* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### MAR 13 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ALFREDO VEGA,

Defendant - Appellant. No. 97-6022 (W.D. Okla.) (D. Ct. No. CR-96-115-L)

ORDER AND JUDGMENT *

Before TACHA , BRORBY , and EBEL , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. Background The defendant, Alfredo Vega, was arrested for parti cipating in a drug operation that included his two brothers, Hector Ve ga and Pedro Vega, and a- 2 -

number of others. The Vega brothers, who sometimes acted alone and other times acted jointly, were links in a loose-knit organizat ion of marijuana dealers. They often sold marijuana to a man named Richard Jarvis in Oklahoma City. They also would arrange to transport the drugs to Mr. Jarvis. After his arrest, the defendant pleaded guilty to two counts of a forty-three count indictment. The presentence report recommend ed that, under section 3B1.1(a) of the Sentencing Guidelines, the districtcourt impose a four-level enhancement to Mr. Vega’s sentence. Under that sub section, a court must impose a four-level enhancement if the defendant was “an o rganizer or leader of a criminal activity that involved five or more partic ipants or was otherwise extensive.” U.S.S.G. § 3B1.1(a) (1997). At the se ntencing hearing and in a written opinion that followed, the district court f ound that the evidence did not warrant the four-level enhancement under section 3B 1.1(a). Instead, the court enhanced the defendant’s offense level by two level s for his being a manager of criminal activity under section 3B1.1(c). The defe ndant appeals on two different grounds: (1) that the district court’s factual find ings are clearly erroneous, and (2) that the facts, as found by the district court, do not support an enhancement under section 3B1.1(c). We exercise jurisdiction under 2 8 U.S.C. § 1291 and affirm.- 3 - Discussion The defendant first argues that the factual finding s of the district court are in error. We will overturn a district court’s find ings of fact only if they are clearly erroneous. See United States v. Farnsworth , 92 F.3d 1001, 1009 (10th Cir.), cert. denied , 117 S. Ct. 596 (1996). We will uphold them unles s they are unsupported by the record or, after reviewing the r ecord, “we are left with the definite and firm conviction that a mistake has bee n made.” United States v. Easterling , 921 F.2d 1073, 1077 (10th Cir. 1990) (citations and internal quotation marks omitted). The district court imposed its two-level enhancement under section 3B1.1(c). That provision instructs: “If the defend ant was an organizer, leader, manager, or supervisor in any criminal activity oth er than described in (a) or (b), increase by two levels.” The district court based the enhancement on the following facts: The evidence establishes that defendant exercised m anagement responsibility over the money involved in the trans actions. The funds for transportation expenses were wire-transferred to defendant, who then distributed the funds to the in dividuals who transported the contraband. This is a sufficie nt exercise of managerial activity to impose the two-level enha ncement. United States v. Vega , No. 96-115-L, slip. op. at 3 (W.D. Okla. Dec. 11, 1996). There is substantial support for these find ings in the testimony of Robert Ryan, a police officer from Norman, Oklahoma , who was the only- 4 -

person to testify at the sentencing hearing. Offic er Ryan learned about the defendant’s criminal activity during an assignment to the Drug Enforcement Administration as a task force officer. Officer Ry an testified that Mr. Jarvis purchased marijuana from the defendant through mone y wires. In his wires, Jarvis would include money to cover the expense of transporting the marijuana to Oklahoma City. Upon receiving Jarvis’s money, the defendant would pay a man named Ken Moore to deliver the marijuana to Jarvis. According to the testimony, Mr. Moore was under the impression that he was working for the defendant. The defendant makes much of the fact that there was no evidence that Alfredo Vega held a position of authority over his two brothers or that he was the “boss” of the organization. As the excerpt fro m the district court opinion makes clear, however, the district court did not re ly on any findings about the relationship among the brothers, or about Alfredo’s position in the larger criminal organization, in imposing the enhancement. In fact, the court explicitly refrained from making those factual find ings earlier in the opinion. The district court relied only on the fact that the defendant paid Mr. Moore to deliver marijuana to Oklahoma City. In light of Of ficer Ryan’s testimony, the district court’s findings are not clearly erroneous

. Next, the defendant argues that the facts found by the district court- 5 -

cannot support a conclusion that he was a “manager” under section 3B1.1(c). Thus, the defendant’s second challenge presents a q uestion of how the statutory standard applies to the facts of the case —a mixed question of law and fact. See Supre v. Ricketts , 792 F.2d 958, 961 (10th Cir. 1986). Congress has dictated the standard of review for such questi ons in the sentencing context. The relevant statute states that appellat e courts “shall give due deference to the district court’s application of th e guidelines to the facts.” 18 U.S.C. § 3742(e). This “due deference” standard parallels our standard of review for mixed questions of law and fact in othercontexts. See United States v. Roberts , 898 F.2d 1465, 1468 & n.2 (10th Cir. 1990). We h ave described that standard as follows: Where the mixed question involves primarily a factu al inquiry, the clearly erroneous standard is appropriate. If, however, the mixed question primarily involves the considerationof legal principles, then a de novo review by the appellate court is appropriate. Id. at 1468 (quoting Ricketts , 792 F.2d at 961). The defendant’s first point of argument is primaril y a legal one, and thus we review the question de novo. The defendant cont ends that the district court erred because possession of money alone is not enou gh to support an enhancement for management of criminal activity. R ather, one must exercise control over another person in order to “manage” criminal activity under- 6 -

section 3B1.1(c). The defendant is correct on this point. See United States v. Greenfield , 44 F.3d 1141, 1146 (2d Cir. 1995) (finding that m anagement of assets is not enough to support an enhancement unde r section 3B1.1(c)); United States v. Katora , 981 F.2d 1398, 1404 (3d Cir. 1992) (same); United States v. Giraldo , 111 F.3d 21, 24 (5th Cir.) (same), cert. denied , 118 S. Ct. 322 (1997). The defendant assumes that because management of mo ney alone is insufficient, and because the district court relied on the defendant’s management of the money in imposing the enhancement , the district court erred. We disagree. While it is true that the mere possession of money is insufficient to support an enhancement for being a manager under section 3B1.1(c), it is equally true that one’s control ove r the cash flow of a criminal enterprise is usually indicative of at least some authority over others in the organization. The district court did not base the enhancement sol ely on the fact that Jarvis wired money to the defendant. Only an overl y restrictive reading of the court’s opinion would lead to that conclusion. In determining that the defendant had a managerial role, the court emphasiz ed that Jarvis wired the money to the defendant, “ who then distributed the funds to the individuals w ho transported the contraband .” Vega , slip. op. at 3 (emphasis added).- 7 -

Applying the most reasonable interpretation of the court’s language, the court imposed the enhancement not simply because the defe ndant held the money, but rather because his possession of the money gave him control over distributors such as Ken Moore. Thus, although the defendant correctly identified a limit on the reach of section 3B1.1(c) , the district court did not exceed it. That does not entirely dispose of the defendant’s appeal, however. We must still consider whether the degree of control that Mr. Vega exercised over Mr. Moore qualifies as “management” under section 3 B1.1(c). Unlike the legal question just discussed, this determination p rimarily involves a factual inquiry because it hinges largely on how much contr ol the defendant had over Mr. Moore’s activities. Therefore, on this particu lar question, we defer to the district court’s decision unless it was clearly err oneous. See Ricketts , 792 F.2d at 961. Our cases have interpreted section 3B1.1(c) liberal ly. A court may enhance a sentence under section 3B1.1(c) “upon a s howing that the defendant exercised any degree of direction or control over s omeone subordinate to him in the distribution scheme.” United States v. Back as , 901 F.2d 1528, 1530 (10th Cir. 1990). According to the testimony at th e sentencing hearing, Mr. Vega regularly paid Mr. Moore to drive marijuana to Oklahoma City. Mr.- 8 -

Moore made his trips at the direction of Mr. Vega, and Mr. Moore understood himself to be in the employ of Mr. Vega. See Sent. Hr’g at 29 (“[T]here were times when Alfredo Vega may have supervised or gave direction to one person during one drug transaction . . . .”) (statement of defendant’s counsel). This testimony provides adequate support for the distric t court’s conclusion. The court’s finding is not clearly erroneous. Conclusion For the foregoing reasons, we AFFIRM the judgment o f the district
court. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge