[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11873

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

URIEL FAJARDO-ALBARRAN, 

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:22-cr-00074-JA-PRL-1

____________________

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2 Opinion of the Court 23-11873

Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Uriel Fajardo-Albarran appeals his 276-month sentence for 

one count of conspiracy to possess with intent to distribute 50 

grams or more of methamphetamine and three counts of 

distribution and possession with intent to distribute 50 grams or 

more of methamphetamine. On appeal, he argues that the 

district court erred by applying an aggravating-role enhancement 

under U.S.S.G. § 3B1.1(a) because, he says, there were not five or 

more identified participants in the conspiracy. After careful 

review of the parties’ arguments, we affirm.

We review a district court’s finding regarding a defendant’s 

role in the offense under § 3B1.1 for clear error. United States v. 

Moran, 778 F.3d 942, 979 (11th Cir. 2015). A factual finding is 

clearly erroneous when, in light of the entire record, we are “left 

with the definite and firm conviction that a mistake has been 

committed.” United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 

2009) (quotation marks omitted). “The district court’s choice 

between two permissible views of the evidence as to the 

defendant’s role in the offense will rarely constitute clear error so 

long as the basis of the trial court’s decision is supported by the 

record and does not involve a misapplication of a rule of law.” 

United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016) 

(quotation marks omitted). While we review the facts for clear 

error, the district court’s determination that an individual is a 

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23-11873 Opinion of the Court 3

“participant” under § 3B1.1 is a question of law that we review de 

novo. United States v. Williams, 527 F.3d 1235, 1249 (11th Cir. 

2008). 

Under the sentencing guidelines, a four-level enhancement 

applies 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). Regarding the “otherwise 

extensive” prong, the court must consider “all persons involved 

during the course of the entire offense.” Id. § 3B1.1 cmt. 3. 

Under this prong, the defendant must have been an organizer of 

just one or more other participant. Id. § 3B1.1 cmt. 2; United 

States v. Walker, 490 F.3d 1282, 1301 (11th Cir. 2007). 

“A ‘participant’ under § 3B1.1 is a ‘person who is criminally 

responsible for the commission of the offense but need not have 

been convicted.’” United States v. Zitron, 810 F.3d 1253, 1261 (11th 

Cir. 2016) (quoting U.S.S.G. § 3B1.1 cmt. 1). In assessing whether 

an individual is “criminally responsible,” we may consider any of 

the acts directed by the defendant that were “part of the same 

course of conduct or common scheme or plan as the offense of 

conviction.” Id. at 1261–62 (quotation marks omitted). Thus, it 

is enough if an individual knowingly participates in the criminal 

conduct. Id. at 1262. The defendant may be considered one of 

the participants in counting the number of participants involved in 

the offense. See United States v. Duperval, 777 F.3d 1324, 1337 (11th 

Cir. 2015). A person who “is not criminally responsible for the 

commission of the offense,” such as an undercover law 

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4 Opinion of the Court 23-11873

enforcement officer, is not a participant within the meaning of the 

Guidelines. U.S.S.G. § 3B1.1 cmt. 1. For a court to impose the 

enhancement, the government must establish by a preponderance 

of the evidence that the defendant exerted some control, influence, 

or decision-making authority over another participant in the 

criminal activity. United States v. Martinez, 584 F.3d 1022, 1026–27 

(11th Cir. 2009); U.S.S.G. § 3B1.1 cmt. 2. 

The commentary to § 3B1.1 provides several factors for a 

sentencing court to consider in distinguishing a leadership role 

from a management role: “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 cmt. 4. There is no requirement 

that all the factors be present for the enhancement to apply, and 

there may be more than one person who qualifies as a leader. Id.; 

Martinez, 584 F.3d at 1026. 

In making the ultimate determination of the defendant’s 

role in the offense, the sentencing judge has no duty to make 

specific subsidiary factual findings. United States v. De Varon, 

175 F.3d 930, 939 (11th Cir. 1999) (en banc). “So long as the 

district court’s decision is supported by the record and the court 

clearly resolves any disputed factual issues, a simple statement of 

the district court’s factual conclusion is sufficient.” Id. (emphasis 

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23-11873 Opinion of the Court 5 

omitted). In determining the defendant’s role, first, “the district 

court must measure the defendant’s role against the relevant 

conduct for which [he] was held accountable at sentencing.” Id. at 

945. Second, the district court must measure the defendant’s role 

against the other discernable participants in the relevant 

conduct. Id. at 944–45. And we have noted that the

non-exhaustive list of factors outlined in the amended commentary 

acts to clarify what a court should consider when making role 

determinations while still embracing the approach from De Varon. 

United States v. Cabezas-Montano, 949 F.3d 567, 606 (11th Cir. 2020) 

(quotation marks omitted). 

Here, Fajardo-Albarran cannot show that the district court 

erred in imposing a four-level role enhancement pursuant to 

U.S.S.G. § 3B1.1(a), because the government showed by a 

preponderance of the evidence that he was an organizer or leader 

of drug-trafficking activity that involved five or more participants 

or was otherwise extensive. The district court properly applied 

Fajardo-Albarran’s conduct to the seven factors that we consider 

when determining if a defendant is an organizer or leader and 

found that nearly all the criteria weighed in favor of the role 

enhancement. See U.S.S.G. § 3B1.1, cmt. 4; see also Martinez, 584 

F.3d at 1026–28. At his trial, the government provided evidence 

that Fajardo-Albarran exercised decision-making authority over at 

least one of his co-conspirators, his brother Zuriel; was involved 

with distribution of the drugs; obtained the drugs personally and 

through Zuriel; fronted drugs to those he supplied; traveled to 

Atlanta and Mexico as part of the conspiracy; sent Zuriel to Texas 

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6 Opinion of the Court 23-11873

to obtain drugs; and recruited at least two participants. This 

evidence demonstrates Fajardo-Albarran’s planning and 

organization, decisionmaking authority and control of others, and 

high degree of participation and leadership nature in the drugtrafficking activity. Even if the evidence did not support a finding 

that Fajardo-Albarran claimed a right to the larger share of the 

profits of the drug sales, the enhancement does not require that 

each factor be present.

The district court also properly determined that the 

conspiracy involved five or more participants, as trial testimony and 

evidence presented established at least seven named and several 

unnamed individuals were participants in the conspiracy, which 

exceeds the required five participants. For example, the record 

reveals that Fajardo-Albarran had an ongoing relationship with

witness Heather Hutchinson wherein he would front several 

ounces of methamphetamine to her each week, and FajardoAlbarran concedes that she was a participant. Trial testimony and 

exhibits support that a government confidential source, Robert 

Waldron, participated in controlled buys with Fajardo-Albarran, 

and that on several occasions Waldron was fronted drugs by 

Fajardo-Albarran outside the scope of his government 

cooperation. While Fajardo-Albarran argues that Waldron could 

not be a participant because he acted as a government agent, 

Waldron exceeded the scope of his work as a confidential source

by participating in at least five transactions with Fajardo-Albarran 

without law enforcement’s knowledge. Additionally, text and 

Facebook messages entered into evidence showed that FajardoUSCA11 Case: 23-11873 Document: 26-1 Date Filed: 03/21/2024 Page: 6 of 7
23-11873 Opinion of the Court 7

Albarran provided drugs on credit to two other individuals and that 

Fajardo-Albarran recruited another two individuals to sell drugs for 

him. Testimony and trial exhibits revealed that another 

participant, Kike Fajardo, and Fajardo-Albarran discussed sources 

of supply in Atlanta, coordinated the sales of methamphetamine, 

and brokered deals. Moreover, Fajardo-Albarran concedes that 

his brother Zuriel was a participant. 

In conclusion, the district court not err by applying a

four-level aggravating role enhancement because the evidence 

showed that Fajardo-Albarran was an organizer or leader of drugtrafficking activity that involved five or more participants or was 

otherwise extensive. Further, the court was not required to make 

a specific factual finding with respect to the identity of each 

participant in the scheme. De Varon, 175 F.3d at 939.

Accordingly, we affirm.

AFFIRMED.

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