                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                 FILED
                                                                U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                       No. 10-13461                  MARCH 31, 2011
                                   Non-Argument Calendar               JOHN LEY
                                 ________________________               CLERK

                          D.C. Docket No. 5:08-cr-00016-WTM-JEG-3

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                           versus

MATTHEW L. BLACK,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

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

                                       (March 31, 2011)

Before HULL, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

         Matthew Black pleaded guilty to conspiracy to commit three robberies, in

violation of Hobbs Act. 18 U.S.C. § 1951. He and two co-conspirators—Andrew
Holt and Amanda Cosgrove—robbed a commercial business and two federally

insured banks. On appeal, Black argues that the district court committed clear

error in sentencing him as an “organizer” or “leader” under U.S.S.G. § 3B1.1(c).

He also contends that his 97-month sentence is substantively unreasonable

because it creates an unwarranted disparity between Black and one of his co-

conspirators, who received a 27-month sentence. After reviewing the record and

the parties’ briefs, we affirm.

                                          I.

      We review for clear error the district court’s determination that Black acted

as “an organizer, leader, manager, or supervisor” for the purposes of U.S.S.G. §

3B1.1(c). United States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir.

1999) (en banc). “A finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v.

U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525 (1948).

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

on the defendant’s role in a given crime. A two-level enhancement is applied if

the defendant “was an organizer, leader, manager, or supervisor” in the criminal




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activity. U.S.S.G. § 3B1.1(c). In deciding whether such an increase is

appropriate, the district court considers


             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.

Id. § 3B1.1 n.4. “There can, of course, be more than one person who qualifies as a

leader or organizer of a criminal association or conspiracy,” however, the

enhancement “does not apply to a defendant who merely suggests committing the

offense.” Id.

      This Court has held that “the assertion of control or influence” over a single

individual is sufficient to support a § 3B1.1(c) enhancement. United States v.

Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000). For example, a defendant’s

decision to recruit, prompt others to purchase weapons, and brief another on the

plan details is sufficient to warrant the offense-level increase. United States v.

Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004).

      Despite the existence of isolated facts indicating that any given member was

a “leader,” we seriously doubt that it is possible to extend the leadership



                                            3
enhancement to every member of a conspiracy, Here, however, we cannot

conclude that the district court clearly erred as Black’s actions sufficiently support

its determination. Black concedes that he “was not a mere follower,” and the pre-

sentence investigation report confirms that. He suggested committing the crime,

and while this alone is insufficient to justify the enhancement, he went further and,

inter alia, enlisted the two other co-conspirators. He involved himself in the

planning and execution of each of the robberies. He encouraged Holt to procure a

gun. Black’s argument that Cosgrove played a greater leadership role does not

foreclose the conclusion that the enhancement is appropriate for Black.

Accordingly, we uphold the district court’s application of the sentence

enhancement.

                                         II.

      We review the sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam). The

review is deferential, and a defendant challenging his sentence bears the burden of

showing that his sentence is unreasonable. Id. at 788. At sentencing, the district

court must consider the factors listed in 18 U.S.C. § 3553(a), which include

avoiding unwarranted sentencing disparities between similarly situated

defendants. See 18 U.S.C. § 3553(a)(6). However, there cannot be an

                                          4
unwarranted sentencing disparity between defendants that are not similarly

situated. United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009). In other

words, “‘[a] well-founded claim of disparity . . . assumes that apples are being

compared to apples.’” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.

2009) (quoting United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005)) .

      Here, Black focuses on the disparity between his sentence and the 27-month

sentence Holt received. Black, however, fails to appreciate that he and Holt are

not similarly situated. Most importantly, Black pleaded guilty to conspiracy to

commit three robberies while Holt pleaded guilty to one robbery. Furthermore,

Holt provided more assistance to the government than Black in an unrelated

investigation, resulting in the government filing a § 5K1.1 substantial-assistance

motion based on “very significant” assistance—rather than “significant”

assistance—on Holt’s behalf. As the two are not similarly situated, Black’s

argument is misguided and fails.

                                          III.

      We determine that the district court did not clearly err in sentencing Black

as a “leader” or “organizer” for his role in the three robberies at issue.

Furthermore, the sentence imposed for his criminal conduct is reasonable.

Accordingly, we affirm.

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AFFIRMED.




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