USA v. Edward McElhenny

Filing

Opinion issued by court as to Appellant Edward William McElhenny. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-15959

Date Filed: 08/11/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15959
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-14042-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

EDWARD WILLIAM MCELHENNY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(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 overrepresented 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,
990 F.2d 1179, 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, 605 F.3d 1152, 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.” Id. (quotations omitted).
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, 595 F.3d 1214, 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, 434 F.3d 1270, 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.” Id. (citation omitted). 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 Ndiaye, 434 F.3d at 1304 (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, 677 F.3d 1047, 1066 (11th Cir. 2012) (explaining that issues not
raised in the initial brief are abandoned).
5