[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                          JUNE 14, 2011
                            No. 09-13649                   JOHN LEY
                                                             CLERK
                        Non-Argument Calendar
                      ________________________

               D. C. Docket No. 08-00228-CR-ORL-22-KRS

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

ALBA RIVERA,
a.k.a. Nivi,

                                                        Defendant-Appellant.


                      ________________________

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

                             (June 14, 2011)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Alba Rivera appeals her 120-month, mandatory-minimum sentence for

conspiracy to possess with intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846. She argues that the district

court erred in applying a two-level enhancement, pursuant to U.S.S.G. § 3B1.1(c),

based on the finding that she was a manager or supervisor in the conspiracy. She

further argues that the district court erred in denying her safety-valve relief

pursuant to 18 U.S.C. § 3553(f). For the reasons set forth below, we affirm.

                                           I.

      Rivera pled guilty without a negotiated agreement. At her change-of-plea

hearing, the government set forth the following factual basis for the plea.

Beginning in 2006 and continuing through June 2007, a drug trafficking

organization mailed cocaine almost every week from Puerto Rico to Orlando,

Florida, in United States Postal Service parcels. Each package contained between

one and three kilograms of cocaine. Miguel Montes, a leader and organizer of the

operation in Orlando, sold and distributed kilogram quantities of cocaine directly

to eight named individuals and other unindicted co-conspirators. Jonathan

Melendez also was identified as the leader and organizer of a group participating in

the cocaine distribution. Melendez received kilogram quantities of cocaine from

Puerto Rico, which various associates transported to him from the addresses in the



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Orlando area to which the parcels had been mailed. Rivera and four named

individuals were associated with Melendez in the receipt and distribution of

cocaine. At times, Melendez obtained cocaine from Montes.

      A number of individuals in the Orlando area were recruited and paid to

receive parcels containing cocaine and to deliver the parcels to couriers. Rivera

was recruited and paid by codefendant Yahaira Cordero, both to receive parcels

and to provide new names and addresses to which parcels could be mailed.

Investigators determined that Rivera, in turn, recruited Maria Adames, Edgardo

Rivera-Ocana, and an unindicted neighbor to receive parcels of cocaine. Rivera

and Cordero were roommates, and Rivera knew that the parcels she received

contained cocaine. Cordero paid Rivera $500 for each parcel she or her recruits

received, and Rivera paid her recruits from that amount. Investigators also

determined that Rivera had recruited Jorge Rivera (“Jorge”) and an individual

named Yesette to receive parcels at two particular addresses. Rivera admitted the

truth of the allegations, and the court accepted her plea.

      In calculating Rivera’s guideline sentencing range, the probation office

assigned a base offense level of 34, pursuant to U.S.S.G. § 2D1.1(c)(3). It also

concluded that Rivera was an organizer, leader, manager, or supervisor in the

organization due to her recruitment of others and the fact that she received a



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portion of the payments her recruits received. Accordingly, it added a two-level

managerial enhancement, pursuant to U.S.S.G. § 3B1.1(c). After a 3-level

reduction for acceptance of responsibility, Rivera had a total offense level of 33.

With a criminal history category of I, Rivera had a guideline range of 135 to 168

months’ imprisonment, and she was subject to a statutory mandatory-minimum

term of 10 years’ imprisonment. Rivera objected, in relevant part, that she should

not have received the role enhancement, and she requested safety-valve relief.

      At the sentencing hearing, Agent Ray Schulte testified that Rivera recruited

Rivera-Ocana, Adames, Jorge, and a woman named Rosanna Cortijo to receive

packages for Melendez. Rivera-Ocana told investigators that Rivera had recruited

both him and Adames, and that he and Adames each received three to four

packages, which they gave to Rivera. Adames also told investigators that Rivera

had recruited her and Rivera-Ocana. Schulte further testified that Melendez paid

Cordero $1,000 per parcel, and she, in turn, paid Rivera $500. If the parcel had

been received by one of Rivera’s recruits, Rivera would pay that person $200.

Postal records corroborated the involvement of the various co-conspirators.

      Schulte testified that Rivera had met with investigators twice in order to

make a proffer. The agents terminated the first session because they felt that she

was not being forthcoming with information they had previously received from



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other people regarding Rivera’s receipt of packages for another individual, her

knowledge of the scope of the activity, the identities of the individuals involved,

and the method for receiving parcels. At her second proffer session, she provided

no new information, even though investigators already had received very specific

information from Cordero, Rivera-Ocana, and Adames regarding Rivera’s

involvement, as well as information that Rivera had attempted to recruit a woman

named Giorliana Cortijo. The government also knew that Rivera had recruited

Jorge and that the man who originally had recruited Rivera, prior to her

involvement in the Melendez conspiracy, was named Thomas Sepulveda. When

given the opportunity to identify those two men, however, Rivera did not.

      On cross-examination, Schulte said that, during Adames’s proffer session,

she stated that she had approached Rivera and asked to receive packages, rather

than being recruited by Rivera. On one occasion, Rivera went with Cordero to

deliver a package to Melendez. On subsequent occasions, though, Cordero

instructed Rivera to wait at a location several blocks away from Melendez’s

location, because Melendez did not want Rivera to know where he now lived.

      Rivera testified that she had told the government that Adames asked to join

the organization, and that Rivera-Ocana worked only with Adames, not with

Rivera. She told the government what she knew, and she was willing to testify.



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She denied that she was directly involved with supervising any of the individuals

involved in the operation. Rivera stated that she knew only Rivera-Ocana and

Melendez, and she denied any involvement with Jorge. She also had told the

government that she did not recruit Rivera-Ocana, and that Rivera-Ocana used to

deal marijuana. Rivera stated that Cordero gave her $500 per parcel and that

Rivera kept $200 of each payment for herself. In total, she received less than

$2,000 for her involvement in the scheme. On cross-examination, Rivera denied

knowing Sepulveda. She said that she had told the investigators that Jorge and

Rivera-Ocana were dealing on the side with Giorliana, their sister-in-law, and that

Rivera knew them through Adames but had nothing to do with them.

      Agent Schulte further testified that, during a proffer session, Rivera had

admitted to (1) recruiting Rivera-Ocana and Adames to receive parcels, (2)

receiving approximately four parcels at Adames’s address, and (3) receiving four

or five parcels at her own address. Rivera and Cordero both had said that they paid

$300 to the recipient of the parcel, either Adames or Rivera-Ocana, and that Rivera

and Cordero would each keep $100. The government had terminated the proffer

because it believed that Rivera was not telling the truth, specifically with regard to

Jorge and Sepulveda. Schulte further stated that Cordero had told investigators of

Rivera’s pre-conspiracy involvement with Sepulveda, and that several other



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codefendants had told the government that Rivera had recruited Jorge.

      Rivera argued that she had taken responsibility for her actions, but she

denied recruiting Rivera-Ocana, and she asserted that Adames had approached her.

The drug ring was huge, and Rivera’s role was minimal. She was not involved in

directing any activity other than receiving packages. She did not receive a large

number of packages, recruit a large number of people, or control day-to-day

operations. Therefore, she contended that the managerial-role enhancement should

not be applied. Without that enhancement, she argued that she met all of the

requirements for safety-valve relief, including having cooperated with the

government. She stated that she had told the government truthfully everything that

she knew, although she was not able to confirm everything the government had

asked her with respect to specific individuals and their involvement.

      The government responded that it was not particularly relevant whether

Adames volunteered or was approached, as Rivera managed her from that point

forward. It indicated that Rivera provided her recruits’ addresses to either Cordero

or Melendez and arranged for couriers to obtain the boxes from the recipients. She

would pay the people involved and keep some money for herself. That role

qualified her as a manager or supervisor, which precluded her from safety-valve

relief. Furthermore, the government did not believe that Rivera had been entirely



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truthful or that she had revealed everything that she knew. Therefore, she would

not be eligible for safety-valve relief, regardless of her role in the offense.

      The court found that Rivera was significantly involved in the conspiracy,

and it overruled the objection to the role enhancement. It stated that there was “no

way for [the court] to honestly conclude that she was not in a managerial role.” In

light of that finding, she was ineligible for safety-valve relief. Additionally, the

court found that Rivera had not been completely honest and forthcoming with

regard to her involvement in and knowledge of the conspiracy. The court adopted

the guideline calculations in the presentencing investigation report and sentenced

Rivera to 120 months’ imprisonment and 5 years’ supervised release.

                                           II.

      A district court’s determination of the defendant’s role in the offense is

reviewed for clear error. United States v. De Varon, 

, 937 (11th Cir.

1999). “[A] similar fact pattern may on occasion give rise to two reasonable and

different constructions. . . . [A] trial court’s choice between ‘two permissible views

of the evidence’ is the very essence of the clear error standard of review.” 

Thus, “[s]o 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, . . . it will be rare for

[us] to conclude that the sentencing court’s determination is clearly erroneous.” 

government must prove the existence of an aggravating role by a

preponderance of the evidence. United States v. Yates, 

, 1182 (11th

Cir. 1993). “The findings of fact of the sentencing court may be based on evidence

heard during trial, facts admitted by a defendant’s plea of guilty, undisputed

statements in the presentence report, or evidence presented at the sentencing

hearing.” United States v. Saunders, 

, 1271 n.22 (11th Cir. 2003)

(quotation and alteration omitted).

       Sentencing Guidelines § 3B1.1 provides for aggravated-role enhancements

based on the degree of the defendant’s responsibility and the extent of the criminal

activity:

       (a)   If the defendant was an organizer or leader of a criminal
             activity that involved five or more participants or was otherwise
             extensive, increase by 4 levels.

       (b)   If the defendant was a manager or supervisor (but not an
             organizer or leader) and the criminal activity involved five or
             more participants or was otherwise extensive, increase by 3
             levels.

       (c)   If the defendant was an organizer, leader, manager, or
             supervisor in any criminal activity other than described in (a) or
             (b), increase by 2 levels.

U.S.S.G. § 3B1.1(a)-(c) (emphasis in original).

       “‘The mere status of a middleman or a distributor does not support

enhancement under Section 3B1.1 for being a supervisor, manager, or leader.

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Section 3B1.1 requires the exercise of some authority in the organization, the

exertion of some degree of control, influence, or leadership.’” 

(quoting with approval United States v. Brown, 

, 1385 (7th Cir.

1991)). “The assertion of control or influence over only one individual is enough

to support a § 3B1.1(c) enhancement.” United States v. Perry, 

,

1217 (11th Cir. 2003) (alteration omitted).

      Considering both Schulte’s testimony at sentencing and Rivera’s admissions

during the plea colloquy, the government presented evidence that Rivera recruited

Rivera-Ocana, Jorge, and other individuals to join the Melendez operation, and that

she took on Adames as a recruit when Adames asked to join the operation. The

government also presented evidence that Rivera arranged for the recruits to begin

receiving parcels by providing their names and addresses to Cordero, and that she

directly paid at least Adames and Rivera-Ocana for receiving the parcels. The

district court did not clearly err in finding that her involvement rose to the level of

a managerial or supervisory role in the conspiracy. See De 

.

                                           III.

      When reviewing a district court’s findings as to a defendant’s safety-valve

eligibility, we review the district court’s legal interpretation of the statute and

Guidelines de novo and its factual determinations for clear error. United States v.



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Poyato, 

, 1297 (11th Cir. 2006).

       The safety-valve provision requires the district court to sentence the

defendant without regard to any applicable statutory mandatory-minimum sentence

if all of the following five criteria are met:

       (1) the defendant does not have more than 1 criminal history point, as
       determined under the [S]entencing [G]uidelines;

       (2) the defendant did not use violence or credible threats of violence
       or possess a firearm or other dangerous weapon (or induce another
       participant to do so) in connection with the offense;

       (3) the offense did not result in death or serious bodily injury to any
       person;

       (4) the defendant was not an organizer, leader, manager, or supervisor
       of others in the offense, as determined under the [S]entencing
       [G]uidelines and was not engaged in a continuing criminal enterprise .
       . . ; and

       (5) not later than the time of the sentencing hearing, the defendant has
       truthfully provided to the [g]overnment all information and evidence
       the defendant has concerning the offense or offenses that were part of
       the same course of conduct or of a common scheme or plan . . . .

18 U.S.C. § 3553(f). Here, the district court found that Rivera had failed to satisfy

the fourth and fifth elements of the statute. As its finding with respect to Rivera’s

managerial role was not clearly erroneous, see 

, it did not

err in denying her safety-valve relief, see § 3553(f)(4).

       For the foregoing reasons, we affirm Rivera’s sentence.

       AFFIRMED.

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