United States v. Ferreira, 030608 FED11, 07-13193

Docket Nº:07-13193
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARCOS ANTONIO LIRA FERREIRA, Defendant-Appellant.
Case Date:March 06, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MARCOS ANTONIO LIRA FERREIRA, Defendant-Appellant.

No. 07-13193

United States Court of Appeals, Eleventh Circuit

March 6, 2008

          DO NOT PUBLISH

          Appeal from the United States District Court for the Southern District of Florida, D. C. Docket No. 06-20498-CR-WMH.

         Before ANDERSON, HULL and FAY, Circuit Judges.

          PER CURIAM:

          Marcos Antonio Lira Ferreira appeals his sentence of 24 months' imprisonment, imposed after a jury found him guilty of receiving stolen property, in violation of 18 U.S.C. §§ 2315 and 2. Specifically, Ferreira argues that the district court clearly erred in applying a three-level supervisory-role enhancement, pursuant to U.S.S.G. § 3B1.1(b), because it found that the criminal activity in the instant case was "otherwise extensive" based solely on the number of unknowing participants involved in the offense. Ferreira contends that the number of participants is just one factor for the court to consider and further argues that, based on the totality of the circumstances, the activity was not "otherwise extensive." For the reasons set forth more fully below, we affirm Ferreira's sentence.

         We review the district court's application of the Guidelines de novo and its factual findings for clear error. United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005). "A district court's upward adjustment of a defendant's Guidelines offense level . . . under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error." United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). "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 for an increase in the offense level based on the defendant's role in the offense. U.S.S.G. § 3B1.1. Section 3B1.1(b) outlines two alternative situations in which a defendant's managerial or supervisory role merits a three-level enhancement. "First, enhancement is appropriate where the defendant plays a [managerial or supervisory] role in criminal activity involving five or more participants." United States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994) (discussing the application of a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a)). "A 'participant' is...

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