United States v. Dondre Green

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16625 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 15, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 08-60065-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONDRE GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 15, 2009)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Dondre Green appeals his 57-month sentences for conspiracy to commit
access device fraud, in violation of 18 U.S.C. § 371, and theft of mail by a postal
employee, in violation of 18 U.S.C. § 1709. On appeal, Green argues that the
district court erred by giving him a four-level enhancement as a leader/organizer
because he did not have an organizational or supervisory role in the offense, but
was merely a postal employee who stole credit cards out of the mail and provided
them to others. After careful review, we affirm.
“A district court’s enhancement of a defendant’s offense level based on his
role as an organizer or leader is a finding of fact reviewed for clear error.” United
States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). “The government bears
the burden of proving by a preponderance of the evidence that the defendant had an
aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226
(11th Cir. 2003).
The Sentencing Guidelines provide that a four-level enhancement may be
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 determining whether a § 3B1.1(a) enhancement applies, the district
court should consider: “(1) exercise of decision-making authority, (2) nature of
participation in the commission of the offense, (3) recruitment of accomplices, (4)
claimed right to a larger share of the fruits of the crime, (5) degree of participation
in planning or organizing the offense, (6) nature and scope of the illegal activity,
and (7) degree of control and authority exercised over others.” Rendon, 354 F.3d
2at 1331-32 (quotation omitted) (citing U.S.S.G. § 3B1.1 cmt. (n.4)). “There can, of
course, be more than one person who qualifies as a leader or organizer of a
criminal association or conspiracy.” U.S.S.G. § 3B1.1 cmt. (n.4). The defendant
does not have to be the “sole leader or kingpin of the conspiracy in order to be
considered an organizer or leader within the meaning of the Guidelines.” Rendon,
354 F.3d at 1332 (quotation omitted). A leader/organizer enhancement may apply
where the defendant was the leader or organizer of only one person. Yeager, 331
F.3d at 1226-27. The district court’s application of a § 3B1.1(a) enhancement is
given deference on appeal. Rendon, 354 F.3d at 1332.
On this record, the district court did not clearly err by giving Green a
leader/organizer enhancement, pursuant to U.S.S.G. § 3B1.1(a), because the
government established by a preponderance of the evidence that he had an
aggravating role in the offence. See Yeager, 331 F.3d at 1226. The record shows
that Green had a leader/organizer role in the offense, as he stole at least 25 credit
cards from people on his mail delivery route and then distributed those cards to at
least five people, including individuals who were unconnected. Green also
received compensation, in the form of electronics and gift cards, for his
distribution of stolen credit cards.
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The fact that other co-conspirators recruited people did not negate Green’s
leadership or organizational role in the offense, as there can be more than one
leader/organizer and it was Green who provided stolen credit cards to these co-
conspirators, as well as to other individuals. See U.S.S.G. § 3B1.1 cmt. (n.4).
Furthermore, the fact that a co-conspirator distributed counterfeit identification
cards to others and had a criminal history had no impact on Green’s
leader/organizer enhancement, which was based only on Green’s distribution of
stolen credit cards. Accordingly, we affirm Green’s 57-month sentences.
AFFIRMED.
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