                                                            [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                         APRIL 21, 2008
                                                      THOMAS K. KAHN
                                No. 07-11164
                                                           CLERK
                            Non-Argument Calendar
                          ________________________

                       D. C. Docket No. 05-20818-CR-ASG

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                     versus

THOMAS JERRY,
a.k.a. Jamar Alonzo,

                                                       Defendant-Appellant.


                          ________________________

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

                                 (April 21, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Thomas Jerry appeals his sentence of 19 months’ imprisonment, imposed

after he pled guilty to one count of possession with intent to distribute at least one

gram of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Jerry argues

that his role in the drug trafficking operation was merely that of a middleman and,

thus, is insufficient to support a three-level aggravating-role enhancement pursuant

to U.S.S.G. § 3B1.1(b). He asserts that, at best, the evidence supported that he was

a co-conspirator eligible for a one or two-level enhancement, but did not

demonstrate that he exercised control or influence over the distribution of the drugs

or the collection of the drug proceeds. For the reasons set forth more fully below,

we affirm.

      We review the district court’s application of the Guidelines de novo and its

factual findings for clear error. United States v. Lee, 427 F.3d 881, 892 (11th Cir.

2005). “A district court’s upward adjustment of a defendant’s Guidelines offense

level . . . under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.”

United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002).

      The Sentencing Guidelines provide for an increase in the offense level based

on the defendant’s role in the offense. U.S.S.G. § 3B1.1. A three-level increase is

applied if the defendant “was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was



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otherwise extensive.” U.S.S.G. § 3B1.1(b). In making the aggravating role

determination, the district court should consider several factors, including

      the exercise of decision making authority, the nature of 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, comment. (n.4). “The government bears the burden of proving

by a preponderance of the evidence that the defendant had an aggravating role in

the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).

      A defendant’s status as a middleman or distributor is insufficient to support

a managerial role enhancement. United States v. Yates, 990 F.2d 1179, 1182

(11th Cir. 1993). Rather, the government must establish that the defendant

exercised “authority in the organization that perpetrates the criminal conduct, the

exertion of control, or leadership.” United States v. Alred, 144 F.3d 1405, 1422

(11th Cir. 1998).

      Here, the testimony presented at sentencing established that Jerry was more

than a middleman in the drug-trafficking operation, which involved at least five

participants, including himself, codefendants Taurus Geter, Dominick Jagne,

Derrick Glen, Travis Smith, and a man known by the name of “Jit.” The record

indicates that Jerry met with a confidential informant (“CI”) and instructed the CI

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to retrieve “bombs” of heroin from codefendant Jagne, and to sell those drugs at a

specific street corner in Miami’s Overtown neighborhood. In addition to assigning

specific locations for each seller, Jerry also facilitated the distribution of the drugs

to the sellers from a central apartment. Further, Jerry collected the drug proceeds

from the CI after the sales were completed and passed the money on to

codefendant Geter. Accordingly, the district court did not clearly err in

determining that the government established, by a preponderance of the evidence,

that Jerry was a manager or supervisor within the meaning of U.S.S.G. § 3B1.1(b).

      In light of the foregoing, Jerry’s sentence is

      AFFIRMED.




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