*

 The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and conditions of 10th

Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 16 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KIMBERLY DIANE JARVIS,

Defendant - Appellant.

No. 98-6124

(D.C. No. 97-CR-188)

(Western District of Oklahoma)

ORDER AND JUDGMENT*

Before ANDERSON, McKAY and LUCERO, Circuit Judges.

Kimberly Diane Jarvis appeals her sentence for bank fraud aiding and

abetting, 18 U.S.C. §§ 1344, 2(b). She claims that the district court erred in

imposing a two-level enhancement pursuant to U.S.S.G. § 2F1.1(b)(2)(A) for

more than minimal planning and a three-level enhancement pursuant to U.S.S.G. §

3B1.1(b) for a managerial or supervisory role. We exercise jurisdiction under 28

U.S.C. § 1291 and Fed. R. App. P. 4(b), and affirm.
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Jarvis participated in a bank fraud scheme, led by Eric Roberts, in which

participants opened accounts at various banks, deposited worthless checks, and

then withdrew the funds. At least three other persons—Deana Mitchell, Brady

Romines, and Gena Riley—also participated in the scheme.

Jarvis pled guilty to one count of bank fraud aiding and abetting, 18 U.S.C.

§§ 1344, 2(b). The district court, using the 1997 edition of the Guidelines

Manual, imposed adjustments including those at issue here, resulting in a total

offense level of twelve. 

“We review the district court's interpretation and application of the

sentencing guidelines de novo. We review the court's underlying findings of fact

for clear error. We will accept these factual findings unless the record does not

support them or, after reviewing the record, ‘we are left with the definite and firm

conviction that a mistake has been made.’” United States v. Pappert, 112 F.3d

1073, 1078 (10th Cir. 1997) (quoting United States v. Easterling, 921 F.2d 1073,

1077 (10th Cir.1990)) (internal citations omitted). “However, a challenge to the

conclusion reached that one is a supervisor as defined in the guidelines is

primarily legal and the trial court’s determination on it is reviewed under a de

novo standard.” United States v. Brown, 995 F.2d 1493, 1501 (10th Cir. 1993)

(citing United States v. Backas, 901 F.2d 1528, 1530 (10th Cir. 1990)).
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We conclude that the district court did not clearly err in finding that Jarvis

engaged in more than minimal planning. Section 2F1.1(b)(2) provides for a twolevel enhancement “[i]f the offense involved . . . more than minimal planning.” 

The relevant Application Notes specify that 

“More than minimal planning” means more planning than is typical

for commission of the offense in a simple form. . . . “More than

minimal planning” is deemed present in any case involving repeated

acts over a period of time, unless it is clear that each instance was

purely opportune. Consequently, this adjustment will apply

especially frequently in property offenses. 

U.S.S.G. § 1B1.1, comment (n.1). Jarvis does not dispute her participation in

opening multiple bank accounts in furtherance of the fraud scheme. Rather, she

argues that she was simply a “follower” and a “pawn” in Roberts’s scheme. This

does not rebut the fact that she clearly participated in repeated acts sufficient to

fall within the relevant guideline. Moreover, Jarvis’s reliance on United States v.

Rice, 52 F.3d 843 (10th Cir. 1995) is entirely misplaced. In that case, we held

that the defendant’s multiple fraudulent tax returns did not constitute

“sophisticated means” for purposes of U.S.S.G. § 2T1.3(b)(2). See Rice, 52 F.3d

at 848-49. However, contrary to Jarvis’s contention, we affirmed the district

court’s enhancement of Rice’s sentence pursuant to U.S.S.G. § 2F1.1(b)(2)(A),

based in part on the fact that Rice carried out his scheme over three consecutive

years. See Rice, 52 F.3d at 850; see also United States v. Williams, 966 F.2d 555

(10th Cir. 1992) (holding computer embezzlement scheme constitutes more than
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minimal planning); United States v. Sanchez, 914 F.2d 206 (10th Cir. 1990)

(holding fifteen uses of stolen credit card constitutes more than minimal

planning).

Jarvis additionally challenges the district court’s enhancement of her

sentence for a managerial or supervisory role, arguing that she was merely one of

several followers of Roberts, and simply carried out his instructions. The

Guidelines provide for a three-level enhancement “[i]f the defendant was a

manager or supervisor (but not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise extensive.” U.S.S.G. §

3B1.1(b). The Application Notes provide:

In distinguishing a leadership and organizational role from one of

mere management or supervision, titles such as “kingpin” or “boss”

are not controlling. Factors the court should consider include 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. There can, of course, be more than one person

who qualifies as a leader or arranger of a criminal association or

conspiracy. This adjustment does not apply to a defendant who

merely suggests committing the offense.

U.S.S.G. § 3B1.1, comment (n.4). Upon review of the record, we agree that,

taking into account the above factors, Jarvis played a supervisory role within the

meaning of the guideline. There was evidence–although disputed–sufficient to

support the district court’s finding that Jarvis recruited Riley as an accomplice. 
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Additionally, there was evidence, although again disputed, that Jarvis directed the

activities of Riley and Mitchell. Thus, although the statements of Riley and

Mitchell are disputed by Jarvis’s own statements, given that we review the district

court’s factual findings for clear error, see United States v. Torres, 53 F.3d 1129,

1142 (10th Cir. 1995), this alone does not leave us “with the definite and firm

conviction that a mistake has been made.” Easterling, 921 F.2d at 1077. In

light of those factors found by the district court—recruitment of accomplices and

direction of others—we conclude that the district court appropriately applied

U.S.S.G. § 3B1.1(b). We conclude that this case is unlike United States v.

Albers, 93 F.3d 1469, 1487-89 (10th Cir. 1996), wherein we reversed an

enhancement under § 3B1.1 because the evidence was not sufficient to show the

defendant played a leadership role. In Albers, we emphasized that “the gravamen

of this enhancement is control, organization, and responsibility for the actions of

other individuals.” Id. at 1488 (quoting United States v. Roberts, 14 F.3d 502,

519 (10th Cir. 1993)). Although Jarvis was not the primary leader of this scheme,

this does not preclude a finding that she played a lesser, but still supervisory role. 

See U.S.S.G. § 3B1.1 & comment (n.4). The evidence indicates that, while

Roberts was the ultimate organizer, Jarvis nevertheless exercised supervisory

authority over others. Although the evidence of Jarvis’s supervisory role is

contested, principally by Jarvis’s own statements, we are convinced, upon review
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of the record, that the government carried its burden of showing factors sufficient

to justify enhancement of her sentence under U.S.S.G. § 3B1.1(b).

AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge