            Case: 12-13636   Date Filed: 05/02/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13636
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:11-cr-00200-WTM-GRS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus


ORESTES ANSELMO FERRER,

                                                          Defendant-Appellant.

                       ________________________

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

                               (May 2, 2013)


Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
               Case: 12-13636     Date Filed: 05/02/2013    Page: 2 of 5


      Orestes Anselmo Ferrer appeals his 60-month sentences that the district

court imposed after he pleaded guilty to one count of conspiracy to manufacture,

possess with intent to distribute, and to distribute marijuana, in violation of 21

U.S.C. § 846, and one count of conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h). On appeal, Ferrer argues that (1) the district

court clearly erred in applying a four-level sentencing enhancement for his

leadership role in the marijuana conspiracy, and (2) his sentences are substantively

unreasonable. After review of the record and consideration of the parties’ briefs,

we affirm.

Aggravating Role Enhancement

      Ferrer contends that the district court erred by imposing a four-level

enhancement under U.S.S.G. § 3B1.1(a) based on the court’s finding that he was

an organizer or leader of the drug conspiracy. Instead, he should have received

only a three-level enhancement under § 3B1.1(b) for being a manager or supervisor

because he was not entitled to a greater share of the profits or the fruit of the

enterprise, as he did not finance any of the grow house operations. Ferrer also

maintains he did not exercise authority over the operation or other individuals

involved in the conspiracy.

      The district court did not clearly error in assessing Ferrer a four-level

leadership role enhancement. See United States v. Caraballo, 595 F.3d 1214, 1231


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(11th Cir. 2010). The Guidelines commentary enumerates seven factors for the

district court’s consideration in differentiating a leadership role from that of a mere

supervisor, including “the claimed right to a larger share of the fruits of the crime,”

and “the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1,

comment. (n.4). Ferrer’s argument mistakenly hinges on the alleged absence of

these two factors. “There is no requirement that all of the considerations have to

be present in any one case,” Caraballo, 595 F.3d at 1231 (quotation omitted), and

the record before the district court amply supported the court’s finding that Ferrer

was a leader or organizer of the conspiracy. At his brother’s trial, Ferrer testified

that he set up and ran a marijuana grow house in Savannah, Georgia, was

responsible for expanding the operation to a second house in Guyton, Georgia, and

was the one who “ma[de] the rules.” Ferrer also referred to the alleged actual

leader of the conspiracy, Mike Maleh, as his “partner.” See U.S.S.G. § 3B1.1,

comment. (n.4) (“There can, of course, be more than one person who qualifies as a

leader or organizer of a criminal association or conspiracy.”).

      The record further demonstrates that Ferrer was responsible for bringing

others into the operation, directing the distribution of marijuana, and was involved

in over 1,000 drug-related phone calls and text messages during the course of the

conspiracy. See Caraballo, 595 F.3d at 1232 (noting that the application of a

leadership role enhancement was supported, in part, by evidence the defendant


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placed 97 phone calls during an alien smuggling operation). On this record, we

cannot say the district court clearly erred in apply the leadership role enhancement.

Substantive Reasonableness

       Ferrer argues his sentences are substantively unreasonable because the

district court did not give him sufficient credit for his substantial assistance to the

Government when departing below the Guidelines pursuant to U.S.S.G. § 5K1.1.

       Contrary to his arguments, Ferrer’s 60-month sentences were substantively

reasonable.1 The district court explained that, but for the Government’s § 5K1.1

motion, the court would have sentenced Ferrer to 78 months’ imprisonment based

on his prior history and willing participation in a large scale marijuana operation.

The court also explained that it had considered the parties’ arguments as well as

the § 3553(a) factors. Given the scope of the conspiracy, Ferrer’s central role in

the operation, his criminal history, and the district court’s articulated reasons for

the sentences, we are not left “with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors” or

that it “arrived at a sentence that lay outside the range of reasonable sentences

dictated by the facts of the case.” United States v. Gibson, 708 F.3d 1256, 1275

(11th Cir. 2013) (quotations and brackets omitted).


       1
          We review the district court’s departure outside the Guidelines range for reasonableness
“in light of the 18 U.S.C. § 3553(a) factors and the reasons stated by the district court for
departing.” United States v. Martin, 455 F.3d 1227, 1236 (11th Cir. 2006).

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Accordingly, Ferrer’s sentences are AFFIRMED.




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