[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 4, 2006

THOMAS K. KAHN

N o . 05-15257

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 04-00536-CR-1-1

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESILIO RIVERA,

a.k.a. Roberto,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(A p ril 4, 2006)

B efo re BLACK, BARKETT and HULL, Circuit Judges.

P E R CURIAM:

C esilio Rivera, though counsel, appeals his 188-month sentence for

co n sp iracy to possess with the intent to distribute methamphetamine, in violation o f 21U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii). The district court calculated R iv e r a's advisory Guidelines range as 188 to 235 months. On appeal, Rivera arg u es that the district court clearly erred in assessing a two-level increase in his o ffen se level for an aggravating role in the offense, pursuant to U.S.S.G. § 3 B 1 .1 ( c ). After review, we affirm Rivera's 188-month sentence.

A. Role Enhancement S ectio n 3B1.1 of the Sentencing Guidelines allows the sentencing court to in crease a defendant's offense level by two, three or four levels as follows: (a) If the defendant was an organizer or leader of a criminal activity th a t involved five or more participants or was otherwise extensive, in crease by 4 levels.

( b ) If the defendant was a manager or supervisor (but not an organizer o r leader) and the criminal activity involved five or more participants o r 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 . § 3B1.1.1 "Section 3B1.1 requires the exercise of some authority in the 1 Rivera was sentenced on September 1, 2005, and after United States v. Booker, 543 U.S.

220, 125 S.Ct. 738 (2005). We review the district court's application of the Guidelines under the same standards as we did pre-Booker, namely, that the district court's interpretation of the Guidelines is reviewed de novo and factual findings are reviewed for clear error. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We first determine, utilizing pre-Booker precedent, whether the district court correctly interpreted and applied the Guidelines to determine o r g a n iz atio n , the exertion of some degree of control, influence, or leadership." United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). The four-level en h an cem en t in § 3B1.1(a) also requires criminal activity that involved five or m o re participants or was otherwise extensive. U.S.S.G. § 3B1.1(a). However, "the assertio n of control or influence over only one individual is enough to support a § 3B1.1(c) enhancement." United States v. Jiminez, 224 F.3d 1243, 1251 (11th C ir. 2000). In assessing a defendant's role in the offense, the factors the courts s h o u ld consider include: [1 ] the exercise of decision making authority, [2] the nature of p articip atio n in the commission of the offense, [3] the recruitment of acco m p lices, [4] the claimed right to a larger share of the fruits of the crim e, [5] the degree of participation in planning or organizing the o ffen se, [6] the nature and scope of the illegal activity, and [7] the d eg ree of control and authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4.

B. Rivera's Enhancement H ere, the district court did not clearly err in enhancing Rivera's sentence by tw o levels for his aggravated role in the offense. Through the testimony of an u n d erco v er agent, the government demonstrated that Rivera (1) negotiated the p rice of a pound of methamphetamine from $11,000 to $12,500; (2) negotiated the te rm s of another sale, including allowing the agent to take the drugs to New York an d pay later; and (3) gave direction to a subordinate in the presence of the agent.

Further, on one occasion, the undercover agent attempted to negotiate prices with th e same subordinate, who told the agent to call Rivera directly. In short, Rivera ex ercised decision-making authority, was the main participant in the commission o f the offense, had a large, if not exclusive, role in planning or organizing the o ffen se, and appeared to control a subordinate's activities. Thus, there is no rev ersib le error in the role enhancement in this case.

AFFIRMED.

the appropriate advisory Guidelines range. See id. at 1178. On appeal, Rivera argues only about the role enhancement and does not raise a reasonableness issue.