FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 May 10, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15031

Non-Argument Calendar

________________________

D. C. Docket No. 04-60301-CR-DTKH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FRANK EUGENE KERLEY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 10, 2007)

Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:

After pleading guilty, Frank E. Kerley appeals his conviction and sentence
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for conspiracy to possess with intent to distribute 100 or more marijuana plants, in

violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. After review, we

affirm.

I. BACKGROUND

Kerley pled guilty pursuant to an oral plea agreement. During the plea

hearing, the parties entered the terms of the oral plea agreement into the record. 

Under the terms, Kerley agreed to plead guilty to the drug conspiracy count in

exchange for the government dismissing a drug possession count and not objecting

to Kerley’s receiving a guidelines adjustment for acceptance of responsibility.

During the plea hearing, Kerley’s counsel summarized the substance of the

plea negotiations, stating, among other things, that the government had agreed not

to object to Kerley’s request for safety-valve relief pursuant to U.S.S.G. § 5C1.2,

as follows: 

[Kerley’s Counsel]: . . . [H]e is pleading to one count of conspiracy, . .

. and I also understand based on the terms of our – either they are

going to agree or not object to the fact by coming forward he is

entitled to acceptance of responsibility. The Government is not going

to object or possibly agree, depending on the term of art, the guideline

safety valve would probably apply if he has the one point that we

think that he has as far as prior conviction, and I think the

Government would also probably agree or not object, actually,

probably affirmatively agree that he is still in the posture of based

upon his debriefings and information he is still in a posture of reaping

that information into a possible 5K1 or Rule 35.
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The district court stated that it had reservations about the parties’ decision to enter

into an oral plea agreement and directed the parties to put every term of the plea

agreement in the record. In response, the government clarified that it was making

no promises with regard to whether Kerley was eligible for safety-valve relief

under U.S.S.G. § 5C1.2, as follows:

[Government]: If I may, Your Honor, the only thing the Government

is agreeing to with respect to Frank Eugene Kerley is two level

acceptance for coming forward if the court does accept and adjudicate

guilty and the dismissal of Count 2. All of the other things are

pending concerning criminal history. I cannot make agreements or

obligate the Government with respect to whether he is eligible for

safety valve. There are only two agreements to recommend two levels

for acceptance, as well as, dismissal of Count 2.

When the district court asked Kerley’s counsel if this was his understanding of the

plea agreement, Kerley’s counsel replied that it was, as follows:

THE COURT: Mr. Gelety, is that your understanding?

[Kerley’s counsel]: It is. She can’t agree – I hate to say

anything nice about her, she can’t agree because, in fairness, we need

to firm up that one point on the criminal history. I am comfortable

saying if it is one point as I anticipate I am comfortable she will not

object or she will agree the safety valve applies, is that fair enough?

The district court then asked Kerley directly whether that was his understanding of

the plea agreement, and Kerley responded that it was.

Kerley’s Presentence Investigation Report (“PSI”) stated that Kerley, along

with his codefendant father and brother, had operated five marijuana grow houses
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with more than 200 plants. The PSI characterized Kerley as involved in the entire

operation, responsible for establishing the houses, recruiting his family members

and distributing the marijuana while receiving the majority of the profits. 

Consequently, the PSI recommended a two-level enhancement under U.S.S.G. §

3B1.1(c) as an organizer. Additionally, because Kerley was an organizer/manager

of the offense, the PSI concluded that Kerley was ineligible for safety-valve relief,

despite the fact that Kerley had provided a truthful safety-valve statement to the

government. With a total offense level of 17 and a criminal history category of I,

the PSI calculated Kerley’s advisory guidelines range as 24 to 30 months. 

However, the PSI noted that, under 21 U.S.C. § 841(b)(1)(B), the statutory

mandatory-minimum sentence of 60 months’ imprisonment applied and became

the guideline sentence.

Kerley objected to the organizer enhancement and the safety-valve

disqualification. Kerley argued that the government had breached the plea

agreement by providing information to the probation office and the sentencing

court that resulted in the PSI’s recommendation for the organizer enhancement and

the denial of safety-valve relief. Kerley also objected to various factual allegations

in the PSI relating to Kerley’s role in the offense, including the assertions that he

was responsible for establishing the marijuana-growing operation, that he supplied
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equipment and provided instruction on the operation of the grow houses, that he

recruited others and that he had profited significantly from the operation.

At the sentencing hearing, the government called Drug Enforcement Agency

special agent Dean Wolpert. Wolpert testified that during interviews with Kerley’s

codefendants, Wolpert learned that Kerley had approached them to participate in

the marijuana-growing scheme, provided them with materials and plant “clones,”

checked on plant growth, processed the product, sold the product to a distributor

and received a percentage of the profits from the marijuana grown in their

residences. To counter the government’s evidence, Kerley called his father, who

testified that the operation was “a family thing” with “no boss” and “everybody in

charge of their own operation.” However, Kerley’s father admitted on crossexamination that Kerley provided plant “clones” and equipment, assisted in each

harvest, distributed the product and was the only defendant involved in all five

grow houses.

After hearing arguments from counsel, the district court found that the plea

agreement did not include any terms relating to an organizer/manager enhancement

under § 3B1.1(c) or a safety-valve reduction under § 5C1.2. In addition, the

district court concluded that Kerley’s actions in recruiting, providing plants and

equipment, monitoring the plants’ growth, harvesting, processing and distributing
We review de novo whether the government has breached a plea agreement. United 1

States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). 

6

the product, and sharing in his codefendants’ profits categorized Kerley as an

organizer/manager under § 3B1.1(c) and thus rendered him ineligible for safetyvalve relief. The district court sentenced Kerley to the statutory mandatoryminimum 60-month sentence. Kerley filed this appeal.

II. DISCUSSION

A. Breach of the Plea Agreement

On appeal, Kerley argues that the government breached the oral plea

agreement by presenting evidence to support a finding that he was an

organizer/manager of the conspiracy pursuant to § 3B1.1(c) and thus ineligible for

safety-valve relief.

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The government is bound by promises it makes to a defendant in order to

induce the defendant to plead guilty. United States v. Johnson, 132 F.3d 628, 630

(11th Cir. 1998). In determining whether the government breached the plea

agreement, we first determine the scope of the government’s promises. Raulerson

v. United States, 901 F.2d 1009, 1011 (11th Cir. 1990). Whether the government

violated the promises of the plea agreement is judged according to the defendant’s

reasonable understanding at the time that he entered his plea. United States v.

Taylor, 77 F.3d 368, 370 (11th Cir. 1996).
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Here, the record shows that the oral plea agreement consisted of three

unambiguous terms: (1) Kerley would plead guilty to one count of conspiracy; (2)

the government would dismiss the count of possession; and (3) the government

would not object to Kerley receiving a two-point reduction for acceptance of

responsibility. The plea agreement contained no restrictions on the government

with regard to a role enhancement under § 3B1.1(c) or safety-valve relief. 

Furthermore, Kerley concurred with the government’s statement during the plea

hearing that the government was making no promise with regard to Kerley’s

eligibility for a safety-valve reduction. All references to the possibility of Kerley

receiving a safety-valve reduction at sentencing were couched in conditional

language and clearly did not constitute a promise by the government not to object

should Kerley seek safety-valve relief. Therefore, the government did not breach

the plea agreement by presenting evidence regarding Kerley’s organizer role in the

offense.

B. Organizer Role Enhancement

Kerley also argues that the district court erred in finding that he was an

organizer pursuant to U.S.S.G. § 3B1.1(c) and that Kerley, therefore, did not meet

the criteria for a safety-valve reduction, pursuant to 18 U.S.C. § 3553(f) and
We review the district court’s factual determinations in denying a safety-valve reduction 2

for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). We also review for

clear error the district court’s determination of a defendant’s role in the offense. United States v.

Mesa, 247 F.3d 1165, 1168 (2001). 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).

To be eligible for a safety-valve reduction, the defendant must show that: (1) he has no 3

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

a firearm in connection with the 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 to 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).

While the government bears the burden of proving the applicability of a § 3B1.1(c) 4

managerial role enhancement, United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993), the

defendant bears the burden of proving his eligibility for the safety-valve reduction. Cruz, 106

F.3d at 1557.

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U.S.S.G. § 5C1.2.2

The safety-valve provision of § 5C1.2 implements 18 U.S.C. § 3553(f), and

allows a court to sentence a defendant without regard to the statutory mandatoryminimum sentence if the defendant meets five criteria. United States v. Brownlee,

204 F.3d 1302, 1304 (11th Cir. 2000). There is no dispute that Kerley met four of 3

the five criteria. The only issue in this appeal is whether Kerley was an “organizer,

leader, manager, or supervisor of others in the offense.” 18 U.S.C. 3553(f);

U.S.S.G. § 5C1.2(a). If he was, then the two-point enhancement under § 3B1.1(c)

was proper, and Kerley was ineligible for safety-valve relief.

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Section 3B1.1(c) provides for a two-level increase in a defendant’s offense

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

cmt. 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; (3) the 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 over others. 

U.S.S.G. § 3B1.1, cmt. n.4.

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

concluding that Kerley was an organizer/manager under § 3B1.1(c). The

government presented evidence that Kerley had great influence over his

codefendants and played a significant role in organizing and maintaining the

marijuana-growing operation. Kerley initiated the scheme to grow marijuana

plants at the five houses; recruited his codefendants to join in the scheme; provided

his codefendants with equipment and plants; checked on their operations;
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harvested and processed the marijuana from their plants and took it to a distributor;

and took a significant share of his codefendants’ profits from the sales. 

Because Kerley was an organizer/manager, the district court also did not

clearly err in finding that Kerley was ineligible for safety-valve relief.

AFFIRMED.