*

 This order and judgment is not binding precedent except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 10 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD ARMSTEAD ALEXANDER,

Defendant-Appellant.

No. 97-2055

(D.C. No. 96-CR-31-BB)

(D. N.M.)

ORDER AND JUDGMENT*

Before SEYMOUR, BRORBY, 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. The case is therefore

ordered submitted without oral argument.

Ronald Armstead Alexander appeals his sentence imposed following his
-2-

guilty plea to charges of possession with intent to distribute marijuana pursuant to

21 U.S.C. § 841(a)(1) and aiding and abetting in violation of 18 U.S.C. § 2. We

exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.

Mr. Alexander's pre-sentence report ("PSR") recommended a guideline

sentencing range between twenty-four and thirty months imprisonment for his

conviction. The recommended sentence included a two-level enhancement under

United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1(c) for his role as an

organizer, leader, manager, or supervisor. Mr. Alexander objected to the PSR's

recommendation, claiming he was not an organizer, leader, manager, or

supervisor under § 3B1.1(c). He also moved for a downward departure from the

guideline sentence for his role as sole caretaker of his teenage daughter. The

district court rejected both claims and sentenced Mr. Alexander to twenty-four

months imprisonment.

On appeal, Mr. Alexander first contends the district court erred in

concluding he was a leader or organizer pursuant to U.S.S.G. § 3B1.1(c) because

he was no more culpable than his co-defendant, Mr. Dobson. For sentencing

decisions pursuant to U.S.S.G. § 3B1.1(c), we review the district court's factual

findings for clear error and its legal conclusions de novo. United States v. Baez-
1

 Factors indicating a leadership or organizational role include "the

exercise of decision making authority, the nature of participation in the

commission of the offense, ... 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).

-3-

Acuna, 54 F.3d 634, 638 (10th Cir. 1995). Under U.S.S.G. § 3.B1.1(c), a

sentencing court may increase a base offense by two levels if the defendant was

an "organizer, leader, manager, or supervisor in any criminal activity." We have

ruled that "[i]n order to be a supervisor, one needs merely to give some form of

direction or supervision to someone subordinate in the criminal activity for which

the sentence is given." United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.),

cert denied, 498 U.S. 870 (1990). Any degree of direction will satisfy the

definition of "supervision." United States v. Moore, 919 F.2d 1471, 1477 (10th

Cir. 1990). A defendant may still be punished under § 3B1.1(c), without

supervisory control over others, as an "organizer" for "devising a criminal

scheme, providing the wherewithal to accomplish the criminal objective, and

coordinating and overseeing the implementation of the conspiracy." United States

v. Valdez-Arieta, 127 F.3d 1267, 1272 (10th Cir. 1997).

The facts support the district court's supervisor enhancement.1 For

instance, Mr. Dobson identified Mr. Alexander as his source. Mr. Alexander
2

 In making its finding, the district court can use any reliable evidence,

including hearsay. United States v. Bernaugh, 969 F.2d 858, 863 (10th Cir.

1992).

-4-

corroborated this fact by telling Mr. Dobson "I got you covered quite a bit" in

reference to marijuana. A courier whose arrest led to this investigation identified

Mr. Dobson's source as a man named Ron from Bisbee who recently moved to

Santa Fe, just as Mr. Ronald Alexander had done. A "load vehicle" was seen at

Mr. Alexander's house shortly before his arrest. Drug packaging materials and

approximately eighty-five pounds of marijuana were seized from Mr. Alexander's

residence at the time of his arrest. The district court concluded these facts

suggest Mr. Alexander was a leader or organizer under § 3B1.1(c) in his position

as a "supplier and a warehouse."2 Based on our review, we find no error. See

Valdez-Arieta, 127 F.3d at 1272 (affirming § 3B1.1(c) sentence enhancement

where defendant supplied sources of drugs to co-defendant); see also Bernaugh,

969 F.2d at 862-63 (upholding § 3B1.1(a) enhancement where defendant provided

transportation for participants in drug ring, and had possession of most of the

drugs some time prior to his arrest).

Mr. Alexander also contends the district court erred in denying his motion

for a downward departure. We cannot review a district court's refusal to depart
-5-

downward unless it unambiguously appears from the record the sentencing court

believed the Guidelines did not permit a downward departure. United States v.

Segien, 114 F.3d 1014, 1024 (10th Cir.), cert. denied, ___ S. Ct. ___, 1998 WL

125239 (U.S. Mar. 23, 1998). Because the record reveals the district court's

awareness of its discretion to depart, we lack jurisdiction to review this claim.

Mr. Alexander's final claim is his case should be dismissed because his

criminal judgment dismissed Count Three, the charge to which he pled guilty. In

his plea agreement, the government agreed to move to dismiss Counts One and

Two in return for Mr. Alexander's guilty plea to Count Three. At his plea

hearing, the court confirmed Mr. Alexander's guilty plea to Count Three. Then at

sentencing, the court sentenced Mr. Alexander on Count Three. After the

sentence was imposed, the government moved for dismissal of Counts One and

Two. The court's final judgment stated Mr. Alexander was convicted of Count

Three, but erroneously dismissed Counts One and Three. However, on the

government's motion, the district court issued an Amended Judgment, correcting

the previous one by showing Counts One and Two dismissed.

The court may correct its judgment for a clerical error at any time under

Fed. R. Crim. P. 36. Thus, Mr. Alexander's claim is now moot. Furthermore, it is
-6-

a well-established rule of criminal law that an "'orally pronounced sentence

controls over a judgment and commitment order when the two conflict.'" United

States v. Sasser, 974 F.2d 1544, 1562 (10th Cir. 1992) (quoting United States v.

Villano, 816 F.2d 1448, 1450 (10th Cir. 1987) (en banc)), cert denied, 506 U.S.

1085 (1993). The court orally pronounced Mr. Alexander's sentence for his

conviction on Count Three. Consequently, we dismiss Mr. Alexander's claim, and

affirm his sentence for Count Three.

AFFIRMED.

Entered for the Court

WADE BRORBY

United States Circuit Judge