United States v. Perry Leonard Johnson ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13667 JUNE 19, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00007-CR-5-RS-LB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PERRY LEONARD JOHNSON,
a.k.a. P.J.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 19, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Perry Johnson appeals his 236-month sentence for conspiracy to possess with
intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§
841(a)(1), 846, and possession with intent to distribute five grams or more of cocaine
base, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). On appeal, Johnson
argues that the district court erred by enhancing his offense level by two levels,
pursuant to U.S.S.G. § 3B1.1(c), based on his managerial role. After careful review,
we affirm.
We review a district court’s factual findings regarding a defendant’s role in the
offense for clear error. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir.
2005). We do not require a district court “to make any specific findings other than
the ultimate determination of the defendant's role in the offense.” United States v.
DeVaron, 175 F.3d 930, 940 (11th Cir. 1999) (en banc).
Section 2D1.1 of the United States Sentencing Guidelines assigns: (1) a base
offense level of 38 to a defendant who is accountable for 1.5 or more kilograms of
cocaine base; and (2) a base offense level of 32 to a defendant who is accountable for
at least 50 grams but less than 150 grams of cocaine base. U.S.S.G. § 2D1.1(c)(1)(4)
(2006). Section 3B1.1(c) of the United States Sentencing Guidelines provides for a
two-level enhancement if a “defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in [subparagraphs] (a) or (b).”
U.S.S.G. § 3B1.1(c). Among other factors, a court should consider:
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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. comment. (n.4). However, each factor does not need to be present to support the
enhancement. Ramirez, 426 F.3d at 1356.
In the instant case, the record evidence amply supports the enhancement.
Notably, Johnson recruited and directed accomplices in the conspiracy. Cf. United
States v. Jimenez, 224 F.3d 1243, 1251 (11th Cir. 2000) (affirming § 3B1.1(c)
enhancement where defendant asserted control or influence over co-conspirator
during the course of the conspiracy); United States v. Ramsdale, 61 F.3d 825,
830 (11th Cir. 1995) (affirming § 3B1.1(c) enhancement where the defendant
recruited an accomplice who followed the defendant’s instructions and received drugs
at a discount as compensation). He also claimed a greater share of the proceeds,
planned offense conduct, and was involved in all levels of the offense conduct. On
this record, the district court did not clearly err by applying the two-level
enhancement under U.S.S.G. § 3B1.1(c).
AFFIRMED.
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