The district court's determination of a defendant's role in an offense is reviewed for clear error and the application of the Guidelines is reviewed de novo. United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004) (per curiam). "The government bears the burden of proving by a preponderance of the evidence that the defendant had an aggravating role in the offense."

[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.Id. § 3B1.1(c), cmt. n.4. An individual has a supervisory or managerial role where, for example, he recruits others to make his criminal scheme more effective, sets the prices to be paid for the illegal services, and pays his co-conspirators while keeping a larger portion of the profits for himself. United States v. Njau, 386 F.3d 1039, 1041 (11th Cir.2004). The district court's finding that Hill exercised a supervisory role in the criminal scheme was not clearly erroneous.

While a defendant's role in an offense is a factual finding that we review for clear error, we review de novo the district court's application of the Guidelines to those facts. United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004).

See U.S.S.G. § 3B1.1, cmt. n.4. Although the commentary speaks in terms of distinguishing leadership roles from "mere management" or supervisory roles, we have approved of using the same factors to evaluate whether a defendant occupied a managerial or supervisory role. See United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004). The district court did not clearly err in finding Reyes was a manager or supervisor. Reyes's characterization of his role as a mere "recruiter" is at odds with the record.

See § 3B1.1, comment. (n.4); United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004). There is no requirement that all of these factors must be present; they "are merely considerations for the sentencing judge."

In most of the published cases cited by the government, we affirmed the application of the enhancement when the defendant had recruited co-conspirators and taken other actions indicating control, influence, or leadership over the organization. See, e.g., Ndiaye, 434 F.3d at 1304; United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004); United States v. Perry, 340 F.3d 1216, 1217-18 (11th Cir. 2003). The government cites only one published case that even arguably supports its position that the enhancement may be applied based solely on evidence that the defendant recruited accomplices.

That is simply too late. See, e.g. , United States v. Njau , 386 F.3d 1039, 1042 (11th Cir. 2004) (per curiam) (refusing to consider argument raised for the first time in a 28(j) letter). And even if it weren't, the RFPA does not help Plaintiffs.

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.See U.S.S.G. § 3B1.1 cmt. n.4; United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004) (per curiam). There is no requirement that all of these factors be present; they "are merely considerations for the sentencing judge."

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.See § 3B1.1 cmt. n.4; United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004) (per curiam). Every factor need not be present; they "are merely considerations for the sentencing judge."

Id. The commentary to the Guidelines explains that the defendant is a manager if he managed at least one other participant. Id. § 3B1.1 cmt. n. 2; see also United States v. Njau, 386 F.3d 1039, 1041 (11th Cir.2004). The commentary also explains that “[a] ‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted.”