Case: 13-13037   Date Filed: 02/11/2014   Page: 1 of 12


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13037
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:12-cr-00207-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                  versus

KEVIN LAMONT GREEN,

                                                      Defendant - Appellant.

                       ________________________

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

                            (February 11, 2014)

Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Kevin Green appeals his 66-month sentence for possession of firearms as a

convicted felon, in violation of 18 U.S.C. § 922(g)(1), on two grounds. First, he

argues that the district court clearly erred in applying an aggravating-role

enhancement under United States Sentencing Guidelines § 3B1.1(c). Second, he

contends that his sentence is substantively unreasonable.

                                          I.

      In June 2012, New Jersey State Police informed the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) that Green was trafficking firearms from

Georgia to New Jersey in exchange for heroin. As a convicted felon, Green could

not purchase the firearms himself, so he asked an acquaintance, Tishard Brown, to

do it. Brown was in Green’s debt, and Green said that purchasing the firearms for

him would make them even. Brown agreed, and on June 15, 2012, Green drove

Brown from Savannah, Georgia to Arrowhead Pawn Shop near Atlanta, Georgia,

where he purchased three firearms. When filling out the ATF paperwork, Brown

indicated that he was the actual purchaser of the firearms, but he later related that

Green had directed him to purchase those firearms. The three firearms purchased

that day had not been recovered as of the time of Green’s sentencing.

      On September 20, 2012, Green told Brown that they would be returning to

Atlanta; he drove Brown back to the Arrowhead Pawn Shop the very next day.

This time, they selected five firearms to purchase, but the purchase was delayed in


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order for Brown’s background check to be processed. ATF agents got in contact

with Arrowhead’s staff while the background check was processing, and they

agreed to notify the ATF when it was complete. The background check cleared on

September 26, and Brown told an Arrowhead employee that he would come pick

up the firearms next day. On that day, Green again drove Brown from Savannah to

the pawn shop so that they could pick up the guns. ATF agents, who had the

premises under surveillance, observed Brown and Green exit the store with a box

containing five guns. After Green drove Brown back to Savannah, he dropped

Brown off but kept the firearms in his car. ATF agents pulled Green over, found

the weapons, and placed him under arrest.

      A federal grand jury indicted Green on one count of conspiracy to make

false statements in the purchase of firearms and to possess firearms as a convicted

felon, in violation of 18 U.S.C. § 371, and one count of possession of firearms as a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). Green entered into a plea

agreement under which he pleaded guilty to the possession charge in exchange for

the government’s dismissal of the charge of conspiracy. At sentencing, the district

court overruled both of Green’s objections to the presentence investigation report

(PSR). Green’s sentencing guidelines range of imprisonment was 46 to 57 months,

but the court varied upward and sentenced Green to, among other things, 66

months imprisonment.


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      Green now appeals his sentence, arguing that the district court erred in

applying an aggravating-role enhancement to his base offense level and that the

court’s imposition of an upward variance resulted in a sentence that is

substantively unreasonable.

                                         II.

                                         A.

      We review a district court’s determination of a defendant’s role in the

offense for clear error. United States v. Jiminez, 

, 1250–51 (11th

Cir. 2000). Accordingly, we will reverse the district court’s application of the

aggravating-role enhancement only if we are “left with the definite and firm

conviction that a mistake has been committed.” United States v. Philidor, 

, 885 (11th Cir. 2013).

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

enhancement to a defendant’s offense level if “the defendant was an organizer,

leader, manager, or supervisor in any criminal activity” not falling within the

purview of subsections (a) or (b). U.S.S.G. § 3B1.1(c) (Nov. 2012). In

determining whether a defendant exercised a leadership role in the commission of

an offense, courts should consider the following factors:

      [T]he 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
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       offense, the nature and scope of the illegal activity, and the degree of
       control and authority exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4. However, the leadership enhancement should not be

applied to a defendant who “merely suggests committing the offense.” 

case, the district court determined that Green was eligible for the

aggravating-role enhancement for several reasons. First, the court found

persuasive the fact that Green was the principal for whom Brown made the

purchases. The court noted that Green “was the person with the money” and that

he was the one who ultimately “wanted the weapons.” Second, the court found

that Green exercised almost exclusive control and authority over the operation, and

that he planned and organized the offense. The facts the court used to make this

determination were that Green recruited Brown to serve as his accomplice,

identified the weapons store, drove Brown to that store, selected the weapons he

wanted, and furnished the money to purchase the weapons.

       On appeal, Green contends that he and Brown were in fact co-equal partners

in the conspiracy and that the district court erred by concluding otherwise. Green

cites as evidence of this contention the fact that neither codefendant claimed a

larger share of the fruits of the crime 1 and that both participated in the crime in


       1
         Although this issue is not dispositive either way, we are not convinced that Green did
not claim and receive a larger share of the fruits of the crime than Brown. Brown did not retain
any of the eight firearms that he and Green purchased while Green had five in his possession
when he was apprehended.
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different and complementary ways. For example, while Green provided

transportation and finances, Brown handled logistics like completing government

forms, submitting to a background check, and conducting the transaction with

Arrowhead.

       Green also makes much of certain discrepancies among the various accounts

of the offense. One such discrepancy can be found by comparing the investigating

ATF agent’s account of the offense with the account contained in the PSR. In an

affidavit in support of the criminal complaint filed in this case, the ATF agent

stated that the store clerk who had helped Brown on his September 21 trip to the

pawn shop reported that Brown had been accompanied by another individual (later

identified as Green) who merely “appeared to be helping Brown pick out

firearms.” (emphasis added). Although the PSR also references the store clerk’s

account, it elsewhere relates Brown’s version of events, in which “Green directed

Brown to purchase four Jiminez Arms 9mm pistols and one Masterpiece Arms

pistol.” 2 (emphasis added). On the basis of the account contained in the affidavit,

Green contends that he and Brown “jointly select[ed] those firearms” and were

therefore equal participants in the crime. Green also takes issue with the

government’s assertion (which the district court adopted) that he “recruited”

Brown to be his accomplice. Instead, Green maintains that he merely offered

       2
         Brown’s account of the June 15 trip to the pawn shop, as reported in the PSR, also has
Green “direct[ing] Brown to purchase several firearms.”
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Brown an opportunity to satisfy a debt that Brown accepted. Once again, there are

discrepancies between different sources of evidence on this point. While the PSR

reports Brown’s statement that Green only “suggested” that he repay the debt he

owed to Green by purchasing the guns,3 the ATF agent’s affidavit states that Green

“told [Brown] that he needed to purchase some firearms for him in order to repay

the money that was owed.”

       The district court’s determination that Green played a supervisory or

leadership role in the offense “is entitled to. . . deference on appeal.” United States

v. Rendon, 

, 1332 (11th Cir. 2003) (quotation marks omitted).

While Green quibbles with the sufficiency of the evidence to support one or two of

the factors a court should consider under U.S.S.G. § 3B1.1, we have repeatedly

observed that “[t]here is no requirement that all the considerations have to be

present in any one case.” See, e.g., United States v. Ramirez, 

, 1356

(11th Cir. 2005). And we have upheld § 3B1.1 sentence enhancements where the

defendant “had decision-making authority and exercised control” as Green did

here. United States v. Saurez, 

, 1294 (11th Cir. 2002) (upholding

enhancement where the defendant directed the movement of cocaine from one

house to another, instructed co-conspirators on how to transport the drugs, and


       3
         Although the specific paragraph of the PSR cited by Green states only that Green
“suggested” the plan to Brown, it elsewhere states that he “recruited Brown to purchase the
firearms.”
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planned where to hide the drugs); see also United States v. Mandhai, 

, 1248 (11th Cir. 2004) (upholding enhancement where the defendant

recruited one other individual into a terrorist plot, prompted that person to purchase

weapons, and briefed him on the bombing plan); United States v. Lozano, 

, 1323 (11th Cir. 2007) (upholding enhancement where defendant negotiated

the sale of counterfeit products to undercover agents, instructed another employee

to engage in counterfeit sales, and oversaw the warehouse of products in the

principal leader’s absence); 

(upholding enhancement

where the defendant hired his co-conspirators for the drug trafficking trip, drove

the boat to the meet-up point, and directed them to throw the drugs overboard

when a Navy plane spotted them).

       In this case, there was evidence in the record supporting the district court’s

finding that Green’s participation in the crime outstripped Brown’s and that he

exercised control and authority over Brown. The PSR and affidavit show that it

was Green who decided which pawn shop to purchase the guns from, drove Brown

to and from the pawn shop, selected the guns to be purchased, and provided the

money for the purchase. At sentencing, Green did not object to any of the facts set

out in the PSR. 4 His failure to object effectively admitted those allegations of fact



       4
          Green did file two objections to the PSR, but both of them related to the probation
office’s calculation of the guidelines range, not the factual accuracy of the PSR’s content.
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for sentencing purposes, so he cannot complain about them now. See United

States v. Wade, 

, 1277 (11th Cir. 2006). Because there is “no clear

error in cases in which the record supports the district court’s findings,” United

States v. Petrie, 

, 1290 (11th Cir. 2002), we reject Green’s argument

that the enhancement was unwarranted. The evidence in the record amply supports

the district court’s determination that Green played a leadership or supervisory role

in this offense.

                                               B.

       Green also contends that his sentence is substantively unreasonable in view

of the sentencing factors set forth in 18 U.S.C. § 3553(a). We review the

reasonableness of a sentence under a deferential abuse of discretion standard and in

light of the totality of the circumstances. Gall v. United States, 

, 41,

51, 

, 591, 597 (2007). As the party challenging the sentence, Green

bears the burden of showing that it is unreasonable in light of the record and the

§ 3553(a) factors. United States v. Tome, 

, 1378 (11th Cir. 2010).

We will not set aside a sentence merely because we would have decided that

another sentence was more appropriate; instead, we must be “left with the definite

and firm conviction that that the district court committed a clear error of judgment




Counsel for Green explicitly stated on the record that neither “Mr. Green nor I have any
objection to the factual accuracy of the PSR.”
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in weighing the § 3553(a) factors by arriving at a sentence that lies outside the

range of reasonable sentences dictated by the facts of the case.” United States v.

Irey, 

, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted).

      When sentencing Green, the district court declined to impose an upward

departure but did impose an upward variance, which resulted in a sentence that was

above the advisory guidelines range. Green asserts that the district court erred by

varying upward after it had refused the probation office’s request for an upward

departure based on the same facts. But his argument overlooks the fact that the

standards for an upward departure differ from the standards for an upward

variance.

      The sentencing guideline under which the probation office requested an

upward departure, U.S.S.G. § 4A1.3, applies only when the defendant’s criminal

history category “substantially under-represents the seriousness of the defendant’s

criminal history” or when there is a high likelihood that the defendant will commit

other crimes. 

Section 3553(a), by contrast, allows a district

court to consider a much wider range of factors. In this case, for example, the

district court specifically mentioned the following statutory factors: (1) the nature

and circumstances of the offense; (2) the history and characteristics of the

defendant; (3) the need for the sentence imposed to reflect the seriousness of the

offense, promote respect for the law, and provide just punishment; (4) the


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provision of adequate deterrence to criminal conduct; and (5) the need to protect

the public from the defendant. 18 U.S.C. § 3553(a)(1)–(2). Although it must

evaluate all of the § 3553(a) factors, a district court may “attach great weight to

one factor over others.” United States v. Shaw, 

, 1237 (11th Cir.

2009) (quotation marks omitted). The district court in this case gave special

weight to the danger to the public posed by Green’s conduct, his extensive criminal

history, history of recidivism, and his lack of stable employment history.

      The requirements for imposing an upward departure under U.S.S.G. § 4A1.3

are narrower than the requirements for varying upward under § 3553(a), so it is not

unusual for a district court to impose one without the other. We have recognized

that a district court may rely on the same facts to impose an upward variance

without also enhancing a sentence range under the guidelines, and that principle

applies here. See United States v. Rodriguez, 

, 1264 (11th Cir.

2010) (affirming the district court’s decision to impose an upward variance based,

in part, on the number of victims involved in the offense despite its refusal to

impose a multiple-victim enhancement under the guidelines). Moreover, the fact

that the court ultimately imposed a sentence well below the statutory maximum of

ten years supports the sentence’s reasonableness. See 18 U.S.C. § 924(a)(2)

(providing ten-year statutory maximum); United States v. Gonzalez, 

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1319, 1324 (11th Cir. 2008) (holding that a defendant’s sentence was reasonable in

part because it was well below the statutory maximum).

      The district court in this case considered the § 3553(a) factors and

specifically discussed why the variance was justified. In light of this record and

the justifications cited by the district court for the upward variance, we do not have

the “the definite and firm conviction that that the district court committed a clear

error of judgment in weighing the § 3553(a) factors.” 

.

AFFIRMED.




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