per pound. Saftchick’s codefendants also delivered

marijuana to Mikhael on multiple occasions. A review of telephone records by

law enforcement revealed a “significant amount of telephone activity” between

Saftchick, Mikhael, and Fisher. Additionally, a quantity of marijuana and

numerous firearms were seized from Mikhael’s residence on April 5, 2007, and

Saftchick was observed visiting that residence after that date, on April 9, 2007. In

January 2008, Saftchick, Hutchins, and Saftchick’s mother were arrested in

California after police found 21 pounds of marijuana in their motel room. In May

2008, officers found a handgun at Saftchick’s residence, numerous firearms at

Hutchins’s residence, and records at Hutchins’s residence reflecting that 348

pounds of marijuana were distributed to persons other than Mikhael during the

course of the conspiracy. In the same month, law enforcement found numerous

firearms at Mikhael’s residence.

      In calculating the sentencing guidelines range, the probation officer applied

a base offense level of 26 because the offense involved between 100 and 400

kilograms of marijuana, U.S.S.G. § 2D1.1(c)(7). The officer applied a two-level

enhancement because a dangerous weapon was possessed, U.S.S.G. § 2D1.1(b)(1),

finding that Saftchick was accountable for firearms possessed by Mikhael during

the conspiracy. The officer also applied a four-level enhancement because

                                         3
Saftchick was an organizer or leader of criminal activity involving five or more

participants or was otherwise extensive, U.S.S.G. § 3B1.1(a), and a three-level

reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a) and (b). With a

total offense level of 29 and a criminal history category of II, the guidelines range

was 97 to 121 months’ imprisonment. The offense carried a statutory minimum of

5 years’ imprisonment and a maximum of 40 years, 21 U.S.C. § 841(b)(1)(B).

      Saftchick’s appeal relates to two objections he made to the PSI. First,

Saftchick objected to the four-level § 3B1.1(a) enhancement, arguing that

although he held a leadership position in the conspiracy, he supervised less than

five people in the conspiracy and therefore should receive only a two-level

enhancement under § 3B1.1(c), rather than the four-level § 3B1.1(a) enhancement.

Second, Saftchick objected to the two-level § 2D1.1(b)(1) enhancement, asserting

that Mikhael was merely a buyer, not a co-conspirator, that Saftchick was unaware

that Mikhael possessed firearms, and that Saftchick, therefore, should not be held

responsible for the firearms Mikhael possessed.

      At the sentencing hearing, the government presented Agent Michael Bettis

in support of the § 3B1.1(a) enhancement, who testified that Saftchick regularly

provided distribution quantities of marijuana to Mikhael, who then distributed the

drugs to “numerous” other individuals. Also, Saftchick acted in concert with

                                          4
Hutchins and Fisher, along with several “mules,” or transporters of the drugs,

including Maria Saftchick. The ledger found in Hutchins’s home “clearly

depict[ed] marijuana going out by group members . . . as well as monies going to

sources of supply for payments of large marijuana loads.” Moreover, the

marijuana was regularly “fronted” to Mikhael in “an ongoing operation.” The

district court found that the enhancement applied because the criminal activity

involved five or more participants, including Mikhael. The court also found that

even if there were fewer than five participants, the enhancement applied because

the conspiracy was “otherwise extensive,” as it ran from January 2005 through

May 2007, Saftchick transported marijuana between Florida and New York, the

marijuana was of high quality, and a significant amount of money was involved.

       The court also overruled Saftchick’ s objection to the § 2D1.1(b)(1)

enhancement based on Mikhael’s possession of firearms. Per agent Bettis’s

previous testimony during a codefendant’s sentencing hearing,2 firearms were

found in Mikhael’s home on April 5, 2007, and Mikhael stated that he needed

them for protection after he was robbed during a drug transaction. The court

found that the §2D1.1(b)(1) enhancement applied because Mikhael was a



       2
          Saftchick and the government stipulated that the court could rely upon Agent Bettis’s
prior testimony.

                                                5
co-conspirator, even though not charged as such, he possessed the firearms in

furtherance of and in close temporal proximity to the conspiracy, and it was

reasonably foreseeable that firearms would be possessed in light of the nature of

the operation.

      The court sentenced Saftchick to 97 months’ imprisonment, and Saftchick

timely appealed.

                            STANDARD OF REVIEW

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

Guidelines de novo. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.

2007). “A district court’s determination as to a defendant’s role in the offense is a

finding of fact subject to a clearly erroneous standard of review.” United States v.

Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). The factual determination that a co-

conspirator possessed firearms in furtherance of the conspiracy is also reviewed

under the clearly erroneous standard. United States v. Nino, 967 F.2d 1508, 1514-

15 (11th Cir. 1992).

                                   DISCUSSION

Section 3B1.1(a) Enhancement for a Leadership Role

      Saftchick argues that the court erroneously applied the § 3B1.1(a)

enhancement because, although he had a leadership role in the conspiracy, it did

                                          6
not involve five or more participants and was not otherwise extensive. Thus,

Saftchick claims he should only have received a two-level enhancement under

§ 3B1.1(c). Saftchick asserts that Mikhael was just a buyer and not a participant

in the conspiracy. Saftchick, relying on Yates, 990 F.2d 1179, also asserts that the

district court erred in finding that the operation was otherwise extensive. We

disagree and affirm the enhancement of Saftchick’s sentences under § 3B1.1(c).

      The guidelines provide for a four-level enhancement “[i]f the defendant was

an organizer or leader of a criminal activity that involved five or more participants

or was otherwise extensive.” U.S.S.G. § 3E1.1(a). The application notes instruct

that “[a] ‘participant’ is a person who is criminally responsible for the commission

of the offense, but need not have been convicted.” Id., comment. (n.1). “[I]n

deciding whether individuals were participants in the criminal activity, the court

must consider, in addition to the criminal act itself, the individuals’ involvement in

the events surrounding the criminal act.” United States v. Holland, 22 F.3d 1040,

1046 (11th Cir. 1994).

      The application notes further instruct that “[i]n assessing whether an

organization is ‘otherwise extensive,’ all persons involved during the course of the

entire offense are to be considered.” U.S.S.G. § 3B1.1, comment. (n.3).

“Although this circuit does not employ a precise definition for the ‘otherwise

                                          7
extensive’ standard, there are a number of factors relevant to the extensiveness

determination, including the length and scope of the criminal activity as well as

the number of persons involved.” Holland, 22 F.3d at 1046.

      Here, the district court committed no error in finding that Saftchick held a

leadership position in an organization involving five or more participants nor in

finding that his organization was “otherwise extensive.” Between January 2005

and May 2007, Saftchick and his codefendants regularly delivered over 100

kilograms of marijuana to Mikhael, who in turn operated a large drug-trafficking

network. Officers discovered a “significant amount of telephone activity” between

Saftchick, Fisher, and Mikhael. Moreover, the marijuana was regularly “fronted”

to Mikhael, i.e.,Mikhael would pay Saftchick and his codefendants after receiving

money from Mikhael’s “numerous” buyers. The court did not err in interpreting

this evidence to mean that Mikhael was a participant in Saftchick’s organization.

See United States v. Matthews, 168 F.3d 1234, 1249-50 (11th Cir. 1999) (holding

that fronting drugs to another individual is sufficient to make that individual a part

of the defendant’s criminal organization and to warrant use of a similar leadership

enhancement under § 3B1.1(b)). Additionally, Saftchick did not need to have

control over every co-conspirator for § 3B1.1(a) to apply, so long as he held a

leadership role and the organization involved five or more people. See id.

                                          8
      In addition, the district court properly found that the organization was

“otherwise extensive.” Saftchick transported high-quality marijuana from Florida

to New York. Mikhael paid Saftchick and his codefendants approximately $3,500

per pound of marijuana. Several “mules” were employed as drug couriers, and a

ledger found in Hutchins’s home indicated that Saftchick and his codefendants

distributed 348 pounds of marijuana to persons other than Mikhael. Further,

Saftchick and his co-defendants were arrested with, collectively, over 60 pounds

of marijuana in their possession. These facts demonstrate Saftchick’s criminal

activity was otherwise extensive. See United States v. Rodriguez, 981 F.2d 1199,

1200 (11th Cir.1993) (finding that the defendant was involved in “otherwise

extensive” criminal activity when he “was organizing a drug transaction that

extended from Columbia to Florida to Boston to New York, and which included

the purchase and street distribution of 100 kilos of cocaine worth $350,000 in the

wholesale market”).

      As a final matter, Yates is distinguishable. In Yates, this court reversed the

district court’s application of a § 3B1.1(a) enhancement to someone whom the

government had not proved held a leadership role in the organization, but was

instead simply a supplier to an extensive operation. 990 F.2d at 1181-82. The

district court applied§ 3B1.1(a) based solely upon the extensive nature of the

                                         9
distribution ring. Id. at 1180-81. This court vacated and remanded because the

government had presented no evidence that the defendant “was an organizer or

leader” and the evidence indicated at most “a continuing seller/buyer relationship”

between the defendant and the head of the drug ring. Id. Here, on the other hand,

Saftchick acknowledged that he occupied a leadership role in the conspiracy, the

evidence clearly reflected more than a mere buyer/seller relationship existed with

Mikhael, and Saftchick was not merely held accountable for selling drugs to the

leader of an otherwise extensive trafficking operation. Accordingly, we affirm the

application of the § 3B1.1(a) enhancement.

Section 2D1.1(b)(1) Enhancement for Possession of a Firearm

      Saftchick also argues that the district court erroneously applied the

§ 2D1.1(b)(1) enhancement based on Mikhael’s possession of firearms, because

Mikhael was not charged as a co-conspirator nor unavailable for indictment.

Moreover, Saftchick contends that Mikhael’s possession of firearms was not

reasonably foreseeable because they were hidden in his bedroom, and there was no

connection between the firearms and Saftchick. In addition, Saftchick argues that

he never admitted the facts in support of this enhancement, and that the

application of the enhancement therefore violated the Sixth Amendment under

United States v. Booker, 543 U.S. 220 (2005). Finally, Saftchick argues that

                                         10
Mikhael’s possession of firearms was not in furtherance of the conspiracy, as he

was merely a buyer.

      In the case of a drug-trafficking offense, the guidelines provide for a two-

level enhancement “[i]f a dangerous weapon (including a firearm) was possessed.”

U.S.S.G. § 2D1.1(b)(1). “[T]he [§ 2D1.1(b)(1)] enhancement is to be applied

whenever a firearm is possessed during conduct relevant to the offense of

conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997). For

this enhancement to apply to a defendant based on a co-conspirator’s possession

of a firearm, the government must show that: “(1) the possessor of the firearm was

a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the

defendant was a member of the conspiracy at the time of possession, and (4) the

co-conspirator possession was reasonably foreseeable by the defendant.” United

States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999). “Once the government

shows that a firearm is present at the site of the charged conduct, the evidentiary

burden shifts to the defendant to show that a connection between the firearm and

the offense is clearly improbable.” United States v. Westry, 524 F.3d 1198, 1221

(11th Cir. 2008) (quotations omitted), cert. denied, Carter v. United States, 129

S.Ct. 251 (2008), and Hinton v. United States, 129 S.Ct. 902 (2009).




                                         11
      This court has indicated that the §2D1.1(b)(1) enhancement may apply to a

defendant, based on a co-conspirator’s possession of a firearm, only when the

possessor is charged as a co-conspirator. See United States v. Otero, 890 F.2d

366, 367 (11th Cir. 1989). This court, however, later explained that Otero should

not be read strictly and that the general import of Otero is to avoid sentence

enhancements for firearms possession by persons outside a conspiracy. See

United States v. Nino, 967 F.2d 1508, 1514-15 (11th Cir. 1992) (applying the

enhancement even though the weapons were possessed by co-conspirators who are

not charged because one died before the conspiracy ended and the other

cooperated with the government in exchange for immunity). The Otero rationale

“is satisfied if the possessor of the firearm is a co-conspirator of the defendant

whose sentence is enhanced,” so long as the co-conspirator’s firearms possession

is in furtherance of the conspiracy and reasonably foreseeable. United States v.

Luiz, 102 F.3d 466, 469 (11th Cir. 1996); see U.S.S.G. § 1B1.3. Accordingly,

Mikhael’s firearms possession could be attributed to Saftchick as a co-conspirator,

regardless of whether Mikhael was indicted in this case.

      Thus, the district court did not err in enhancing Saftchick’s offense level

based on Mikhael’s possession of firearms. As discussed earlier, the facts support

the finding that Mikhael was a co-conspirator and not a mere buyer. Also,

                                          12
Mikhael possessed numerous firearms at his residence – from where Saftchick and

his codefendants regularly distributed large quantities of marijuana – and Mikhael

stated that he purchased them for protection after being robbed in a drug deal. The

fact that firearms were found at the home of a co-conspirator who stored and

distributed drugs as a part of their conspiracy supports the finding that Mikhael

possessed firearms in furtherance of the conspiracy and that Mikhael’s doing so

was reasonably foreseeable by Saftchick. See United States v. Fields, 408 F.3d

1356, 1359 (11th Cir. 2005) (holding that firearms were possessed in furtherance

of a drug conspiracy and reasonably foreseeable when found at the location from

which the defendant’s co-conspirators distributed drugs); see also United States v.

Pham, 463 F.3d 1239, 1246 (11th Cir. 2006) (recognizing that, in light of the

“frequent and overpowering connection between the use of firearms and narcotics

traffic,” it is “reasonably foreseeable that a co-conspirator would possess a firearm

where the conspiracy involved trafficking in lucrative and illegal drugs.”).

      Additionally, Saftchick was a member of the conspiracy when Mikhael

possessed the firearms. The charged conspiracy ran from January 2005 until May

2007, the firearms were found in Mikhael’s residence on April 5, 2007,

Saftchick’s codefendants engaged in narcotics-trafficking activities at Mikhael’s

residence through March 2007, and Saftchick was observed visiting Mikhael’s

                                         13
residence on April 9, 2007. Finally, Saftchick has not shown that a connection

between the firearms and the conspiracy was clearly improbable, and the record

does not support such a conclusion, in light of the location of the firearms and

Mikhael’s stated purpose for possessing them. See Fields, 408 F.3d at 1359. As a

result, the district court did not err in applying the § 2D1.1(b)(1) enhancement.

      As a final matter, Saftchick argues that the district court violated his Sixth

Amendment rights, as explained in Booker, 543 U.S. 220, by imposing an

enhancement for Mikhael’s possession of the firearms even though the facts

supporting that enhancement – that Mikhael possessed firearms – were neither

found by a jury nor part of Saftchick’s plea. Saftchick asserts that he was unaware

that Mikhael possessed any weapons. “Booker holds that ‘the Sixth Amendment

right to trial by jury is violated where under a mandatory guidelines system a

sentence is increased because of an enhancement based on facts found by the

judge that were neither admitted by the defendant nor found by the jury.’” United

States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006) (quoting United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)). “After Booker, district courts

may still impose fact-based sentencing enhancements under an advisory guidelines

system without violating the Sixth Amendment.” Id. Here, nothing in the record

suggests that the district court applied the guidelines in a mandatory fashion.

                                         14
Accordingly, we affirm the offense level enhancement for possession of a firearm

of a conspirator under § 2D1.1(b)(1).

                                CONCLUSION

      For the foregoing reasons, we AFFIRM Saftchick’s sentence.




                                        15
