United States v. Andrew M. Wedderburn ( 2012 )


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  •                   Case: 11-15937         Date Filed: 07/10/2012   Page: 1 of 4
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                          FILED
    U.S. COURT OF APPEALS
    ________________________                 ELEVENTH CIRCUIT
    No. 11-15937                        JULY 10, 2012
    Non-Argument Calendar                       JOHN LEY
    ________________________                       CLERK
    D.C. Docket No. 2:06-cr-00033-JES-SPC-1
    UNITED STATES OF AMERICA, lllllllllllllllllllllllllll
    lllllllllllll
    Plaintiff-Appellee,
    versus
    ANDREW M. WEDDERBURN,
    a.k.a. Generator,
    a.k.a. Genuine,llllllllllllllllllllllllllllllllllllllll
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (July 10, 2012)
    Before EDMONDSON, BARKETT and PRYOR, Circuit Judges.
    PER CURIAM:
    Case: 11-15937     Date Filed: 07/10/2012    Page: 2 of 4
    Andrew Wedderburn appeals his within-guideline total sentence of 132
    months’ imprisonment, after pleading guilty to 1 count each of conspiracy to import
    1,000 kilograms or more of marijuana into the United States, 21 U.S.C. ' 963;
    conspiracy to possess with the intent to distribute 1,000 kilograms or more of
    marijuana, 21 U.S.C. ' 846; and possession with intent to distribute 1,000 kilograms
    or more of marijuana, 21 U.S.C. ' 841(a)(1) and 18 U.S.C. ' 2. On appeal,
    Wedderburn argues that the district court committed clear error in imposing a
    three-level enhancement under U.S.S.G. ' 3B1.1(b), after determining that
    Wedderburn was a supervisor or manager in the smuggling operation. We review
    the district court’s decision to apply an aggravating role enhancement for clear error.
    United States v. Ramirez, 
    426 F.3d 1344
    , 1355 (11th Cir. 2005). “For a factual
    finding to be clearly erroneous, this Court, after reviewing all of the evidence, must
    be left with a definite and firm conviction that a mistake has been committed.”
    United States v. Rodriguez-Lopez, 
    363 F.3d 1134
    , 1137 (11th Cir. 2004) (quotations
    omitted). “Where the evidence has two possible interpretations, the district court’s
    choice between them cannot be clearly erroneous.” United States v. Foster, 
    155 F.3d 1329
    , 1331 (11th Cir. 1998).
    Section 3B1.1(b) of the Sentencing Guidelines provides for a three-level
    increase to a defendant’s offense level if the defendant “was a manager or supervisor
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    (but not an organizer or leader) and the criminal activity involved five or more
    participants or was otherwise extensive.” U.S.S.G. ' 3B1.1(b). The government
    bears the burden of establishing, by a preponderance of the evidence, a defendant’s
    aggravating role in the offense. United States v. Yates, 
    990 F.2d 1179
    , 1182 (11th
    Cir. 1993). Recruitment of co-conspirators and arrangement for the transportation
    of the drugs is indicative of a managerial or supervisory role. United States v.
    Perry, 
    340 F.3d 1216
    , 1217-18 (11th Cir. 2003). A defendant’s subordinate role to
    another conspirator does not absolve him of his supervisory role in coordinating and
    managing the delivery and transportation of a drug shipment. United States v.
    Jones, 
    933 F.2d 1541
    , 1542, 1546-47 (11th Cir. 1991) (upholding a ' 3B1.1(b)
    enhancement where the evidence showed that the defendant helped other
    participants “plan the operational aspects of the [drug] smuggling effort,” and made
    various unilateral decisions regarding landing and loading locations and the timing
    of the smuggling trips).
    The district court’s finding that Wedderburn was a manager or supervisor
    under U.S.S.G. ' 3B1.1(b) was supported by the record developed during an
    evidentiary hearing at sentencing. In response to questioning by the court, DEA
    Special Agent Paul Mangone summed up Wedderburn’s participation in the
    criminal scheme as follows:
    3
    Case: 11-15937     Date Filed: 07/10/2012   Page: 4 of 4
    During each delivery . . . Mr. Wedderburn was always the person that
    was consulted. He was the one person that, when he was not there, we
    always made sure that we made a phone call to Jamaica, to make sure.
    That everyone was concerned [with] what Mr. Wedderburn wanted to
    do. It wasBwhether it was Mr. Hanast, whether it was Mr. Finkel, or
    Gentry, whether it was Mr. Riddick, they always deferred, when it
    came to certain things, to Mr. Wedderburn.
    The court credited Mangone’s testimony. Because the evidence showed that
    Wedderburn helped direct and plan the smuggling operation, Wedderburn has not
    shown that the district court clearly erred in applying the three-level enhancement.
    Accordingly, we affirm.
    AFFIRMED.
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