* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARY LOU TAYLOR, Defendant - Appellant. No. 99-6173 (D.C. No. CR-97-153-M) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before TACHA, McKAY and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of2

this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. Defendant Taylor pleaded guilty to one count of fraudulently using another's credit card in violation of 18 U.S.C. § 1 029(a)(5). On direct appeal, we affirmed the district court’s upward departure from the guidelines, but vacated the sentence based on the court’s failure to comply with Fed. R. Crim. P. 32(c) when making its determination that U.S.S.G. § 3B1.1 (b) applied, and remanded for resentencing. United States v. Taylor , No. 98-6125, 1999 WL 17733 (10th Cir. Jan. 19, 1999) (unpublished). On remand, the district court again applied § 3B1.1(b). In this appeal, which arises from her resentencing, Defendant challenges the increase in her offense level computation by th ree points under U.S.S.G. § 3B1.1(b). She asserts the evidence was insufficien t to support a finding that she played a managerial or supervisory role. While acknowledging she obtained the credit card numbers from her place of employment, s he states she was “simply a source of information” for the other individuals in the credit card scheme who she claims operated independently. We review a dis trict court's legal determinations de novo and uphold its factual findi ngs unless clearly erroneous. See United States v. Valdez-Arieta, 127 F.3d 1267, 1270 (10th Cir. 1997). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S .C. § 3742.3

The sentencing guidelines provide for a three level increase in a base offense level "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity invo lved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(b). The terms "manager" and "supervisor" apply to defendants who "exercised som e degree of control over others involved in the commission of the offense" o f conviction, or were "responsible for organizing others for the purpose of carrying out the crime." United States v. Roberts , 14 F.3d 502, 523 (10th Cir. 1993). The guidelines set forth certain factors for the di strict court to consider when determining whether a defendant’s role in the offense qualifies for an adjustment under § 3B1.1: [T]he 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 o rganizing the offense, the nature and scope of the illegal activi ty, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1 comment. (n. 4). There is no requ irement that each of these factors be satisfied before § 3B1.1 applies. See Valdez-Arieta, 127 F.3d at 1271. During the resentencing hearing in April 1999, Phil lip Smith, a special agent with the United States Secret Service, testif ied concerning the Defendant’s participation in the direction of the credit card s cheme, including her degree of control and her participation in organizing the cri minal activity. Rec., Vol. 2,4

Transcript at 8-27. In ruling that § 3B1.1(b) appl ied, the district court stated: The Court, having heard the testimony of agent Phil lip Smith find[s] that the adjustment for this Defendant’s role in th e offense, again, warrants her role as a supervisor or manager. She orchestrated these fraudulent transactions, she provided the fraudulen t credit card numbers that she obtained wrongfully from her place of employment. She furnished these credit card numbers to these in dividuals, as was testified to by Agent Smith, and she actually accompanied these various individuals to the location where they mad e their fraudulent purchases. She made the contact for them at the st ore; Latina Maltby [sales person], in particular, telling them who to contact, what to do, how [ ] to get the furniture. She was most essenti al. As testified to by Agent Smith, her participation was extensive andshe in fact was essential to the fraudulent scheme being carried ou t. Transcript at 29-30. The district court did not err in increasing Defendant’s offense level under § 3B1.1 (b).
AFFIRMED.

ENTERED FOR THE COURT
Monroe G. McKay Circuit Judge