[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 15777 Non

- Argument Calendar

________________________ D.C. Docket No. 8:17

- cr - 00076

- CEH

- TBM

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus HERALDO MOJICA, JR., Defendant

- Appell ant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ ( October 26, 2018 )
Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Case: 17-15777 Date Filed: 10/26/2018 Page: 1 of 92 Heraldo Mojica appeals his 120

- month sentence for co nspiracy to possess and possession of 500 grams or more of methamphetamine with intent to distribute

. At sentencing , t he district court found Mr. Mojica was an organizer, leader, manager, or supervisor in his criminal offense , thereby enhancing his
senten ce under U.S.S.G. § 3B1.1 and making him ineligible to receive “safety

valve” relief under U.S.S.G. § 5C1.2

. We affirm Mr. Mojica ’s sentence.

I

In January of 2017, federal agents received information from a confidential

source (“CS”) that Mr. Mojica was engaged in the distribution of methamphetamine. On January 20, 2017, Mr. Mojica , his co

- conspirator Miguel Sandoval , and others met with the CS at a restaurant. During th e meeting, Mr. Mojica agreed to sell methamphetamine to the CS later in the week. Working alongside federal agents, the CS later contacted Mr. Mojica to arrange the sale , and Mr. Mojica agreed to complete the exchange at a hardware store on January 25, 2017. Mr. Mojica informed the CS that the other person present at th e restaurant meeting , Mr. Sandoval, would also attend the exchange

. On January 25, 2017, federal agents observed Mr. Sandoval walk through
the hardware st ore parking lot , approach Mr. Mojica

— who was sitting in a separate vehicle

— and hand Mr . Mojica a package wrapped in gy m shorts. The

Case: 17-15777 Date Filed: 10/26/2018 Page: 2 of 93 agents approached Mr. Mojica and Mr. Sandoval and found 994 grams of methamphetamine in side the package

.
Mr. Mojica and Mr. Sandoval were arrested and indicted for conspiracy to possess 500 grams or more of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count I), and possession of 500 grams or more of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count II)

. Mr. Mojica ple d guilty to both
counts. At the sentencing hearing, Mr. Sandoval testified that Mr. Mojica instructed him on when, where , and how to make the exchange and what kind of car the buyer would be in . Mr. Sandoval also testified that Mr. Mojica observed him attempt to make the exchange, and that, when Mr. Sandoval could not locate the

car of the buyer , Mr. Mojica took back the methamphetamine to deliver it himself. According to the record, Mr. Mojica was t o pay Mr. Sandoval $500 for his part in the exchange.
Based on that evidence, t he district court found that Mr. Mojica was an organizer, leader, manager, or supervisor of one or more participants in the offense pursuant to § 3B1.1 (c), c mt . n.2

. Consequently, Mr. Mojica received a
two

- level increase in his offense level and did not meet the requir ements of §

Case: 17-15777 Date Filed: 10/26/2018 Page: 3 of 94 5C1.2(a)(1

– 5) for “safety valve” relief. To support its finding, the district court noted that Mr. Mojica plan ned and organized the exchange

— through his communications with the CS

— and that Mr. Mojica supervised Mr. Sandoval by following him to the hardware store and watching him attempt to find the buyer’s

car . T he district court also noted that Mr. Mojica was to receive a greater share of the profits from the sale than Mr. Sandoval.
On appeal, Mr. Mojica argues that the district court erred by enhancing his sentence under § 3B1.1 (c) for having a n organizing, leadership , or supervisory role in the offense and by denying “saf ety valve” relief under § 5C1.2(a)( 4 )

.

II We review a district court’s factual finding, i ncluding a defendant’s role in the offense , for clear error. See United States v. Mesa , 247 F.3d 1165, 1168 (11th Cir. 2001). In doing so, we accept the district court’s credibility determination unless it is “contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it.” United States v. Ramirez

Chilel , 289 F.3d 7 4 4, 749 (11th Cir. 2002). We review the district court’s application of the S entencing G uidelines to the facts de novo

. See Mesa , 247 F.3d
at 1168

. Case: 17-15777 Date Filed: 10/26/2018 Page: 4 of 95 In relevant part, § 3B1.1(c) of the S entencing G uidelines provides f or a two

level enhancement “[i]f the defendant was an organize r , leader, manager, or supervisor ” in the criminal offense

. To qualify for this enhancement , the defendant “must have been the organizer, leader, manager, or superviso r of one or more participants.” § 3B1.1 c m t. n.2

. Factors a court should consider in determining whether the defendant was an organizer, leader, manager , or supervisor include: (1) “the exercise of decision making authority,” (2) “the nature of participation in the commission of the offense,” (3) “the recruitment o f 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 ill egal activity,” and (7) “the degree of control and authority exercised over others.” § 3B1.1 cmt. n. 4

. All of the enumerated factors , however, need not be present for the district court to find that the defendant was

an organizer, leader, manager, or supervisor

. See United States v. Ramirez , 426 F.3d 1344, 1356 (11th Cir. 2005).
As relevant here, § 5C1.2(a)(4) of the Sentencing Guidelines provides that a district court shall impose a sentence according to the applicable guidelines without regard to a statutory minimum if, among other things, “the defendant is

n ot an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines

. . . . ” § 5C1.2(a)(4) (emphasis

Case: 17-15777 Date Filed: 10/26/2018 Page: 5 of 96 added) . This g uideline is commonly called the “safety

- valve” provision. See , e.g. , United States v. Brownlee , 204 F.3d 1302, 1304 (11th Cir. 2000).

III

Mr. Mojica argues that the district court erred because the government did not sufficiently prove that he acted in a leadership or supervisor y capacity during his criminal offense

. Mr. Mojica specifically argues t hat the district court should not have credited Mr. Sandoval’s testimony that , at the initial restaurant meeting, noise from the restaurant’s TV’s prevented Mr. Sandoval from understanding the purpose of the meeting and the plan to exc hange drugs

. The government responds that several facts in the record support the district
court’s find ing that Mr. Mojica acted as a n organizer, leader , or superviso r. First,
Mr. Sandoval’s testimony that Mr. Mojica arranged the sale was corroborated by
Mr. Mojica’s own admissions and a recorded phone call, which showed that Mr. Mojica was respons ible for communicating with the CS and negotiating the price

. Second , Mr. Mojica planned to supervise the exchange by “ watching [ Mr. Sandoval] t o make sure [he] did the transaction right.” D.E

. 137 at 11

. Third, when Mr. Sandoval could not find the buyer in the hardware store parking lot, Mr. Sandoval returned the methamphetamine to Mr. Mojica so that Mr. Mojica could complete the exchange himself

.

Case: 17-15777 Date Filed: 10/26/2018 Page: 6 of 97 We conclude that the district court did not clearly er r in finding that Mr. Mojica act ed as an organizer, leader , manager, or supervisor in the criminal offense

. Evidence in the record, such as Mr. Sandoval’s testimony, the recorded telephone conversation, and Mr. Mojica’s own admissions support the district
court’ s finding that Mr. Mojica planned the exchange, explained to Mr. Sandoval his role, supervised the exchange, and attempted to take the lead when Mr. Sandoval could not locate the buy er’s car

. Mr. Mojica points to nothing in the record to establish that this evidence was so “contrary to nature” or improbable that no reasonable factfinder could accept it. See Ramirez

- Chilel , 289 F.3d at 749

. Mr. Mojica may disagree with the court’s interpretation of the evidence , but , “[w]here evidence has two possible interpretations, the district court’s decision cannot be clearly erroneous.” United States v. Foster , 155 F.3d 1329, 1331 (11th Cir. 1998). Therefore, the district court did not clea rly err by rely ing on Mr. Sandoval’s testi mony and other corroborative evidence to find that Mr. Mojica acted as an organizer, leader , or supervisor under the Sentencing Guidelines

. And this finding precluded “safety

- valve” relief under § 5C1.2(a)(4)

.
Mr. Mojica also argues that the district court improperly relied on its finding that Mr. Mojica “claimed right to a larger share of the fruits of the crime”

– — another factor used to establish that a defendant had a leadership role under the
G uidelines. See § 3B1.1 c m t. n.4

. Mr. Mojica asserts that the record does not Case: 17-15777 Date Filed: 10/26/2018 Page: 7 of 98 establish the cost of the methamphetamine sold , and therefore, there is no evidence to calculate the exact profit Mr. Mojica would have made on the sale

. T his argument is unpersuasive.

Evidence in the record, including a recorded telephone conversation, state s that the CS was to pay Mr. Mojica $15,000 for the methamphetamine. At sentencing, t he prosecutor and the district court judge also reference d the fact that

“ Mr. Sandoval was only getting $500 out of the $15,000 plus that was going to be paid for the methamphetamine.” Mr. Mojica did not object to these reference s to the purchase price , and he submitted no evidence to contradict the $15,000 figure

. Based on the large disparity between the purchase price and Mr. Sandoval ’s expected share , the district court had sufficient evidence to find that it was more likely than not that Mr. Mojica would have retain ed “a larger s hare of the fruits of the crime

. ” § 3B1.1 cmt. n.4

. See Mesa , 247 F.3d at 1168 (finding that the defendant claimed “ a greater share of the profits, ” as he was “the source of the [drugs sold] ” )

.
Even if the district court could not determine that Mr. Mojica would receive a larger share of the profits without calculating his exact profit margin , that would not be dispositive. A district court is not required to rely on every factor in the comments to § 3B1.1 to find that the defendant acted as an organizer, leader, manager, or supervisor

. S ee Ramirez , 426 F.3d at 1356. In t his case, other

Case: 17-15777 Date Filed: 10/26/2018 Page: 8 of 99 factors

— such as Mr. Mojica organizing and supervising the exchange

— sufficiently support the district court’s finding

.
IV Mr. Mojica’s judgment and commitment o rder does contain a clerical error

. “[I]t is fundamental error for a court to enter a judgment of conviction against a defendant who has not been charged, tried, or found guilty of the crime recited in the judgment.” United States v. Massey , 443 F.3d 814, 822 (11th Cir. 2006). And Rule 36 provides the mechanism to “ cor rect a clerical error in a judg ment, order, or other part of the record

. . . . ” Fed. R. Crim. P. 36. We apply Rule 36 to correct a clerical error in the judgement regardless of whether the error prejudice d the defendant

. See United States v. James , 642 F.3d 1333, 1343 (11th Cir. 2011) ; United States v. Portillo , 363 F. 3d 1161, 1164 (11th Cir. 2004)

.
The judgment and commitment order states th at Mr. Mojica was convicted of possession with intent to d istribute 500 grams or more of a mixture of methamphetamine, “in violation of 21 U.S.C. §§ 814 (a)(1) and 841(b)(1)(A).”
D.E. 118 at 1 (emphasis added). The correct statute, however, is 21 U.S.C. § 841(a)(1). W e remand for the limited purpose of correcting that error. AFFIRMED in PART; VACATED AND REMANDED in PART.

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