United States v. Andrew M. Wedderburn

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 10, 2012
• Docket: 11-15937
• Status: Unpublished

Opinion

Case: 11-15937 Date Filed: 07/10/2012 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT

No. 11-15937 JULY 10, 2012 Non-Argument Calendar JOHN LEY ________________________ CLERK

D.C. Docket No. 2:06-cr-00033-JES-SPC-1

UNITED STATES OF AMERICA, lllllllllllllllllllllllllll lllllllllllll Plaintiff-Appellee, versus

ANDREW M. WEDDERBURN, a.k.a. Generator, a.k.a. Genuine,llllllllllllllllllllllllllllllllllllllll

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Middle District of Florida ________________________ (July 10, 2012)

Before EDMONDSON, BARKETT and PRYOR, Circuit Judges.

PER CURIAM: Case: 11-15937 Date Filed: 07/10/2012 Page: 2 of 4

Andrew Wedderburn appeals his within-guideline total sentence of 132

months’ imprisonment, after pleading guilty to 1 count each of conspiracy to import

1,000 kilograms or more of marijuana into the United States, 21 U.S.C. ' 963;

conspiracy to possess with the intent to distribute 1,000 kilograms or more of

marijuana, 21 U.S.C. ' 846; and possession with intent to distribute 1,000 kilograms

or more of marijuana, 21 U.S.C. ' 841(a)(1) and 18 U.S.C. ' 2. On appeal,

Wedderburn argues that the district court committed clear error in imposing a

three-level enhancement under U.S.S.G. ' 3B1.1(b), after determining that

Wedderburn was a supervisor or manager in the smuggling operation. We review

the district court’s decision to apply an aggravating role enhancement for clear error.

United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). “For a factual

finding to be clearly erroneous, this Court, after reviewing all of the evidence, must

be left with a definite and firm conviction that a mistake has been committed.”

United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (quotations

omitted). “Where the evidence has two possible interpretations, the district court’s

choice between them cannot be clearly erroneous.” United States v. Foster, 155

F.3d 1329, 1331 (11th Cir. 1998).

Section 3B1.1(b) of the Sentencing Guidelines provides for a three-level

increase to a defendant’s offense level if the defendant “was a manager or supervisor

2 Case: 11-15937 Date Filed: 07/10/2012 Page: 3 of 4

(but not an organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive.” U.S.S.G. ' 3B1.1(b). The government

bears the burden of establishing, by a preponderance of the evidence, a defendant’s

aggravating role in the offense. United States v. Yates, 990 F.2d 1179, 1182 (11th

Cir. 1993). Recruitment of co-conspirators and arrangement for the transportation

of the drugs is indicative of a managerial or supervisory role. United States v.

Perry, 340 F.3d 1216, 1217-18 (11th Cir. 2003). A defendant’s subordinate role to

another conspirator does not absolve him of his supervisory role in coordinating and

managing the delivery and transportation of a drug shipment. United States v.

Jones, 933 F.2d 1541, 1542, 1546-47 (11th Cir. 1991) (upholding a ' 3B1.1(b)

enhancement where the evidence showed that the defendant helped other

participants “plan the operational aspects of the [drug] smuggling effort,” and made

various unilateral decisions regarding landing and loading locations and the timing

of the smuggling trips).

The district court’s finding that Wedderburn was a manager or supervisor

under U.S.S.G. ' 3B1.1(b) was supported by the record developed during an

evidentiary hearing at sentencing. In response to questioning by the court, DEA

Special Agent Paul Mangone summed up Wedderburn’s participation in the

criminal scheme as follows:

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During each delivery . . . Mr. Wedderburn was always the person that was consulted. He was the one person that, when he was not there, we always made sure that we made a phone call to Jamaica, to make sure. That everyone was concerned [with] what Mr. Wedderburn wanted to do. It wasBwhether it was Mr. Hanast, whether it was Mr. Finkel, or Gentry, whether it was Mr. Riddick, they always deferred, when it came to certain things, to Mr. Wedderburn.

The court credited Mangone’s testimony. Because the evidence showed that

Wedderburn helped direct and plan the smuggling operation, Wedderburn has not

shown that the district court clearly erred in applying the three-level enhancement.

Accordingly, we affirm.

AFFIRMED.