Pellon v. Business Representation International, Inc.
291 F. App'x 310
11th Cir.
2008
Check Treatment
Docket

Jason A. PELLON, Danny Balladares, et al., Plaintiffs-Appellants, v. BUSINESS REPRESENTATION INTERNATIONAL, INC., Joseph C. Lorenzo, Defendants-Appellees.

No. 08-10133

United States Court of Appeals, Eleventh Circuit

Sept. 3, 2008

was obvious or clear under current law. See . Accordingly, she has not demonstrated plain error, and we reject her constitutional challenge to § 2M5.2.

Finally, Stringer asserts that she should have been granted a mitigating-role reduction because Schenk stole the equipment, found people who could assemble it, and “set up the internet websites,” while she only shipped a few of the items to Australia and New Zealand, allowed her name and bank accounts to be used for payment, and undertook “some brief internet correspondence with a customer.” Appellant‘s Br. at 9.

A court‘s finding regarding a defendant‘s role in the offense is reviewed for clear error. (en banc). Because Stringer clearly requested a mitigating-role reduction in her objections to the PSI, we review the district court‘s denial for clear error, rather than plain error, as requested by the government. “The proponent of the downward adjustment ... always bears the burden of proving a mitigating role in the offense by a preponderance of the evidence.” . Pursuant to U.S.S.G. § 3B1.2, a defendant may receive a four-level or two-level reduction in his base offense level where his role in the offense was minimal or minor, respectively. U.S.S.G. § 3B1.2. The district court‘s ultimate determination of the defendant‘s role in the offense should be informed by “the defendant‘s role in the relevant conduct for which she has been held accountable at sentencing, and, second, her role as compared to that of other participants in her relevant conduct.” . “In making the ultimate determination of the defendant‘s role in the offense, the sentencing judge has no duty to make any specific subsidiary factual findings ... [and, s]o long as the district court‘s decision is supported by the record and the court clearly resolves any disputed factual issues, a simple statement of the district court‘s conclusion is sufficient.” .

The record indicates that Stringer had full knowledge and was an equal partner with Schenk in the conspiracy. She traveled to the base to receive the equipment from Schenk, used her email, PayPal, eBay, and bank accounts to conduct the transactions, and personally corresponded with and shipped the equipment to individuals in foreign countries. In light of her intimate and complete knowledge of, and participation in, the criminal scheme, the district court did not clearly err in denying her mitigating-role request.

III. CONCLUSION

For the reasons set forth above, we find no error on the part of the sentencing court and AFFIRM Stringer‘s sentence.

AFFIRMED

Jamie H. Zidell, J.H. Zidell, P.A., Miami Beach, FL, for Plaintiffs-Appellants.

Before BIRCH and MARCUS, Circuit Judges, and FORRESTER,* District Judge.

PER CURIAM:

Appellants, a group of fifty-three airport employees commonly known as “skycaps,” appeal from the district court‘s entry of summary judgment in favor of their employer, Business Representation International, Inc. (“BRI“), and BRI‘s sole owner, Joseph C. Lorenzo (together, “the defendants“). The skycaps allege that the defendants violated certain minimum wage requirements of the Fair Labor Standards Act (“FLSA“), 29 U.S.C. § 201 et seq. On appeal, they contend that the district court erred in rejecting their claims that: (1) BRI failed to give them adequate notice of its intention to use their tips towards its minimum wage obligations under the FLSA; (2) BRI required them to perform “non-tipped” tasks beyond their ordinary job responsibilities without appropriate compensation; and (3) a fee they were required to collect from customers constituted impermissible tip-sharing within the meaning of the FLSA.

We review a district court‘s grant of summary judgment de novo. See, e.g., . Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). On summary judgment, we “view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” .

After thorough review of the record and careful consideration of the parties’ briefs and oral argument, we affirm on the basis of the district court‘s well-reasoned order issued on December 17, 2007. See .

AFFIRMED.

Notes

*
Honorable J. Owen Forrester, United States District Judge for the Northern District of Georgia, sitting by designation.