* This order and judgment is not binding precedent, e xcept under the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

### JUL 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. GARRY WAYNE HAYS,

Defendant-Appellant. No. 97-6048 (W. District of Oklahoma) (D.C. No. 96-CR-109)

ORDER AND JUDGMENT *

Before SEYMOUR , PORFILIO , and MURPHY , 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. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. Appellant Garry Wayne Hays pleaded guilty in the Un ited States District Court for the Western District of Oklahoma to trans portation of stolen vehicles in-2-

interstate commerce in violation of 18 U.S.C. §§ 2, 2312. Hays was sentenced to 35 months imprisonment and three-years of supervise d release, and was assessed a $ 3,000.00 punitive fine and a $ 7,030.80 fine to cover the costs of supervision. Hays’ sentence included an enhancement under § 3B1. 1(c) of the United States Sentencing Guidelines pursuant to the district court’s finding that Hays exercised a leadership role in the crimes. Hays presents two issues for appeal: (1) whether th e district court erred by concluding Hays exercised a leadership role in the crimes and by enhancing his guideline sentence two levels accordingly; and (2) whether the district court erred by imposing a fine to cover the costs of supervisio n, in light of Hays’ financial circumstances. This court exercises jurisdiction p ursuant to 28 U.S.C. § 1291 and
affirms

.

I. FACTUAL BACKGROUND During the summer of 1995, Hays was involved in the transportation of a stolen John Deere tractor from Oklahoma to Kansas. Hays was arrested and, when in custody, cooperated with the Federal Bureauof Investigations (“FBI”) by identifying other individuals who were involved with him in the theft and sale of numerous pieces farm equipment, including a man nam ed Russell Cormack. Cormack was subsequently arrested and indicated that he had assisted Hays by-3-

driving him to various locations, and that he recei ved gas money and $ 173.00 from Hays for this assistance. Hays made approximately $ 10,000 from the thefts. The FBI special agent who investigated the farm equ ipment thefts indicated that Hays was accompanied by only one of his associates in each theft. Hays would pick up and drive the farm equipment to the sale lo cation in Kansas, and the associate would follow Hays in an automobile, or vi ce versa. The purchasers of the stolen equipment indicated that they dealt with Hays and did not know any of Hays’ associates. On one occasion, when Cormack we nt with Hays to a bar where Hays was going to negotiate a sale, Cormack was tol d to stay in the car.

II. LEADERSHIP ROLE ENHANCEMENT Section 3B1.1 provides, Based on the defendant’s role in the offense, incre ase 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 othe rwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (b ut not an organizer or leader) and the criminal activity invo lved five or more participants or was otherwise extensive, increase b y 3 levels. (c) If the defendant was an organizer, leader, mana ger, or supervisor in any criminal activity other than described in (a ) or (b), increase by 2 levels.-4-

Enhancement under subsection (c) is appropriate “up on a showing that the defendant exercised any degree of direction or cont rol over someone subordinate to him in the distribution scheme.” United States v. Backas , 901 F.2d 1528, 1529 (10th Cir. 1990). This court has clarified further , Among the factors which a court may consider are th e defendant’s exercise of decision making authority, the nature o f participation in the commission of the offense, the recruitment of a ccomplices, the claimed right to a large 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 con trol and authority exercised over others. United States v. Hanif

, 1 F.3d 998, 1004 (10th Cir. 1993). As justification for the two-level enhancement of H ays’ sentence pursuant to subsection (c), the district court stated,

I find that [Hays] did, in fact, exercise leadershi p in this organization and had the organizational authority i n this case. He did all of the negotiation of the various sales. He ra n the organization. He identified, at least to one, Russell Cormack, th e property to be stolen. I find that the various individuals . . . all assis ted Mr. Hays. I further find that [Hays] received the lion’s share of the profit from this organization, that amount being some $ 10,000, while at least one other participant in that organization, Russell Cormack, received very minimal or nominal amounts. Tr. at 17-18. Hays does not challenge the districtcourt’s factual findings, but argues that they do not support the district court’ s conclusion that he exercised a supervisory role among the various participants in the criminal activity. The-5-

conclusion that a defendant exercised a supervisoryrole in the criminal activity is reviewed de novo

. United States v. Albers , 93 F.3d 1469, 1487 (10th Cir. 1996). We agree with the district court’s assessment of Hays’ leadership role based upon the undisputed factual findings. The cr iminal activity involved several individuals, yet Hays exclusively conductedthe negotiation with buyers. Hays kept most of the proceeds and paid only a mini mal amount in exchange for his assistant’s services. The appellee further poi nts out the following evidence adduced in the sentencing hearing: Hays told the FB I that the other individuals assisted him; Hays participated in each theft and w as accompanied by only one other individuals each time, while none of the othe r individuals ever committed a theft without Hays; Cormack was told by Hays what t o do and where to go. Based upon these factual circumstances, we conclude that the district court correctly determined Hays played a leadership role under § 3B1.1(c). The twolevel enhancement was appropriate.

III. FINE TO COVER THE COSTS OF SUPERVISION Section § 5E1.2(I) of the Sentencing Guidelines pro vides, “[S]ubject to the provisions of subsection (f) herein, the court shal l impose [a] . . . fine that is at least sufficient to pay the costs to the governmentof any . . . supervised release ordered.” Subsection (f) reads,-6-

If the defendant establishes that (1) he is not abl e and, even with the use of a reasonable installment schedule, is not li kely to become able to pay all or part of the fine required by the prec eding provisions, or (2) imposition of a fine would unduly burden the de fendant’s dependents, the court may impose a lesser fine or w aive the fine. Subsection (f) places the burden upon the defendantof establishing that he or she is unable to pay a fine. See United States v. Klein , 93 F.3d 698, 705 (10th Cir. 1996). Hays failed to establish his inability to p ay the punitive fine. We review the court's imposition of a fine under an abuse of discretion standard. See United States v. Meuli , 8 F.3d 1481, 1487 (10th Cir. 1993). While the Presentencing Report reveals that Hays has no a ssets, owes child support, and has outstanding debts to a former spouse and the fe deral government, it also reveals that he has earned over $ 30,000 per year o n at least one occasion and has the ability to work after his release from prison. When reviewing for an abuse of discretion, this court will not disturb a trial cou rt’s decision unless we have a definite and firm conviction that the court committ ed a clear error of judgment. Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994). Given this standard and Hays’ proven ability to earn a significant income, this court determines that the imposition of the $ 7,030.80 fine was not an abuse of discretion.-7-

Therefore, the judgment of the United States Distri ct Court for the Western District of Oklahoma is AFFIRMED

. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge