FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13222

Non-Argument Calendar

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D. C. Docket No. 07-00107-CR-ORL-28-GJK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIX A. HERNANDEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(February 19, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Felix A. Hernandez appeals his 135-month sentence for conspiracy to
possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.

On appeal, Hernandez argues for the first time that the government violated

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), at

sentencing by failing to provide him with a law enforcement agent’s prior

testimony in which the agent testified that a codefendant, Ricardo Enrique Perlaza,

received $500 per box of cocaine. Hernandez contends that the testimony would

have impeached other witnesses, who testified at his sentencing hearing that

Perlaza received less than $500 per box of cocaine and that Hernandez received

compensation for Perlaza’s participation in the conspiracy. He also asserts that the

district court erred by imposing a two-level enhancement, pursuant to U.S.S.G.

§ 3B1.1(c), based on a finding that he managed Perlaza, and, thereby, disqualifying

him from a safety-valve reduction.

I.

We review a Brady claim not presented to the district court for plain error.

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2004). To satisfy plain

error review, an appellant must show there was an error that was plain that affected

the appellant’s substantial rights and affected the fairness and integrity of the

proceeding. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123

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L.Ed.2d 508 (1993).

In order to establish constitutional error in violation of Brady, a defendant

must show:

(1) that the Government possessed evidence favorable to the

defendant (including impeachment evidence); (2) that the defendant

did not possess the evidence nor could he have obtained it himself

with any reasonable diligence; (3) that the prosecution suppressed the

favorable evidence; and (4) that had the evidence been revealed to the

defense, there is a reasonable probability that the outcome of the

proceedings would have been different.

United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). The government is

not required to furnish a defendant with exculpatory evidence that is fully available

through the exercise of due diligence. Wright v. Hopper, 169 F.3d 695, 702 (11th

Cir. 1999).

Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error in this respect. Even if we assume arguendo that Brady

applies at sentencing and protects a defendant who, like Hernandez, pled guilty, we

still conclude that the government did not violate Brady by failing to provide the

evidence. First, the statement was not necessarily favorable to Hernandez because

Perlaza testified that Hernandez paid him $250 to $500 per parcel of cocaine.

Second, there was no evidence that the government suppressed the information, as

the sentencing transcript containing the statement was filed with the district court

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two days before the conclusion of Hernandez’s sentencing hearing. Third, the

evidence was not material because the testimony did nothing to indicate that

Hernandez did not recruit Perlaza or that he did not organize a relationship in the

conspiracy with Perlaza. See Wright, 169 F.3d at 702 (finding that where

testimony was neither suppressed nor material there was no Brady violation).

II.

A district court’s findings of fact are reviewed for clear error; however, the

district court’s application of the Guidelines to its factual findings is reviewed

de novo. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998).

The Sentencing Guidelines provide for a two-level increase in a defendant’s

offense level if he was “an organizer, leader, or supervisor in any criminal

activity . . . .” U.S.S.G. § 3B1.1(c). “[T]he assertion of control or influence over

only one individual is enough to support a § 3B1.1(c) enhancement.” United

States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000); see also U.S.S.G. § 3B1.1,

comment. n.2 (“To qualify for an adjustment under this section, the defendant must

have been the organizer, leader, manager, or supervisor of one or more other

participants.”). Factors to consider in determining whether the defendant qualifies

for the § 3B1.1(c) role enhancement include: (1) the exercise of decision making

authority; (2) the nature of participation in the commission of the offense; (3) the

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recruitment of accomplices; (4) the claimed right to a larger share of the fruits of

the crime; (5) the degree of participation in planning or organizing the offense;

(6) the nature and scope of the illegal activity; and (7) the degree of control and

authority exercised of others. U.S.S.G. § 3B1.1, comment. n.4.

The safety-valve provision of U.S.S.G. § 5C1.2 implements 18 U.S.C.

§ 3553(f), and allows a court to sentence a defendant without regard to the

statutory mandatory minimum sentence if the defendant meets five criteria. United

States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000). To be eligible for a

safety-valve reduction, the defendant must show that: (1) he does not have more

than one criminal history point; (2) he did not use violence or threats of violence or

possess a firearm in connection with offense; (3) the offense did not result in death

or serious bodily injury; (4) he was not an organizer, leader, manager, or

supervisor of the offense “as determined under the sentencing guidelines” and was

not engaged in a continuing criminal enterprise; and (5) he truthfully provided the

government all information and evidence about the offense. 18 U.S.C.

§ 3553(f)(1)-(5); U.S.S.G. § 5C1.2(a)(1)-(5). The government bears the burden of

proving a U.S.S.G. § 3B1.1(c) enhancement. United States v. Lozano-Hernandez,

89 F.3d 785, 791 (11th Cir. 1996). However, the defendant bears the burden of

proving his eligibility for the safety-valve reduction. United States v. Cruz, 106

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F.3d 1553, 1557 (11th Cir. 1997).

Here, the record shows that the district court did not clearly err in finding

that Hernandez was an organizer-manager in the conspiracy under U.S.S.G.

§ 3B1.1(c), as witnesses testified that Hernandez recruited at least one accomplice

and that he was compensated for Perlaza’s participation in the conspiracy.

Additionally, the government presented evidence that Hernandez was “high up in

the organization,” not only accepting drug parcels, but also delivering drug

proceeds from Orlando to Puerto Rico. With Hernandez’s categorization as a

§ 3B1.1(c) manager, the court did not err in finding that he failed to meet the

safety-valve requirements. Accordingly, we affirm Hernandez’s 135-month

sentence.

AFFIRMED.

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