* This order and judgment is not binding precedent except under the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

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Ronald Armstead Alexander appeals his sentence impo sed 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 vi olation 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") recomme nded a guideline sentencing range between twenty-four and thirty months imprisonment for his conviction. The recommended sentence included a tw o-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. Ale xander objected to the PSR's recommendation, claiming he was not an organizer, l eader, manager, or supervisor under § 3B1.1(c). He also moved for a d ownward departure from the guideline sentence for his role as sole caretaker o f his teenage daughter. The district court rejected both claims and sentenced M r. Alexander to twenty-four months imprisonment.
On appeal, Mr. Alexander first contends the distric t 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 revie w 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 o f participation in the commission of the offense, ... the degree of partic ipation 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 need s 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 wil l satisfy the definition of "supervision." United States v. Moore , 919 F.2d 1471, 1477 (10th Cir. 1990). A defendant may still be punished unde r § 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 t he conspiracy." United States v. Valdez-Arieta , 127 F.3d 1267, 1272 (10th Cir. 1997).
The facts support the district court's supervisor e nhancement. 1 For instance, Mr. Dobson identified Mr. Alexander as hi s source. Mr. Alexander2In 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 gotyou 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. D rug 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 und er § 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 e nhancement where defendant supplied sources of drugs to co-def endant); see also Bernaugh , 969 F.2d at 862-63 (upholding § 3B1.1(a) enhancement where defendant provided transportation for participants in drug ring, and h ad possession of most of the drugs some time prior to his arrest).

Mr. Alexander also contends the district court erre d in denying his motion for a downward departure. We cannot review a distr ict court's refusal to depart-5-

downward unless it unambiguously appears from the r ecord the sentencing court believed the Guidelines did not permit a downward d eparture. 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 re veals the district court's awareness of its discretion to depart, we lack juri sdiction to review this claim.

Mr. Alexander's final claim is his case should be d ismissed because his criminal judgment dismissed Count Three, the charge to which he pled guilty. In his plea agreement, the government agreed to move t o dismiss Counts One and Two in return for Mr. Alexander's guilty plea to Co unt Three. At his plea hearing, the court confirmed Mr. Alexander's guiltyplea to Count Three. Then at sentencing, the court sentenced Mr. Alexander on Co unt Three. After the sentence was imposed, the government moved for dism issal of Counts One and Two. The court's final judgment stated Mr. Alexand er was convicted of Count Three, but erroneously dismissed Counts One and Thr ee. However, on the government's motion, the district court issued an A mended Judgment, correcting the previous one by showing Counts One and Two dism issed.
The court may correct its judgment for a clerical e rror at any time under Fed. R. Crim. P. 36. Thus, Mr. Alexander's claim i s now moot. Furthermore, it is-6-

a well-established rule of criminal law that an "'o rally 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 dismis s Mr. Alexander's claim, and affirm his sentence for Count Three.

AFFIRMED
. Entered for the Court
WADE BRORBY United States Circuit Judge