Case: 13-15959   Date Filed: 08/11/2014   Page: 1 of 5


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15959
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 2:13-cr-14042-DLG-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                  versus



EDWARD WILLIAM MCELHENNY,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 11, 2014)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Edward William McElhenny appeals the 240-month sentence imposed

following his guilty plea to conspiracy to manufacture, and maintaining a premises

to manufacture methamphetamine. On appeal, he challenges the application of an

aggravating-role enhancement under U.S.S.G. § 3B1.1. After a thorough review,

we affirm.

      McElhenny was charged by superseding information with conspiracy to

manufacture and possess with intent to distribute five grams or more of

methamphetamine, in violation of 21 U.S.C. § 846 (Count 1), and maintaining a

premises for manufacturing, distributing, and using methamphetamine, in violation

of 21 U.S.C. § 856(a)(1) (Count 2). He pleaded guilty to both counts and

submitted a factual proffer in which he admitted that he lived in the premises with

four others, that he used the house to manufacture methamphetamine, that he had

advised another resident how to manufacture the drug, and that he purchased

pseudoephedrine to manufacture drugs. He further admitted that he used the other

residents to supply him with pseudoephedrine.

      In the presentence investigation report (PSI), the probation officer

determined the offense level to be 35, which included a four-level enhancement

under U.S.S.G. § 3B1.1(a) for McElhenny’s leadership role in the offense. Based

on this offense level and McElhenny’s extensive criminal history, McElhenny’s

guidelines range was 292 to 365 months’ imprisonment. In his only objection to


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the PSI, McElhenny disputed that he was a leader or organizer under § 3B1.1(a)

because, if he was the leader or organizer, he could not be counted as a

“participant,” and thus the offense did not involve the necessary five participants to

support the enhancement. McElhenny also requested that the court sentence him

below the advisory guideline range because his criminal history category over-

represented the seriousness of his criminal history. He explained that he had no

prior violent offenses and no weapons charges, and that his prior crimes were for

drug possession or thefts enabling him to feed his drug addiction.

      At sentencing, the district court overruled McElhenny’s objection because

precedent clearly held that the defendant could be counted as a participant under §

3B1.1(a). The court considered McElhenny’s request for a variance and sentenced

him to 240 months’ imprisonment, noting McElhenny’s history of drug addiction,

his prior convictions for drug possession and theft, and the need for a lengthy

prison term to deter McElhenny’s conduct. McElhenny now appeals, arguing that

the evidence did not support the leadership enhancement under § 3B1.1(a).

      Generally, we review the district court’s determination of a defendant’s role

in the offense for clear error, and review de novo whether a provision of the

Sentencing Guidelines applies to a particular set of facts. United States v. Yates,

, 1182 (11th Cir. 1993). But arguments, such as McElhenny’s, that

were not raised before the district court are reviewed for plain error. United States


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v. McNair, 

, 1222 (11th Cir. 2010). Plain error occurs when there is

(1) an “error”; (2) “that is plain”; (3) “that affects substantial rights”; and (4) that

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” 

      Under § 3B1.1(a), a four-level enhancement applies if (1) the defendant was

an organizer or leader of a criminal activity; and (2) the criminal activity involved

five or more participants or was otherwise extensive. U.S.S.G. § 3B1.1(a). Factors

to consider in determining whether the defendant was an organizer or manager

include: (1) “the exercise of decision making authority,” (2) “the nature of

participation in the commission of the offense,” (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, comment. (n.4). “There is no

requirement that all of the considerations have to be presented in any one case.”

United States v. Caraballo, 

, 1231 (11th Cir. 2010) (citation

omitted).

      Evidence that the defendant recruited and instructed participants in the

conspiracy is sufficient to support a leadership enhancement. United States v.

Ndiaye, 

, 1304 (11th Cir. 2006). “Section 3B1.1 requires the


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exercise of some authority in the organization, the exertion of some degree of

control, influence, or leadership.” 

And the enhancement can

apply where the defendant was an organizer, leader, manager, or supervisor of only

one other participant. U.S.S.G. § 3B1.1, comment. (n.2).

       We conclude that the district court did not plainly err in applying the

enhancement. 1 In his factual proffer for his guilty plea and the undisputed portions

of the PSI, McElhenny admitted that he advised others in the house on how to

manufacture methamphetamine, he directed others when and where to purchase

pseudoephedrine for him, and he supplied others in the house with

methamphetamine. This is sufficient “control, influence, and leadership” under

§ 3B1.1(a). See 

(upholding enhancement for defendant

who recruited and instructed co-conspirators). Thus, we conclude that the district

court properly applied a four-level enhancement for McElhenny’s role in the

criminal activity.

       AFFIRMED.




1
  McElhenny has abandoned his argument that he could not be counted as one of the five
participants. Holland v. Gee, 

, 1066 (11th Cir. 2012) (explaining that issues not
raised in the initial brief are abandoned).
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