                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             SEPT 11, 2008
                              No. 08-10574                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 07-14044-CR-JEM-DLG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

TROY HOLLANDER CRADDOCK,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 11, 2008)

Before BIRCH, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

     Troy Hollander Craddock appeals his 101-month total sentence for
conspiracy to interfere with interstate commerce by violence and robbery, in

violation of 18 U.S.C. § 1951(a), and possession and use of a firearm during and in

relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.

Specifically, the indictment alleged that Craddock and a co-defendant, Omar

Robinson, conspired to rob a restaurant in Port St. Lucie, Florida. Craddock pled

guilty to the charges pursuant to a written plea agreement.

      On appeal, Craddock argues that the district court erred in enhancing his

offense level two points, under U.S.S.G. § 3B1.1(c), because he was not an

organizer or manager in the charged conspiracy. Specifically, he argues that the

enhancement was not applicable to his possible recruitment or management of a

female restaurant employee, Lynn Watson, because she was not a participant in the

conspiracy. He also argues that the court made no finding that he deserved the

enhancement based on his role regarding his co-defendant Robinson, and this

Court cannot make that finding in the first instance.

      “We review the district court’s application of the sentencing guidelines de

novo and its findings of fact for clear error.” United States v. Baker, 432 F.3d

1189, 1253 (11th Cir. 2005). “A factual 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.”



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United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007), cert. denied, 128

S. Ct. 1295 (2008) (internal quotation marks omitted). The government bears the

burden of establishing a disputed fact at sentencing by a preponderance of the

evidence. See United States v. Pope, 461 F.3d 1331, 1335 (11th Cir. 2006).

      The district court should make explicit findings of fact at sentencing to

facilitate judicial review and avoid unnecessary remands. United States v.

Villarino, 930 F.2d 1527, 1528 (11th Cir. 1991); see also Fed. R. Crim. P.

32(i)(3)(B). A district court’s failure to resolve factual disputes may require us to

vacate a defendant’s sentence and remand the case to the district court for explicit

factual findings. See United States v. Caraza, 843 F.2d 432, 438 (11th Cir. 1988)

(per curiam). However, the district court’s failure to make specific findings of fact

will not preclude meaningful appellate review where evidence clearly supported

the court’s determination. See Villarino, 930 F.2d at 1529. More specifically, we

have stated:

      In making the ultimate determination of the defendant’s role in the
      offense, the sentencing judge has no duty to make any specific
      subsidiary factual findings. So long as the district court’s decision is
      supported by the record and the court clearly resolves any disputed
      factual issues, a simple statement of the district court’s conclusion is
      sufficient.

United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc) (internal

citation omitted).

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      Section 3B1.1(c) of the Sentencing Guidelines provides for a two-point

offense level increase for a defendant who was “an organizer, leader, manager, or

supervisor in any criminal activity” that involved fewer than five participants and

was not otherwise extensive. U.S.S.G. § 3B1.1(c). To qualify for this

enhancement, “the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.” U.S.S.G. § 3B1.1, cmt. n.2; see also

United States v. Glover, 179 F.3d 1300, 1302 (11th Cir. 1999) (stating that, for the

§ 3B1.1(c) enhancement to apply, the defendant must have “assert[ed] control or

influence over at least . . . one participant”). “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). Accordingly, a police informant is

not a participant. Id. However, up until a person who is criminally responsible

becomes a police informant, she may be considered a participant. See id.; see also

United States v. Griffin, 945 F.2d 378, 384 n.6 (11th Cir. 1991).

      To be held criminally responsible as a co-conspirator, a person must have

formed an agreement with one or more persons, the object of which was to carry

out an unlawful act or a lawful act by unlawful means. United States v. Arias-

Izquierdo, 449 F.3d 1168, 1182 (11th Cir. 2006). The alleged conspirator must

have known of the purpose of the agreement and must have knowingly and



                                           4
voluntarily entered into the agreement. See United States v. Simpson, 228 F.3d

1294, 1298 (11th Cir. 2000).

      Initially, we note that the district court only made a general finding that the

two-point offense level enhancement, under § 3B1.1(c), applied to Craddock.

Although the record reveals two possible participants in the robbery conspiracy—

Watson and Robinson the district court did not explicitly state who Craddock

managed or supervised.

      To the extent that the district court applied the enhancement based on

Craddock’s role in the offense vis-a-vis Watson, it erred. Watson could not have

qualified as a participant in the offense during the time she acted as a police

informant. Moreover, no evidence indicated that she was criminally responsible

for the robbery conspiracy prior to becoming a police informant. Although Watson

listened to Craddock’s plans to rob the restaurant and he attempted to recruit her,

no evidence showed that she knowingly and voluntarily agreed with him to carry

out the robbery before she went to the police. Therefore, the § 3B1.1 aggravating

role enhancement was not applicable based on Craddock’s interaction with

Watson.

      To the extent that the enhancement was based on Craddock’s role as a

manager or organizer vis-a-vis Robinson, some evidence in the record supported



                                           5
the application of the enhancement. Specifically, both the presentence

investigation report (“PSI”) and facts from the change-of-plea hearing indicated

that Craddock recruited Robinson, instructed him on what to wear, informed him

about the recruitment of a restaurant employee to assist, drove him to the restaurant

to commit the robbery on April 25, 2007, and gave him the gloves, sunglasses, and

firearm for the robbery.

      However, Craddock objected generally that he and Robinson were equally

culpable, and he specifically objected that he did not recruit Robinson, instruct him

on anything, or provide him with a firearm. Because the district court never made

any findings regarding these disputed facts, it is unclear whether it viewed the

undisputed facts—that Craddock drove Robinson to the restaurant on April 25 and

gave him gloves and sunglasses—as sufficient to warrant application of the

aggravating role enhancement.

      Moreover, the record indicates that the district court’s finding on the

enhancement, while not explicit, was made only in regards to Craddock’s

relationship with Watson. The parties and the court were focused on Craddock’s

possible management or supervision of Watson immediately before the district

court made its finding on the enhancement. The context of the sentencing hearing

indicates that the district court’s references to the “great deal of planning involved”



                                           6
and “great deal of conversations,” in finding that the enhancement applied, were

references to Craddock’s planning and conversations with Watson.

      Thus, the district court failed to make findings regarding relevant facts

disputed by Craddock or indicate that its general finding on the § 3B1.1

aggravating role enhancement applied to him due to his management or

organization vis-a-vis Robinson. In light of these circumstances, the district

court’s findings are inadequate for appellate review. Accordingly, we vacate

Craddock’s sentence and remand for the district court to re-consider the

applicability of the aggravating role enhancement and make explicit factual

findings if it chooses to reimpose the enhancement.

      VACATED AND REMANDED.




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