USA v. Hugh Fowler, Jr.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 9, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15375
Non-Argument Calendar
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D.C. Docket No. 5:11-cr-00018-MTT-CHW-1
UNITED STATES OF AMERICA,
lllll lllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
HUGH FOWLER, JR.,
l llllllllllllll lllllllllllllllllllllllllDefendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 9, 2012)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Hugh Fowler, Jr., appeals his sentence of 190 months for conspiring to
possess with intent to distribute more than 5 kilograms of cocaine. 21 U.S.C. §§

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846, 841(a)(1), 841(b)(1)(A)(ii). Fowler challenges the four-level enhancement of
his sentence based on the finding of the district court that he was a leader of the
conspiracy. See United States Sentencing Guidelines Manual § 3B1.1(a) (Nov.
2010). We affirm.
Under the Sentencing Guidelines, a defendant receives a four-point increase
in his offense level for being “an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” Id. Relevant
factors that a district court can use in determining whether to enhance for a
leadership role include the defendant’s “exercise of decision making authority”;
his “nature of participation in the commission of the offense”; his “claimed right to
a larger share of the fruits of the crime”; and the extent to which he “participat[es]
in planning or organizing the offense.” Id. cmt. n.4. Because the enhancement is
intended to address “concerns about relative responsibility,” id. cmt. background,
“[t]here can, of course, be more than one person who qualifies as a leader or
organizer of a criminal association or conspiracy,” id. cmt. n.4.
The district court did not clearly err in finding that Fowler was a leader of
the conspiracy. Fowler admitted at his change of plea hearing that he and his
brother “obtain[ed] multi-kilograms amounts of cocaine from a source of supply in
the Atlanta, Georgia[,] area” that was “distributed by members” of the conspiracy.
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Fowler argued at his sentencing hearing that his brother, Andre, controlled the
conspiracy, but the government introduced a recording of a telephone conversation
between the Fowler brothers that established that they shared control of the
conspiracy. During the conversation, Fowler stated how “if we both make us
about a hundred [from selling cocaine] . . . we still got the money to run the
company”; Fowler instructed his brother to “make sure . . . when we do get [a call
about the cocaine], . . . just make sure . . . everybody, they gotta come with that
gwap (money), and . . . work it like that”; and Fowler gloated that “everybody . . .
[would] watch you and watch me and . . . watch and learn.” In the conversation,
Fowler’s brother also referred to the conspiracy as “our company,” and Fowler’s
brother remarked how “we gone have [the cocaine] before everybody else” and
“we got some work to do.” The government also introduced testimony from Lisa
Gigante, an agent of the Drug Enforcement Agency, that she had determined that
Fowler and his brother were “the leaders of the organization” based on her
investigation of the conspiracy and her interviews of confidential informants
“closely associated” with the conspiracy. Fowler did not challenge Gigante’s
testimony. The record supports the finding by the district court that Fowler was a
leader of the conspiracy.
We AFFIRM Fowler’s sentence.
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