                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                        MAY 1, 2008
                                                    THOMAS K. KAHN
                              No. 07-13916
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                D. C. Docket No. 06-00125-CR-ORL-19-KRS

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   versus

DELVIN BERNARD FLOWERS,
a.k.a. Nob,

                                                     Defendant-Appellant.

                        ________________________

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

                                (May 1, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Delvin Bernard Flowers appeals his 141-month sentence, imposed
after he pled guilty to conspiracy to possess with intent to distribute and to

distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A),

and 841(b)(1)(C). Flowers makes two arguments on appeal. First, he contends

that the district court erred by enhancing his sentence four levels under U.S.S.G.

§ 3B1.1(a) for a leadership role in the offense. Flowers argues that there was no

evidence that he supervised five or more participants, directed or procured the aid

of underlings, or that his status was anything more than that of a supplier or

distributor. Second, Flowers argues that the district court erred because, once

Flowers challenged his prior convictions at sentencing, the court should have

directed the government to meet its burden of showing that Flowers’s convictions

were not misdemeanors, as Flowers had argued they were. Further, he argues that,

but for the error, the district court would have departed for substantial assistance

from a criminal history category II rather than III.

                       I. Leadership Role under § 3B1.1(a)

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

level due to his status as a leader or organizer 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 government bears the burden of proving by a

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



                                           2
offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).

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

on the defendant’s aggravating role in the offense. U.S.S.G. § 3B1.1. A four-level

increase is applied if the defendant “was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise extensive.”

U.S.S.G. § 3B1.1(a). In making the role-enhancement 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). “In assessing whether an organization is

‘otherwise extensive,’ all persons involved during the course of the entire offense

are to be considered.” Id., comment. (n.3).

      “[S]ection 3B1.1(a)’s plain language requires both a leadership role and an

extensive operation.” United States v. Yates, 990 F.2d 1179, 1181 (11th Cir.

1993). It requires “the exercise of some authority in the organization, the exertion

of some degree of control, influence, or leadership,” and a mere “seller/buyer

relationship” or the defendant’s status as a supplier is insufficient to justify

imposition of an upward departure under § 3B1.1(a). Id. at 1182 (quoting United

                                            3
States v. Brown, 944 F.2d 1377, 1385 (7th Cir. 1991)).

      An “otherwise extensive” operation does not require a set number of

criminally responsible participants. United States v. Holland, 22 F.3d 1040, 1045

(11th Cir. 1994). However, to demonstrate that the defendant occupied a

leadership role under the “otherwise extensive” standard, “there must be at least

one participant in addition to the defendant.” Id. at 1045, n.8.

      The record shows that Flowers was more than a mere supplier. He exercised

decision-making authority and had a high degree of participation in the conspiracy,

as well as extensive control and authority over others in what the district court

properly found to be an “otherwise extensive” drug distribution conspiracy. The

district court, therefore, did not commit clear error in imposing a four-level

enhancement to Flowers’s offense level based on his role in the conspiracy under

U.S.S.G. § 3B1.1(a).

                        II. Criminal History Calculations

      We review issues raised for the first time on appeal using the plain error

standard. United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776,

(1993). Under plain error review, there must be (1) an error, (2) that is plain, and

(3) that affects substantial rights. Olano, 507 U.S. at 732, 113 S. Ct. at 1776.

      Section 4A1.1 of the Sentencing Guidelines states, in part, that to determine



                                           4
a criminal history category: (a) three points are added for each prior sentence of

imprisonment exceeding one year and one month; (b) two points are added for

each prior sentence of at least 60 days’ imprisonment; and (c) one point is added

“for each prior sentence not counted in (a) or (b), up to a total of [four] points for

this item.” U.S.S.G. § 4A1.1(a)-(c). “Prior sentence” means “any sentence

previously imposed upon adjudication of guilt, . . . for conduct not part of the

instant offense.” U.S.S.G. § 4A1.2(a)(1). “[W]hen a defendant challenges a

factual basis of his sentence, the government has the burden of establishing the

disputed fact by a preponderance of the evidence.” United States v. Ndiaye, 434

F.3d 1270, 1300 (11th Cir. 2006) (citation omitted).

      Section 4A1.3(b)(1) states, in pertinent part:

      If reliable information indicates that the defendant’s criminal history
      category substantially over-represents the seriousness of the
      defendant’s criminal history or the likelihood that the defendant will
      commit other crimes, a downward departure may be warranted.

U.S.S.G. § 4A1.3(b)(1) (emphasis added). We do not normally review the district

court’s denial of a downward departure, except in cases where the district court

incorrectly believed that it did not have the authority to depart. United States v.

Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003). “[W]e assume that the sentencing

court understood it had authority to depart downward” when the record does not

indicate any ambivalence. United States v. Chase, 174 F.3d 1193, 1195 (11th

                                            5
Cir.1999).

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court did not commit plain error in failing to direct the government to

meet its burden of showing that Flowers’s prior convictions were not in fact

misdemeanors or in its calculation of Flowers’s criminal history category. Because

the issue of whether Flowers’s past offenses were misdemeanors was never in

dispute, and because the district court properly applied § 4A1.1(c) of the guidelines

to Flowers’s prior convictions, there was no plain error. Further, we conclude that

the district court properly exercised its discretion to deny Flowers a downward

departure.

      For the aforementioned reasons, we affirm Flowers’s sentence.

      AFFIRMED.




                                           6
