*

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered

submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 29 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARMONDO VALDEZ-ARIETA,

Defendant-Appellant.

No. 97-8014

(D.C. No. 96-CR-0026-D)

(District of Wyoming)

Submitted on the briefs:

*

Patrick J. Crank, Assistant United States Attorney, Casper, Wyoming (David D.

Freudenthal, United States Attorney, District of Wyoming, with him on the brief),

for Plaintiff-Appellee.

Maynard D. Grant, Grant & Newcomb, Seattle, Washington, for DefendantAppellant.

Before BRORBY, EBEL and KELLY, Circuit Judges.

EBEL, Circuit Judge.
- 2 -

 Defendant-Appellant Armando Valdez-Arieta ("Valdez") pled guilty to

conspiracy to possess with intent to distribute and distribution of illegal drugs. 

The district court enhanced Valdez's offense level by two levels pursuant to

U.S.S.G. § 3B1.1(c) (1995) for his role as an organizer of a criminal enterprise. 

Valdez now appeals. We affirm.

BACKGROUND

In June, 1995, Valdez agreed to join Deborah Lynn Neary ("Neary") in a

criminal venture to supply cocaine, methamphetamine, and marijuana to users in

the Rock Springs, Wyoming, area. Neary and Valdez worked as team, running the

enterprise as joint partners. Neary had been distributing drugs prior to her

association with Valdez, but Valdez's participation in the operation allowed Neary

to expand the business significantly. Specifically, Valdez recruited the services

of additional individuals to act as suppliers for the conspiracy -- none of whom

would have worked with Neary without Valdez's involvement in the scheme --

and was able to acquire a much larger amount of drugs than Neary had been able

to distribute alone. These suppliers were of Hispanic origin and only trusted

Valdez because of his Hispanic background and because he could converse with

them in Spanish. Where Neary previously had been dealing relatively small

amounts of drugs, i.e. regularly only eighths of an ounce of cocaine, Neary and

Valdez together entered into deals involving much larger quantities. Neary and
1

 The district court did not include the unpurchased kilogram of methamphetamine

in calculating the amount of drugs involved in the offense at sentencing.

- 3 -

Valdez were on the verge of purchasing a kilogram of methamphetamine for

distribution, and their plans were forestalled only because of their timely arrest.1

Valdez had eight ounces of cocaine in his possession for distribution at the time

of his arrest. Valdez also coordinated the activities of the new suppliers,

instructed at least one of the suppliers on how to cut and weigh the drugs,

determined the financial terms for many of the sales, and shared responsibilities

with Neary for overseeing the operation.

Valdez eventually pled guilty to conspiracy to possess with intent to

distribute and distribution of cocaine and methamphetamine in violation of 21

U.S.C. § 846(a)(1). As part of the plea agreement, the government dismissed a

second charge against Valdez for distributing methamphetamine and aiding and

abetting the distribution of methamphetamine. The government also agreed that

Valdez was entitled to a three-level reduction under the Sentencing Guidelines

(the "Guidelines") for his acceptance of responsibility pursuant to U.S.S.G. §

3E1.1(a) (1995). However, the district court imposed a sentence of 144 months

of imprisonment and 5 years of supervised release after assessing a two-level

enhancement under U.S.S.G. § 3B1.1(c) (1995) for Valdez's role in organizing the

drug distribution operation. Valdez now appeals the sentence enhancement.
2

 U.S.S.G. § 3B1.1 (1995) states:

Based on the defendant's role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive, increase by 4

levels.

(b) If 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, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any

criminal activity other than described in (a) or (b), increase by 2 levels.

- 4 -

DISCUSSION

 Section 3B1.1 of the Guidelines allows a court to enhance a sentence for

the defendant's aggravating role in the underlying offense. Section 3B1.1(c)

states that two offense levels should be added to the sentencing calculation if the

"defendant was an organizer, leader, manager, or supervisor in any criminal

activity" involving less than five participants.2 A district court "must make

specific findings" and advance a factual basis to support an enhancement under §

3B1.1. United States v. Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996) (quoting United

States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995)). "[E]ven if the record

overwhelmingly supports the enhancement, appellate fact-finding cannot

substitute for the district court's duty to articulate clearly the reasons for the

enhancement." Id. 

We review a district court's factual findings supporting a sentence

enhancement for clear error. United States v. Pelliere, 57 F.3d 936, 940 (10th
- 5 -

Cir. 1995). The district court's application of those facts to the sentencing

guidelines is reviewed de novo. Id. Under the clearly erroneous standard, we

will not reverse the district court's findings unless they are "without factual

support in the record, or unless after reviewing all the evidence, we are left with

the definite and firm conviction that a mistake has been made." United States v.

Mandilakis, 23 F.3d 278, 280 (10th Cir. 1994) (quoting United States v. Brown,

995 F.2d 1493, 1500 (10th Cir. 1993)).

Valdez contends both that the district court did not make the proper factual

findings necessary to support a sentence enhancement calculation under §

3B1.1(c) and that the record reveals no evidentiary basis for the enhancement. 

We disagree. The district court found that:

[A] role adjustment of two more accurately reflects the defendant's 50/50

partnership with Deborah Neary. Clearly the defendant, because of his

contacts, played an instrumental role in obtaining the drugs which he and

Miss Neary then distributed. Defendant also played a substantial role in

organizing the acquiring of these drugs on a number of occasions.

The district court concluded that Valdez significantly enhanced the drug dealing

operation by providing a much larger supply of drugs from sources to which

Neary did not have access and by increasing the volume of drugs supplied by

Neary's prior sources. Although the district court did not use the exact words of §

3B1.1(c) to describe Valdez's role in the endeavor, it did find that he played "a

substantial role in organizing" the criminal activity. We hold that the district
- 6 -

court's statement constituted a sufficiently clear and articulated reason for the

enhancement under the Guidelines.

We also conclude that the district court properly found that Valdez was an

organizer of the conspiracy. Valdez argues that the district court never found that

he exercised any control over other parties involved in the conspiracy and adds

that the record yields no evidence that he exercised any control over subordinates

or underlings in the conspiracy. While we agree with Valdez on both points, we

nevertheless conclude that the district court did not err by applying § 3B1.1(c). 

Section 3B1.1(c) allows an enhancement for leaders, supervisors, managers

and organizers. Valdez complains that he could not have controlled or directed

Neary because they acted together as joint partners and because one can only

direct underlings or subordinates, not an equal partner. Valdez, however,

misreads this court's prior cases interpreting § 3B1.1(c). While control over

others is required for a finding that a defendant was a leader, supervisor, or

manager, we hold that no such finding is necessary to support an enhancement for

acting as an organizer under § 3B1.1(c). A defendant can organize an illegal

activity without exercising control over the other participants in the activity. 

Thus, the fact that Neary was a co-partner instead of a subordinate does not

preclude an enhancement in Valdez's offense level for acting as an organizer

pursuant to § 3B1.1(c). Cf. United States v. Hutching, 75 F.3d 1453, 1458 (10th
- 7 -

Cir.) (in applying 21 U.S.C. § 848(c)(2)(A), we differentiated between an

organizer "who arranges a number of people engaged in separate activities into an

essentially orderly operation" and a supervisor who "gives orders or directions to

another person who carries them out."), cert. denied, 116 S. Ct. 2502 (1996).

A defendant satisfies § 3B1.1 by controlling or organizing others in a

criminal activity. United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990)

(the key "determinants of the applicability of section 3B1.1 are control or

organization.") (emphasis added). In order for § 3B1.1 to apply, "the defendant

must have exercised some degree of control over others involved in the

commission of the offense or he must have been responsible for organizing others

for the purpose of carrying out the crime." Id. (emphasis added); see also United

States v. Edwards, 69 F.3d 419, 439 (10th Cir. 1995), cert. denied, 116 S. Ct.

2497 (1996); United States v. Bernaugh, 969 F.2d 858, 862-63 (10th Cir. 1992). 

It is true that the "leader," "manager," and "supervisor" prongs of §

3B1.1(c) do suggest an element of control over others. See United States v.

Cordoba, 71 F.3d 1543, 1547 (10th Cir. 1995) ("Enhancement under section

3B1.1(b) [regarding management and supervision] applies to a defendant who

'exercised some degree of control or organizational authority over someone

subordinate to him in the drug distribution scheme.'") (quoting Pelliere, 57 F.3d at

939-40, and United States v. Roberts, 14 F.3d 502, 524 (10th Cir. 1993)). 
- 8 -

However, we do not believe that such a conclusion is required to find that a

defendant was an "organizer" of criminal activity. While a finding that the

defendant controlled or directed underlings or subordinates may be sufficient to

justify an enhancement for organizing under § 3B1.1(c), the presence of

underlings and subordinates is not necessary to support such an enhancement.

The Guidelines list a number of factors courts should consider to determine

whether a defendant played an organizational role, including: 

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.

U.S.S.G. § 3B1.1, comment. (n. 4) (1995). Some of these factors relate to the

control of other participants and other factors address organization. The

Guidelines add, "There can, of course, be more than one person who qualifies as a

leader or organizer of a criminal association or conspiracy." Id. Nothing in the

Guidelines requires that an organizer must exercise some direction or control over

underlings. Indeed, "[t]he Guidelines do not require that each of the factors"

listed in the application notes be satisfied for § 3B1.1 to apply. Bernaugh, 969

F.2d at 863.
- 9 -

Commentary Note 2 to § 3B1.1 allows an upward departure for a defendant

who merely manages or organizes the assets of a criminal organization, even

though the defendant did not organize, lead, manage, or supervise another

participant. See U.S.S.G. § 3B1.1, comment. (n.2) (1995). Such language reveals

an intent to allow an increased sentence under § 3B1.1 even when a defendant did

not control subordinates. We rely on "pertinent policy" statements issued by the

Sentencing Commission in "determining the particular sentence to be imposed"

under the Guidelines. 18 U.S.C. § 3553(a) (1997).

We recognize that this court has on several occasions used dicta suggesting

that the presence of subordinates under the defendant's control was required to

consider a defendant an organizer under § 3B1.1. However, in each of these

cases, either the enhancement could be upheld under the control prongs of

"leader," "manager," or "supervisor," or the enhancement was struck down

because the court found that the defendant neither organized nor controlled

others. None of these cases held that organization of, without control over,

subordinates was insufficient to support an enhancement under § 3B1.1(a) or (c). 

See United States v. Litchfield, 959 F.2d 1514, 1523 (10th Cir. 1992) (finding no

organization or control); United States v. Smith, 951 F.2d 1164, 1170 (10th Cir.

1991) (finding no organization or control); United States v. Reid, 911 F.2d 1456,

1464 (10th Cir. 1990) (stating that § 3B1.1(a) suggests the presence of underlings
- 10 -

or subordinates, but then stating unequivocally that an enhancement can be

predicated on either the organization or control of others and upholding an

enhancement upon finding that the defendant exercised both organization and

control over an extensive criminal enterprise); United States v. Bauer, 995 F.2d

182, 183-84 (10th Cir. 1993) (citing Reid, but upholding enhancement under §

3B1.1(c) because the defendant was both an organizer and a controller).

Other circuits have similarly rejected the view that an organizer must

control or direct subordinates to qualify for an enhancement under § 3B1.1. 

United States v. Grady, 972 F.2d 889 (8th Cir. 1993) (per curiam) (upholding an

enhancement under § 3B1.1(a) and stating, "We define the term 'organizer or

leader' broadly . . . . [The defendant] may be an organizer or leader without

having directly controlled his coconspirators."); see also United States v.

Billingsley, 115 F.3d 458, 465 (7th Cir. 1997) (upholding an enhancement under §

3B1.1(c) and stating, "[T]he overall focus under section 3B1.1 is relative

responsibility within a criminal organization . . . . [E]ven if a defendant did not

exercise control [over subordinates], an enhancement under § 3B1.1 may apply so

long as the criminal activity involves more than one participant and the defendant

played a coordinating or organizing role.") (citations omitted); United States v.

Giraldo, 111 F.3d 21, 24 (5th Cir. 1997) (finding an enhancement under §

3B1.1(c) appropriate where the defendant simply organized other participants by
3

 As support for its holding in Kelley, the D.C. Circuit cites United States v. Hoac,

990 F.2d 1099, 1110-11 (9th Cir. 1993); Litchfield, 959 F.2d at 1522-23; United States v.

Rowley, 975 F.2d 1357, 1364 (8th Cir. 1992); United States v. Belletiere, 971 F.2d 961,

969-70 (3rd Cir. 1992); and United States v. DeCicco, 899 F.2d 1531, 1535 (7th Cir.

1990). However, after reviewing these cases, we find that none of them actually require

control over subordinates or underlings to support an enhancement under § 3B1.1(c).

- 11 -

obtaining the money suppliers and recruiting the accomplices necessary to

complete a large drug transaction, even though the defendant did not control or

direct subordinates), cert. denied, 66 USLW 3282 (Oct. 14, 1997); but see United

States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994) (agreeing in dicta with

cases it read as holding that § 3B1.1(c) applies only to one who exercises control

over criminally responsible subordinates, but affirming an enhancement under §

3B1.1(c) in any event because the defendant did control subordinates).3

Therefore, while control over subordinates is required to find that a

defendant played a management, supervision, or leadership role in a criminal

activity, we conclude that a sentence enhancement under § 3B1.1(c) for a

defendant who acts as an organizer does not require the presence of underlings in

the endeavor. As a result, a defendant may be punished as an organizer under §

3B1.1(c) for devising a criminal scheme, providing the wherewithal to accomplish

the criminal objective, and coordinating and overseeing the implementation of the

conspiracy even though the defendant may not have any hierarchical control over

the other participants. Valdez cannot rely on Neary's equal culpability as a co-
- 12 -

conspirator as a shield against a sentence enhancement for playing an aggravating

role in the offense. 

Under this standard, the record provides sufficient evidence that Valdez

acted as an organizer: he provided the sources Neary was unable to secure to

supply the drugs necessary for the distribution scheme; he directed those suppliers

to deliver particular amounts of drugs at times and places determined by him; and

he decided on the financial arrangements concerning the deliveries. See, e.g.

Bernaugh, 969 F.2d at 864 (affirming a sentence enhancement under 3B1.1(a) for

defendant's role as an organizer or leader where the defendant acted as the

"moneyman" for a drug ring, recruited others to participate in the operation,

provided transportation for participants to drug transactions, engaged in

negotiations concerning the transaction, and had possession of most of the drugs

at some point prior to his arrest); Billingsley, 115 F.3d at 465 (devising scheme,

recruiting accomplices, serving as main participant in offense, and receiving

largest share of benefit of criminal enterprise qualified defendant as an organizer

under § 3B1.1(c)); Giraldo, 111 F.3d at 24 (defendant acted as an organizer under

§ 3B1.1(c) by recruiting accomplices and providing money necessary for a drug

transaction); United States v. Garin, 103 F.3d 687, 690 (8th Cir. 1996) (providing

drug supply for distribution qualified defendant for § 3B1.1 enhancement), cert.

denied, 117 S. Ct. 1323 (1997).
- 13 -

Because evidence in the record supports the district court's finding that

Valdez organized the drug distribution ring, the court did not err in enhancing

Valdez's sentence pursuant to section 3B1.1(c) of the Guidelines. The judgment

of the district court is AFFIRMED.