                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              February 8, 2008
                              No. 07-11010                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 06-80139-CR-KLR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ADOLFO SANTILLAN LOPEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (February 8, 2008)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Adolfo Santillan Lopez appeals his 120-month sentence imposed
after he pled guilty to conspiracy to possess with the intent to distribute at least 5

kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). On

appeal, Lopez first argues that the district court erred by finding that his sentence

warranted a two-level enhancement because he was a mid-level supervisor,

pursuant to U.S.S.G. § 3B1.1(c). Second, Lopez argues that the statutory

minimum sentence provisions of 21 U.S.C. § 841(b)(1)(A) are unconstitutional

under the Due Process and Equal Protection Clauses of the U.S. Constitution and

violate his Eighth Amendment right to be free from cruel and unusual punishment.

Based on our review of the record and the parties’ briefs, we vacate and remand for

resentencing as to the first issue and affirm as to the second.

I.    Aggravating-Role Enhancement

      We review a district court’s determination of a defendant’s role in an offense

for clear error. United States v. Jiminez, 224 F.3d 1243, 1250-51 (11th Cir. 2000).

“[T]he ultimate determination of role in the offense is also a fundamentally factual

determination entitled to due deference.” United States v. Rodriguez De Varon,

175 F.3d 930, 938 (11th Cir. 1999) (en banc). “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). “The findings of fact of the sentencing court may be based on



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evidence heard during trial, facts admitted by a defendant’s plea of guilty,

undisputed statements in the presentence report, or evidence presented at the

sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989).

         Section 3B1.1(c) of the Sentencing Guidelines provides, “If the defendant

was an organizer, leader, manager, or supervisor in any criminal activity [that

involved fewer than 5 participants and was not otherwise extensive], increase by 2

levels.” The commentary elaborates, “To qualify for an adjustment under this

section, the defendant must have been the organizer, leader, manager, or supervisor

of one or more other participants.” U.S.S.G. § 3B1.1, comment. (n.2). A

“participant” is “a person who is criminally responsible for the commission of the

offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment. (n.1).

An undercover law enforcement officer is not a participant. U.S.S.G. § 3B1.1,

comment. (n.1). “‘[P]articipation’ under the aggravating and mitigating role

guidelines implies criminal liability and intent, that the individual be an actual

member of the plan or conspiracy.” United States v. Costales, 5 F.3d 480, 484

(11th Cir. 1993). We have held that “a mere buyer/seller relationship is inadequate

to link individuals to a conspiracy.” United States v. Revel, 971 F.2d 656, 660

(11th Cir. 1992).



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      In order to warrant an enhancement under U.S.S.G. § 3B1.1(c), a defendant

must have “control over another participant in the criminal activity.” United States

v. Harness, 180 F.3d 1232, 1235 (11th Cir. 1999). The “assertion of control or

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

enhancement.” Jiminez, 224 F.3d at 1251. A district court errs if there is no

evidence or findings of fact that would support the conclusion that a defendant

organized, led, managed, or supervised one or more participants who engaged in

the criminal activities. See Harness, 180 F.3d at 1235.

      Here, we conclude from the record that the district court clearly erred by

finding that Lopez warranted an aggravating-role enhancement under U.S.S.G.

§ 3B1.1(c) because there is no evidence to support the finding that Lopez

controlled another participant in the criminal offense.

II.   Constitutionality of 21 U.S.C. § 841(b)(1)

      We review de novo whether a statute is constitutional. United States v.

Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). Section 841(b)(1) of Title 21

provides, in part, that “any person who violates subsection (a) of this section

involving . . . 5 kilograms or more of a mixture or substance containing a

detectable amount of . . . cocaine . . . shall be sentenced to a term of imprisonment

which may not be less than 10 years or more than life . . .” 21 U.S.C.



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§ 841(b)(1)(A)(ii)(II).

      We have upheld the constitutionality of 21 U.S.C. § 841(b)(1)’s mandatory

minimum sentencing provisions against due process, equal protection, and Eighth

Amendment challenges. See United States v. Holmes, 838 F.2d 1175, 1177-78

(11th Cir. 1988) (holding that § 841(b)(1)’s mandatory minimum provisions were

rationally related to the objectives of protecting public health and welfare); United

States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (holding that the mandatory life

sentence provisions of 21 U.S.C. § 841(b)(1) do not violate Eighth Amendment).

      Because we previously have held that the mandatory minimum sentence

provisions in 21 U.S.C. § 841(b)(1) are constitutional, Lopez’s argument that they

are unconstitutional fails.

      In conclusion, because no evidence supports the finding that Lopez

controlled another participant in the criminal offense, we vacate Lopez’s sentence

and remand this case for resentencing. Because we have held that the mandatory

minimum sentence provisions in 21 U.S.C. § 841(b)(1) are constitutional, we

affirm as to the second issue.

      VACATED AND REMANDED in part, AFFIRMED in part.




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