United States v. Matthew L. Black

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13461 MARCH 31, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 5:08-cr-00016-WTM-JEG-3
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
MATTHEW L. BLACK,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 31, 2011)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Matthew Black pleaded guilty to conspiracy to commit three robberies, in
violation of Hobbs Act. 18 U.S.C. § 1951. He and two co-conspirators—Andrew
Holt and Amanda Cosgrove—robbed a commercial business and two federally
insured banks. On appeal, Black argues that the district court committed clear
error in sentencing him as an “organizer” or “leader” under U.S.S.G. § 3B1.1(c).
He also contends that his 97-month sentence is substantively unreasonable
because it creates an unwarranted disparity between Black and one of his co-
conspirators, who received a 27-month sentence. After reviewing the record and
the parties’ briefs, we affirm.
I.
We review for clear error the district court’s determination that Black acted
as “an organizer, leader, manager, or supervisor” for the purposes of U.S.S.G. §
3B1.1(c). United States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir.
1999) (en banc). “A finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525 (1948).
The Sentencing Guidelines allow for an increase in the offense level based
on the defendant’s role in a given crime. A two-level enhancement is applied if
the defendant “was an organizer, leader, manager, or supervisor” in the criminal
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activity. U.S.S.G. § 3B1.1(c). In deciding whether such an increase is
appropriate, the district court considers
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.
Id. § 3B1.1 n.4. “There can, of course, be more than one person who qualifies as a
leader or organizer of a criminal association or conspiracy,” however, the
enhancement “does not apply to a defendant who merely suggests committing the
offense.” Id.
This Court has held that “the assertion of control or influence” over a single
individual is sufficient to support a § 3B1.1(c) enhancement. United States v.
Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000). For example, a defendant’s
decision to recruit, prompt others to purchase weapons, and brief another on the
plan details is sufficient to warrant the offense-level increase. United States v.
Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004).
Despite the existence of isolated facts indicating that any given member was
a “leader,” we seriously doubt that it is possible to extend the leadership
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enhancement to every member of a conspiracy, Here, however, we cannot
conclude that the district court clearly erred as Black’s actions sufficiently support
its determination. Black concedes that he “was not a mere follower,” and the pre-
sentence investigation report confirms that. He suggested committing the crime,
and while this alone is insufficient to justify the enhancement, he went further and,
inter alia, enlisted the two other co-conspirators. He involved himself in the
planning and execution of each of the robberies. He encouraged Holt to procure a
gun. Black’s argument that Cosgrove played a greater leadership role does not
foreclose the conclusion that the enhancement is appropriate for Black.
Accordingly, we uphold the district court’s application of the sentence
enhancement.
II.
We review the sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam). The
review is deferential, and a defendant challenging his sentence bears the burden of
showing that his sentence is unreasonable. Id. at 788. At sentencing, the district
court must consider the factors listed in 18 U.S.C. § 3553(a), which include
avoiding unwarranted sentencing disparities between similarly situated
defendants. See 18 U.S.C. § 3553(a)(6). However, there cannot be an
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unwarranted sentencing disparity between defendants that are not similarly
situated. United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009). In other
words, “‘[a] well-founded claim of disparity . . . assumes that apples are being
compared to apples.’” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.
2009) (quoting United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005)) .
Here, Black focuses on the disparity between his sentence and the 27-month
sentence Holt received. Black, however, fails to appreciate that he and Holt are
not similarly situated. Most importantly, Black pleaded guilty to conspiracy to
commit three robberies while Holt pleaded guilty to one robbery. Furthermore,
Holt provided more assistance to the government than Black in an unrelated
investigation, resulting in the government filing a § 5K1.1 substantial-assistance
motion based on “very significant” assistance—rather than “significant”
assistance—on Holt’s behalf. As the two are not similarly situated, Black’s
argument is misguided and fails.
III.
We determine that the district court did not clearly err in sentencing Black
as a “leader” or “organizer” for his role in the three robberies at issue.
Furthermore, the sentence imposed for his criminal conduct is reasonable.
Accordingly, we affirm.
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AFFIRMED.
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