*

 This order and judgment is not binding precedent, except under the doctrines of

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

UNITED STATES COURT OF APPEALS

Filed 9/19/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

AARON D. HABBEN,

Defendant-Appellant.

No. 96-5019

(D.C. No. CR-95-127-H)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

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. Therefore, the case is ordered

submitted without oral argument.

Defendant Aaron Habben challenges a two-point offense level adjustment,

pursuant to U.S.S.G. § 3B1.1(c), for his supervisory role in the January 1995 burglary of
2

Provident Federal Savings Bank in Waverly, Nebraska. We affirm.

Habben received a 41-month sentence following his guilty pleas to, among other

crimes, bank burglary, 18 U.S.C. § 2113(a), and receipt of stolen securities, 18 U.S.C. §

2315. The probation office increased Habben's offense level by two points for his

supervisory role in the burglary. In response to Habben's objection to this adjustment, the

court conducted an evidentiary hearing and the government presented the affidavit of

John Kevin Griffith, Habben's accomplice, and a detailed FBI report of an interview

conducted with Griffith. Habben does not dispute that both were sufficient to support the

adjustment. The government also presented the testimony of a witness who claimed

Habben was the more likely leader. Habben's testimony at the hearing contradicted

Griffith's statements that tended to show Habben's supervisory role.

Habben contends the evidence admitted to establish his supervisory role is hearsay,

lacking any indicia of reliability. His argument is in the nature of a challenge to the

sufficiency of the evidence. We review the district court's determination for clear error. 

See United States v. Backas, 901 F. 2d 1528, 1529 (1990). The government has the

burden of proving a particular sentencing enhancement is warranted by a preponderance

of the evidence. See, e.g., United States v. Moore, 55 F.3d 1500, 1501 (10th Cir. 1995). 

The district court may rely on hearsay to determine if this standard has been met if the

evidence bears minimal indicia of reliability. Id.

Habben argues Griffith's affidavit lacks sufficient indicia of reliability because it

was not notarized. Habben's counsel told the sentencing court he had no objection to the

affidavit. This issue is raised for the first time on appeal and is not properly preserved. 

See, e.g., United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994), cert. denied 115 S.
3

Ct. 1117 (1995). In any case, although not notarized, the affidavit was sworn and

witnessed by Griffith's supervising probation officer. It bore sufficient indicia of

reliability to be considered by the district court. In addition, the affidavit is consistent

with the FBI report, further supporting its reliability. We have held in sentencing

proceedings, "the trial court may properly consider uncorroborated hearsay evidence that

the defendant has had an opportunity to rebut or explain." United States v. Shepherd, 739

F.2d 510, 515 (10th Cir. 1984). Habben had such an opportunity and availed himself of

it.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge