* This order and judgment is not binding precedent, except under the doctrines of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

### DEC 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. SAMUEL ANTHONY CARDENAS,

Defendant - Appellant. No. 97-8012 (D. Ct. No. 96-CR-91-1) (D. Wyo.)

ORDER AND JUDGMENT *
Before ANDERSON, TACHA, and BALDOCK, Circuit Judges

.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument would not 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 cause is therefore ordered sub mitted without oral argument.- 2 -

Defendant Samual Cardenas pleaded guilty to a countof conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846, and a count of criminal forfeiture under 21 U.S.C. § 853(a). The district court enhanced Mr. Cardenas ’s sentence by two levels, pursuant to U.S. Sentencing Guideline § 3B1.1(c), f or his being an “organizer, leader, manager, or supervisor” in criminal activity. Mr. Cardenas now appeals that enhancement. We take jurisdiction under 28 U. S.C. § 1291 and affirm. Background In the spring of 1996, the Drug Enforcement Agency and the Laramie County Sheriff’s Office, with the aid of a confiden tial informant, began investigating Richard Castillo for suspected distri bution of cocaine in Cheyenne, Wyoming. Mr. Castillo eventually led the investigators to Mr. Cardenas, his source of cocaine. On April 22, Mr. Castillo phoned the informant and asked her to meet him and Mr. Cardenas at the Four Winds bar. Mr. Castil lo said that Mr. Cardenas would have four ounces of cocaine for sale. When t he informant arrived at the bar’s parking lot, she entered the backseat of Mr. Cardenas’s car. Leonard Cook sat in the passenger seat next to Mr. Cardenas, and Mr. Castillo was sitting in the backseat with the informant.- 3 -

Mr. Cardenas told Mr. Cook that four one-ounce pack ets of cocaine were hidden under the passenger seat of the car. Mr. Ca rdenas then directed Mr. Cook to give one of the packets to the confidential info rmant. The informant paid Mr. Cook. Mr. Cook handed the money to Mr. Cardenas, w ho counted it. The next day, the informant bought the remaining three ounce s from Mr. Cook at Mr. Castillo’s residence, with Mr. Cardenas present. T he district court found that Mr. Cardenas reaped the profit from these transactions. The informant later called Mr. Cardenas, and they a greed to conduct another sale of cocaine on May 15, in Longmont, Col orado. There, Mr. Cardenas, the informant, and Mr. Cook went to a laundromat. Mr. Cardenas told the informant: “Give me the money.” Sentencing Hearing at 17. When the informant hesitated because she thought she was dealing with Mr. Cook, Mr. Cardenas said, “[The cocaine] is mine, and you can deal with me.” Id. The informant purchased cocaine from Mr. Cardenas on three more occasions a nd never dealt with Mr. Cook again. At the sentencing hearing, DEA Agent Dave Lytal tes tified that Mr. Cardenas’s girlfriend had told him that Mr. Cook so ld cocaine for Mr. Cardenas. The confidential informant testified that when she was around the two men, Mr. Cook often took instructions from Mr. Cardenas: “[C ardenas] did order him- 4 -

around a lot in the times that I was around where t hey were. ‘Leonard, do this, do that.’” Sentencing Hearing at 27. Discussion Mr. Cardenas argues that the evidence in this case does not support the enhancement of his sentence pursuant to U.S.S.G. § 3B1.1(c). We accept the district court’s factual findings supporting an enh ancement under U.S.S.G. § 3B1.1(c) unless clearly erroneous, and we review de novo the court’s legal interpretations. See United States v. Farnsworth , 92 F.3d 1001, 1009 (10th Cir. 1996). Under § 3B1.1(c), a district court should increase a defendant’s offense level by two levels “[i]f the defendant was an orga nizer, leader, manager, or supervisor in any criminal activity other than desc ribed in (a) or (b).” U.S.S.G. § 3B1.1(c). Subsections (a) and (b) are not releva nt to this case. “In order to be a supervisor, one needs merely to give some form of d irection or supervision to someone subordinate in the criminal activity for wh ich the sentence is given.” United States v. Backas , 901 F.2d 1528, 1530 (10th Cir. 1990). Even trivi al forms of direction satisfy the definition of “supervision.” See United States v. Moore , 919 F.2d 1471, 1477 (10th Cir. 1990) (finding that defendant supervised person who answered door when drug purchasers arriv ed at defendant’s apartment and sold drugs in defendant’s absence).- 5 -

The district court based its enhancement on the rel ationship between Mr. Cook and Mr. Cardenas. Mr. Cardenas characterizes Mr. Cook as, at most, someone who purchased drugs from Mr. Cardenas and t hen, without direction from Mr. Cardenas, distributed them as he pleased. It is true that merely selling cocaine to a customer who may resell does not, with out more, make one an organizer or leader under § 3B1.1(c). See United States v. Owens , 70 F.3d 1118, 1129 (10th Cir. 1995); see also Moore , 919 F.2d at 1477. The district court, however, did not base the enhancement on any sale o f drugs from Mr. Cardenas to Mr. Cook. The district court emphasized a number of other fac tual findings that led to its finding of supervision. First, outside the Fou r Winds bar, Mr. Cardenas told Mr. Cook where to find the drugs in the car. Secon d, he directed Mr. Cook to give the informant one ounce of cocaine. After the informant gave Mr. Cook money for the sale, Mr. Cook turned it over to Mr. Cardenas, who counted it. In addition, the court pointed to Mr. Cardenas’s laterstatement, made to the informant in the presence of Mr. Cook, that he owne d the cocaine that Mr. Cook had been selling to her. See Sentencing Hearing at 88. (“It was Cardenas’s drugs. It was Cardenas’s money.”). Also, the court found Mr. Cook, who denied that he acted under the control of Mr. Cardenas, to be less credible than Mr. Cardenas’s girlfriend and the confidential informan t, both of whom testified that- 6 -

Mr. Cook was continually acting under the supervisi on of Mr. Cardenas. Since the record supports these findings, we cannot concl ude that they are clearly

erroneous. All of these findings suggest that Mr. Cook was act ing under Mr. Cardenas’s supervision during the sales of drugs inthe Four Winds parking lot, at Mr. Castillo’s residence the next day, and outside the laundromat. Therefore, the findings suffice, under the low threshold of United States v. Backas , 901 F.2d 1528, 1530 (10th Cir. 1990), to support the enhance ment under section 3B1.1(c). We AFFIRM. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge