USA v. Shakim Mike

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13700
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAKIM MIKE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20141-PCH-2
____________________
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2 Opinion of the Court 21-13700
Before J ORDAN, NEWSOM , and BRASHER , Circuit Judges.
PER CURIAM:
Shakim Mike, a federal prisoner, pleaded guilty to posses-
sion of 5 or more kilograms of cocaine with intent to distribute. He
now appeals his below-guideline 150-month sentence. Mr. Mike
claims that the district court improperly applied a two-level en-
hancement for his aggravating role in the offense,
see U.S.S.G.
§ 3B1.1(c), thereby rendering him ineligible for “safety valve” relief
under U.S.S.G. § 5C1.2(a)(4) and 18 U.S.C. § 3553(f). For the rea-
sons below, we affirm Mr. Mike’s sentence.
Challenges to the application of the Sentencing Guidelines
are mixed questions of law and fact.
See United States v. Mandhai,
375 F.3d 1243, 1247 (11th Cir. 2004). We therefore review the dis-
trict court’s findings of fact for clear error and its application of the
Guidelines to the facts
de novo.
See id. Where there are two per-
missible views of the evidence, the district court’s choice between
them cannot be clearly erroneous.
See Anderson v. City of Besse-
mer City, N.C., 470 U.S. 564, 574 (1985).
Based on the evidence of Mr. Mike’s intimate involvement
in the drug smuggling venture, it cannot be said that the district
court clearly erred in applying a two-level enhancement for an ag-
gravating role in the offense. The probation officer initially recom-
mended that Mr. Mike receive a four-level enhancement as an or-
ganizer or leader in the venture.
See PSI at ¶ 34; U.S.S.G.
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21-13700 Opinion of the Court 3
§ 3B1.1(a). Text messages retrieved from one of the co-defendant’s
phones, however, revealed that some of Mr. Mike’s co-conspirators
began setting the groundwork for the venture before his involve-
ment. Nevertheless, the district court concluded that a two-level
enhancement was appropriate because, as it acknowledged, “when
[Mr. Mike] got involved, he got involved.” D.E. 239 at 6.
Indeed, those same messages showed that Mr. Mike char-
tered the private jet used for the venture; arranged the payments
for the jet, including half from his personal bank account, even if it
was unclear where that money originated from; and coordinated
logistics of the venture with an outside individual related to the
drug smuggling venture, and whom the government believed was
the cocaine supplier. He and co-defendant Teshawn Adams also
met with an individual in St. Thomas, U.S. Virgin Islands, about
smuggling the cocaine. For his troubles, Mr. Mike was to receive
a payout larger than several of his co-defendants. These facts sug-
gest that Mr. Mike had more than a minor role and some degree of
autonomy and control in the drug smuggling venture.
See United
States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (stating that
a defendant must exercise some authority in the organization and
exert “some degree of control, influence, or leadership” to qualify
for a § 3B1.1 enhancement) (citation omitted).
Further, the factual proffer for the plea—the facts of which
Mr. Mike agreed the government could prove beyond a reasonable
doubt had the case proceeded to trial—provided that: (1) he and
three of his co-defendants were the only non-crew passengers
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4 Opinion of the Court 21-13700
aboard the private charter jet containing 294 plastic-wrapped bricks
of cocaine; (2) he arranged to smuggle the cocaine with Mr. Adams;
(3) he and Mr. Adams cemented the participation of another co-de-
fendant a mere three days before the flight; and (4) after he ab-
sconded from the scene of the crime, he directed another co-de-
fendant to pick him up and got two other individuals involved in
the venture to drive him from Miami to Orlando.
See United States
v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000) (holding that the
assertion of control or influence over just one person is enough to
support an enhancement under § 3B1.1(c)).
See also United States
v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (concluding that,
although others may have had a larger role in the conspiracy, de-
fendant nevertheless exercised authority over the organization suf-
ficient to merit a four-level aggravating role enhancement by re-
cruiting and instructing two other co-conspirators). Consequently,
there was sufficient evidence to support Mr. Mike’s two-level ag-
gravating role enhancement.
Mr. Mike’s arguments to the contrary largely rest on an al-
ternative interpretation of the same set of facts. For example, he
argues on appeal that he “merely took direction from the leaders
in the conspiracy.” There is not, however, any direct evidence of
his co-defendants dictating his conduct in the venture. Certainly,
many of the findings in favor of the enhancement also rely on fac-
tual inferences from the available evidence. But Mr. Mike is not
entitled to reversal simply because the district court chose one valid
reading of those facts over his.
See Anderson, 470 U.S. at 574. Nor
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21-13700 Opinion of the Court 5
do Mr. Adams’ and co-defendant Roystin David’s more prominent
roles preclude Mr. Mike from receiving an aggravating role en-
hancement.
See United States v. Ramirez, 426 F.3d 1344, 1355
(11th Cir. 2005) (stating that more than one participant in a criminal
venture may be eligible for an § 3B1.1(c) enhancement).
See also
§ 3B1.1, cmt. (n.4).
For these reasons, the district court did not clearly err in de-
termining that Mr. Mike’s conduct warranted a two-level aggravat-
ing role enhancement. Accordingly, because he properly was sub-
ject to the aggravating role enhancement, he necessarily was pre-
cluded from obtaining safety-valve relief, and the district court did
not err in failing to grant him such relief.
See § 5C1.2(a)(4) (stating
that “an organizer, leader, manager, or supervisor of others in the
offense” is ineligible for safety-valve relief); § 3553(f)(4) (same).
AFFIRMED.
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