* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould 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. 

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

### JUL 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. KIMBERLY GIBSON, Defendant - Appellant. No. 97-8074 (D.C. No. 97-CR-27-4) (D. Wyo.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **
Defendant-appellant Kimberly Gibson pleaded guilty to one count of conspiracy to commit bank robbery, see 18 U.S.C. §§ 371 & 2113, and was sentenced to thirty-seven months imprisonment to be followed by three years of supervised release. In calculating her sentence, t he district court enhanced Ms. Gibson’s base offense level by two levels pursuant to USSG § 1B1.2(d) to adjust- 2 -

for her participation in two of the four bank robbe ries which were the objects of the conspiracy. The district court refused to gran t Ms. Gibson’s request for downward adjustment as a minor or minimal participant pursuant to USSG § 3B1.2. Ms. Gibson appeals these determinations. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm. Ms. Gibson argues that the application of USSG §1B1 .2(d), which allows the court to consider the number of offenses which a defendant conspires to commit for purposes of sentencing, violates the Ind ictment Clause of the Fifth Amendment because it allows her to be punished as i f she had been convicted of two separate conspiracies. Ms. Gibson pled guilty to the conspiracy charge, and the indictment specified the two bank robberies she admitted she participated in as overt acts. See I R. doc. 28 at 4-6; II R. at 35-40; United States v. Allen , 24 F.3d 1180, 1183 (10th Cir.), cert. denied , 513 U.S. 992 (1994) (explaining that guilty plea constitutes admission of acts describedin indictment). The question of waiver aside, an indictment “need not set forth factors relevant only to the sentencing of an offender found guilty of [a] charg ed crime.” Almendarez-Torres v. United States , 118 S. Ct. 1219, 1223 (1998). We thus reject Ms. Gibson’s Indictment Clause argument. Ms. Gibson also argues that in its application of U SSG § 1B1.2(d), the district court erroneously found that she participated in two separate conspiracies.- 3 -

Ms. Gibson’s argument, however, confuses the two ob jects of the conspiracy with the conspiracy itself. Ms. Gibson admitted that sh e participated in both the Powell and Worland bank robberies, which supports the district court’s finding that Ms. Gibson conspired to commit these objects o f the conspiracy for purposes of USSG § 1B1.2(d). Ms. Gibson’s § 1B1.2(d) argum ent is accordingly unavailing. Ms. Gibson finally argues that the district court’s denial of a downward adjustment for minimal or minor participation pursu ant to USSG § 3B1.2 was error. She asserts that the district court imprope rly considered her role in each overt act separately for purposes of assessing her involvement in the conspiracy pursuant to USSG § 3B1.2. The record belies this a ssertion, as the district court considered all the evidence before it relating to M s. Gibson’s participation in the conspiracy. See III R. at 24-25. Moreover, the district court may , but need not, make a specific comparison of the defendant’s role in the conspiracy to that of her co-conspirators. See United States v. Caruth , 930 F.2d 811, 815 (10th Cir. 1991). In any event, the district court’s determination th at Ms. Gibson was more than a minor or minimal participant was not clearly errone ous. See United States v. McCann , 940 F.2d 1352, 1359 (10th Cir. 1991). Ms. Gibsonadmitted driving the getaway vehicle for the robbery in Worland. See II R. at 35-37. She knew about and was present during the Powell robbery; in fact, her need for travel money was- 4 -

a partial motivation for the robbery. See III R. at 17-18. Finally, she admitted she profited either directly or indirectly from the proceeds of three of the robberies. See II R. at 39-40. The district court’s determinatio n of this issue is fully supported by the record. AFFIRMED. Ms. Gibson’s Motion [to Set] Oral Argume nt or in the Alternative for a Decision on the Merits filed June 26, 1998 is deemed moot.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge