The Honorable Jimm Larry Hendre n, Chief Judge, United States District Court 1 for the Western District of Arkansas.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2195

___________ United States of America, * * Appellee, * *
v. * Appeal from the United States * District Court for the Rodney Paul Canada; Barbara * Western District of Arkansas. Canada, * * [UNPUBLISHED] Appellants. *

___________ Submitted: November 5, 1998 Filed: November 10, 1998

___________ Before FAGG, BEAM, and LOKEN, Circuit Judges.

___________ PER CURIAM.
Ro dney and Barbara Canada pleaded guilty to conspiring to sell stolen moto r vehicles, in violation of 18 U.S.C. §§ 371, 2313. The district court sentenced Rodney 1 to 39 months imprisonment follo wed by 3 years supervised release, and Barbara to 15 months imprisonment followed by 3 years supervised release. The Canadas challenge their sentences, and we affirm.-2-

For reversal, the Canadas argue the district court clearly erred in establi shing their total offens e levels based on an enhancement for participating in an organized scheme to steal vehicles, pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(b)(5) (1997), and in applying two-level role-in-the-offense enhancements for being organizers o r leaders of criminal activity, pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (1997). In addition, the Canadas argue that the enhancements are not supported by any evidence other than hearsay evidence that t he court indicated it would not consider. At sentencing, a government witness testified that the Canadas offered stolen vehicles for sale to a third party on multiple occasions , and sold the third party three stolen vehicles fro m Western Arkansas and Eastern Oklahoma; that a co-defendant indicated he an d another co-defe ndant had stolen these vehicles at the Canadas & direction, and both codefendants lived with th e Canadas during this time; that the Canadas received the bulk of the proceeds from these sales; and that Rodney told the third party that Rodney had someone who would steal for him.

Based on this testimony, we conclude the district court did not clearly err i n assessing the organized-scheme enhancement. See U. S. Sentencing Guidelines Manual § 2B1.1(b)(5) (1997) (increase offense level to 14 if offe nse involved organized scheme to steal vehicles, and offense level would otherwise b e less than 14). We also conclude the distri ct court did not clearly err in determining the Canadas were organizers o r leaders pursuant to section 3B1.1(c). See U.S. Se ntencing Guidelines Manual § 3B1.1, comment. (n.4) (1997) (court should consider, among other things, defendan t & s decisionmaki ng authority and degree of participation in planning offense, whether defendan t recrui ted accomplices, whether defendant claimed greater profit from crime, an d defendant & s control and authority over others); United States v. Ballew , 40 F.3d 936 , 944 (8th C ir. 1994) (standard of review; no clear error in applying § 3B1.1(c ) enhancement where defendant in tr uck-theft/insurance-fraud scheme “stood to gain the most” fromscheme, and enlisted accomplices to assist in theft and concealment o f trucks), cert. denied , 514 U.S. 1091 (1995). Finally, we conclude the Canadas & argument that the district court erred in relying on hearsay evidence during the-3-

sentencing hearing is meritless. See United States v. Wise , 976 F.2d 393, 401-02 (8th Cir. 1992) (en banc), cert. denied , 507 U.S. 989 (1993). In any event, we conclude the enhancements were supportable without reference to this hearsay evidence.
Accordingly, we affirm.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.