FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 29, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15437

Non-Argument Calendar

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D. C. Docket No. 08-00049-CR-JOF-2-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JON PATTON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(September 29, 2009)

Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.

PER CURIAM:

Jon Patton appeals his sentence of 120 months’ imprisonment, imposed after
he pled guilty to conspiracy to possess with intent to distribute at least 5 kilograms

of cocaine and at least 1 kilogram of heroin, in violation of 21 U.S.C.

§§ 841(b)(1)(A) and 846 . Patton, a security screener who worked for the

Transportation Security Administration (“TSA”) at the Atlanta airport, worked

with Andre Mays, another TSA officer, and Leslie Adgar, a customer service agent

for Delta Airlines, to transport what he believed was cocaine and heroin from the

Atlanta airport to New York’s LaGuardia airport.

On appeal, he argues that the evidence did not support his aggravating role

enhancement, imposed pursuant to U.S.S.G. § 3B1.1(c), because: (1) Mays was not

a participant in the offense; (2) he did not exert control or influence over Mays;

and (3) he did not exert control or influence over Adgar. He also argues that the

second and third transactions should have been filtered out of the sentencing

calculus because the government engaged in sentencing factor manipulation when

it opted to use fake heroin, rather than fake cocaine, for the second transaction, and

when it decided to engage him in a third transaction.

“We apply a two-pronged standard to review claims that the district court

erroneously applied sentencing guidelines adjustments. First, we review the

factual findings underlying the district court’s sentencing determination for clear

error. We then review the court’s application of those facts to the guidelines de

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novo. Although the sentencing guidelines are now advisory after the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), district courts are still required to correctly calculate the

appropriate advisory guidelines range.” United States v. Williams, 527 F.3d 1235,

1247-48 (11th Cir. 2008) (citations omitted). “The district court’s application of §

3B1.1 to determine that a person is a ‘participant’ is a question law that we review

de novo, while we review the underlying factual findings for clear error.” Id. at

1249.

If the defendant was an organizer, leader, manager, or supervisor of the

criminal activity, his offense level may be increased by two. U.S.S.G. § 3B1.1(c).

“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.” Id.,

comment. (n.2). The Guidelines define a “participant” to be “a person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” Id., comment. (n.1).

To determine that an individual is a participant within the meaning of

§ 3B1.1, the court must determine, by a preponderance of the evidence, that the

individual was criminally responsible. Williams, 527 F.3d at 1248-49. Because

the burden of proof at sentencing is different than the burden of proof at trial, a

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defendant may be subject to the role enhancement for managing or directing an

individual who was acquitted of the underlying offense. Id. However, where the

individual’s involvement in the offense is de minimus, and the evidence is

insufficient to show by a preponderance of the evidence that he was criminally

responsible for the offense, the enhancement is improper. Id. at 1249. In Williams,

we held that the defendant’s husband was not a participant because, although the

evidence may have shown that he acted unethically, it “f[e]ll short of

demonstrating by a preponderance of the evidence that [he] was criminally

responsible for his wife’s wire fraud and federal funds theft.” Id.

The Guidelines provide that, in distinguishing a leadership role, the district

court should consider:

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.

U.S.S.G. § 3B1.1, comment. (n.4). “[T]he assertion of control or influence over

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

v. Phillips, 287 F.3d 1053, 1058 (11th Cir. 2002) (internal quotation and citation

omitted).

We have affirmed a defendant’s aggravated role enhancement where there

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was evidence that he recruited others. See United States v. Thomas, 446 F.3d

1348, 1355 n.2 (11th Cir. 2006) (affirming the enhancement because it “was

supported by [the undercover officer’s] testimony that [the defendant] recruited the

others and co-defendant Castillo’s testimony that [the defendant] recruited him.”).

Similarly, we have affirmed the enhancement where the defendant “recruited [an

individual] into the plot, prompted him to purchase weapons, and briefed him on

the bombing plan.” United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir.

2004).

Here, the evidence supports the district court’s application of the role

enhancement. Patton recruited Adgar, a fact stated in the PSI that he did not

dispute. Under Thomas, the recruitment of a co-conspirator is sufficient to warrant

the § 3B1.1(a) enhancement. In addition, Patton was instrumental in planning the

offense; and he also recruited Mays (a participant) and exercised management over

Mays.

“[W]e have considered sentencing manipulation as a viable defense.”

United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing

factor manipulation occurs when the government’s manipulation of a sting

operation, even if insufficient to support a due process claim, requires that the

manipulation be filtered out of the sentencing calculus.” Id. “The standard for

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sentencing factor manipulation is high, even in the circuits where it has been

recognized as a viable defense to the application of a mandatory minimum,” and an

adjustment is appropriate only where the government engages in “extraordinary

misconduct.” Id. at 1270-71.

The government did not engage in “extraordinary misconduct” when it opted

to provide fake heroin, rather than fake cocaine, to Patton, because Patton had

agreed to smuggle drugs through the airport and did not limit the kind of drugs. In

addition, the government did not engage in “extraordinary misconduct” when it

proceeded with the third transaction, given Patton’s references to his ability to

involve other TSA agents in the operation. Accordingly, we affirm the district

court’s finding that the government did not engage in sentencing factor

manipulation in this case.

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

Patton’s sentence.

AFFIRMED.

1

Patton’s request for oral argument is denied. 1

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