USA vs Aaron Wilbert Freeman

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 9, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10931
Non-Argument Calendar
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D.C. Docket No. 4:09-cr-00035-RLV-WEJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
AARON WILBERT FREEMAN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(September 9, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Aaron Wilbert Freeman appeals his total 87-month sentence for conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 1349, and money laundering, in

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violation of 18 U.S.C. § 1956. He argues that the district court erroneously
applied a four-level role enhancement under U.S.S.G. § 3B1.1(a) because he did
not exercise control over any of his co-conspirators. For the reasons set forth
below, we affirm Freeman’s sentence.
I.
Freeman worked as a scaler for Temple-Inland, Inc. (“TI”), a paper and
lumber corporation that bought timber by the truckload from timber brokers. As a
scaler, Freeman weighed the trucks as they entered and exited the mill. After a
truck was weighed, TI’s computers would produce a paper scale ticket and
transmit the weight of the timber and the broker’s information to its headquarters.
TI paid the brokers based on the amount of timber the brokers’ drivers had
delivered, and the truck drivers used the paper scale tickets to obtain payment for
their deliveries from their brokers. In 2003, Freeman discovered how to make the
computers produce two weight readings for a single truckload of timber. He could
then credit the nonexistent load to a broker and print a paper scale ticket for a
driver to submit to that broker for payment.
Freeman approached Robert Frank Ferguson, George Tate, and Andrew
Carthern (“Andrew”), all truck drivers, and Kevin Fields, the owner of a trucking
company, about submitting fake paper scale tickets to their brokers for payment.
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Ferguson accepted fake paper scale tickets from 2003 until January 2005, and his
broker paid his boss approximately $112,000 for nonexistent loads during that
time. Tate participated in the conspiracy from December 2004 until March 2006,
during which time his brokers paid him approximately $167,000 for nonexistent
loads. Tate left the conspiracy because Freeman was pressuring him to take an
increasing number of fake paper scale tickets. Andrew approached his father,
Roger Carthern (“Roger”), about participating in this scheme, and two brokers
ultimately paid Andrew and Roger approximately $313,000 for nonexistent loads.
Andrew and Roger paid Freeman more than half of that sum. Fields accepted fake
paper scale tickets from September 2004 until April 2006, during which time his
broker paid him approximately $2,964,268 for nonexistent loads. Fields
approached Jason Joseph about taking fake paper scale tickets. Between April
2005 and September 2005, Joseph’s broker paid him approximately $828,692 for
nonexistent loads. Joseph shared this money with Fields and Freeman. TI paid
approximately $4,116,978 for nonexistent loads over the course of this conspiracy.
Freeman received a four-level role enhancement under U.S.S.G. § 3B1.1(a)
because he was an organizer or leader of the conspiracy. His total adjusted
offense level was 29, he had a criminal history category of I, and his guideline
range was 87 to 108 months’ imprisonment.
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At sentencing, Freeman argued that he did not have a managerial position in
the conspiracy. None of the participants controlled any of the other
co-conspirators, and each conspirator was necessary for the crime to be successful.
The court overruled Freeman’s objection to the four-level role enhancement
because he had organized this crime, which would not have occurred without
Freeman. The court sentenced Freeman to 87 months on each count, to run
concurrently. Freeman objected that his guideline range was improperly
calculated based on his objection to the role enhancement.
II.
We review a district court’s application of a § 3B1.1 role enhancement for
clear error. United States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009).
Under the Sentencing Guidelines, a defendant receives a four-point offense level
increase for being “an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Relevant
factors in determining whether a § 3B1.1(a) enhancement is warranted include:
(1) 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.
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Martinez, 584 F.3d at 1026 (quotation omitted). It is not necessary that every
factor is present for the enhancement to be applied in a particular case. Id. A role
enhancement is appropriate only where the defendant exercised “some control,
influence or decision-making authority over another participant in the criminal
activity.” Id. It is insufficient that a defendant merely managed the assets of the
conspiracy. Id. The enhancement is intended “to address concerns about relative
responsibility.” Id. (quotation omitted). We upheld a role enhancement under
§ 3B1.1(a) where the defendant recruited and instructed two co-conspirators.
United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006).
The district court did not clearly err in applying a four-level role
enhancement under § 3B1.1(a). See Martinez, 584 F.3d at 1025. A number of1
factors support the application of this enhancement. Freeman concocted the entire
criminal scheme and recruited Ferguson, Tate, Andrew, and Fields to participate in
the conspiracy. Thus, the nature of Freeman’s participation, his recruitment of
co-conspirators, and the degree to which he organized the conspiracy all support
the application of the role enhancement. See id. at 1026. Next, it is not clear what
Freeman has waived any argument that the criminal activity did not involve at least five1
participants or that it was not otherwise extensive because he did not raise this issue in his initial
brief. See United States v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th Cir. 2005) (stating that the
defendant waived an argument not raised in his initial brief).
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percentage of the profits Freeman demanded from each co-conspirator, but
Andrew and Roger paid Freeman more than half of the approximately $313,000
they received for submitting fake paper scale tickets. It thus appears that
Freeman’s claimed share of the profits of the conspiracy supports the application
of the role enhancement as well. See id. The extensive nature and scope of the
conspiracy support the application of the enhancement because this conspiracy
lasted nearly three years and caused a loss of approximately $4,116,978. See id.
The final factor, the degree of control Freeman exercised over his
co-conspirators, also weighs in favor of applying the enhancement. See Martinez,
584 F.3d at 1026. Freeman exercised control over Tate by pressuring him to take
an increasing number of fake paper scale tickets. In addition, Freeman exercised
control over the other conspirators because he was the only conspirator who could
produce the fake paper scale tickets, without which the entire scheme would have
been impossible. Based on Freeman’s role in organizing this conspiracy, his
recruitment of four co-conspirators, the fact that he obtained at least some of the
conspiracy’s profits, and the fact that only he could produce the fake paper scale
tickets essential to the conspiracy, the four-level role enhancement was properly
applied in this case. See Ndiaye, 434 F.3d at 1304.
For the foregoing reasons, we affirm Freeman’s sentence.
AFFIRMED.
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