United States v. Rupert Jones , 539 F. App'x 920 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15787
Non-Argument Calendar
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D.C. Docket No. 4:12-cr-00148-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUPERT JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(August 20, 2013)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Rupert Jones appeals his 60-month sentence, imposed for theft of
government funds, in violation of 18 U.S.C. § 641. On appeal, he argues that the
district court: (1) clearly erred in applying a four-level aggravating role adjustment
for his aggravating role in the offense; and (2) impermissibly delegated authority
over his restitution payment schedule to the Bureau of Prisons (“BOP”).
I. Aggravating Role Enhancement
“A district court’s enhancement of a defendant’s offense level based on his
role as an organizer or leader is a finding of fact reviewed for clear error.” United
States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). Under clear error review,
when two permissible views of the evidence exist, the factfinder’s choice between
them will not be clearly erroneous. Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985)). When reviewing a
decision under the clear error standard, a reviewing court may not “reverse the
finding of the trier of fact simply because it is convinced that it would have
decided the case differently.” Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. “The
government bears the burden of proving by a preponderance of the evidence that
the defendant had an aggravating role in the offense.” United States v. Yeager, 331
F.3d 1216, 1226 (11th Cir. 2003).
The Sentencing Guidelines provide that a four-level enhancement may be
applied if “the defendant was an organizer or leader of a criminal activity that
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involved five or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). The commentary to the guidelines provides further guidance for courts
in determining the extent of the defendant’s role in the offense:
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.
...
In distinguishing a leadership and organizational role from one of
mere management or supervision, titles . . . are not controlling.
Factors the court should consider include 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. There
can, of course, be more than one person who qualifies as a leader or
organizer of a criminal association or conspiracy. This adjustment
does not apply to a defendant who merely suggests committing the
offense.
U.S.S.G. § 3B1.1, comment. (n.2, 4). “There can, of course, be more than one
person who qualifies as a leader or organizer of a criminal association or
conspiracy.” U.S.S.G. § 3B1.1 cmt. (n.4). The defendant does not have to be the
“sole leader or kingpin of the conspiracy in order to be considered an organizer or
leader within the meaning of the Guidelines.” Rendon, 354 F.3d at 1332
(quotation omitted). A leader/organizer enhancement may apply where the
defendant was the leader or organizer of only one person. Yeager, 331 F.3d at
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1226-27. The district court’s application of a § 3B1.1(a) enhancement is given
deference on appeal. Rendon, 354 F.3d at 1332.
Given the records showing Jones held titles at the stores involved in the
fraud, had signature authority over bank accounts of some stores, and was both
sought out for and gave instructions when his wife was in the hospital, it cannot be
said that the district court’s view of the evidence was impermissible. Therefore,
the court did not clearly err in imposing the four-level enhancement.
II. Delegation of Authority
We review criminal restitution orders de novo. United States v. Prouty, 303
F.3d 1249, 1251 (11th Cir. 2002). Under 18 U.S.C. § 3572, a court may provide
for restitution to be paid in installments for a length of time set by the court. 18
U.S.C. § 3572(d)(1), (2). If restitution is ordered, “the court shall . . . specify in the
restitution order the manner in which, and the schedule according to which, the
restitution is to be paid.” 18 U.S.C. § 3664(f)(2).
In Prouty, the district court ordered the defendant to pay immediately
restitution in the amount of more than $5,000,000. Prouty, 303 F.3d at 1253-54.
Counsel noted that the defendant could not pay such a large fine immediately, and
requested that the court impose a payment schedule. Id., 303 F.3d at 1254. The
court stated, “I will leave that to the discretion of the Probation Office or whoever
does that.” Id. We held that the district court erred in delegating the setting of the
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repayment schedule to the probation office, as the statutes are clear that the setting
of the repayment schedule is a judicial duty. Id., 303 F.3d at 1255.
Here, the district court did not improperly delegate authority to the BOP
over the setting of Jones’s restitution repayment schedule. Unlike the court in
Prouty, the district court here made no explicit delegation of authority to the BOP.
See Prouty, 303 F.3d at 1254. Nor did the court make any implicit delegation of
authority by setting only a minimum monthly payment amount, as it was not
required to set a specific or maximum monthly payment. See 18 U.S.C.
§§ 3572(d)(1), (2), 3664(f)(2).
Based upon the foregoing and our review of the record and the parties’
briefs, we conclude that the district court did not err in sentencing Jones and affirm
his sentence.
AFFIRMED.
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