                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 3 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 99-6010
                                                     (D.C. No. 98-CR-44)
    VICTOR COOPER, a/k/a Joel Mack;                     (W.D. Okla.)
    a/k/a V.J. Simpson,

                Defendant-Appellant.




                            ORDER AND JUDGMENT           *




Before TACHA , KELLY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Defendant-appellant Victor Cooper pleaded guilty to two counts of

submitting false income tax refund claims in violation of 18 U.S.C. § 287 and two

counts of using a false power of attorney in violation of 18 U.S.C. § 495. On

appeal, defendant challenges the district court’s sentencing guidelines

computation of his base offense level, asserting that the sentencing court erred in

(1) denying defendant a three-point reduction of his base offense level for

acceptance of responsibility, and (2) applying a four-point increase for his role as

a leader or organizer in a scheme to defraud the Internal Revenue Service (IRS).

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we

affirm.

       We review “the district court’s legal interpretation of the guidelines de

novo.” United States v. Ensminger , 174 F.3d 1143, 1145 (10th Cir. 1999)

(quotations omitted). We “review the district court’s determination that

[d]efendant was an organizer or leader of a criminal activity . . . for clear error,”

and “give due deference to the district court’s application of the guidelines to the

facts.” United States v. Cruz Camacho , 137 F.3d 1220, 1223-24 (10th Cir. 1998).

We also review the district court’s findings as to acceptance of responsibility

under a clear error standard.   See United States v. Portillo-Valenzuela   , 20 F.3d




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393, 394 (10th Cir. 1994).

      While incarcerated in a state prison, defendant, along with inmates Keith

Orange, Kenneth Burrell, and David Hicks, operated a tax refund scheme whereby

they would file false income tax refund claims using the names, addresses, and

social security numbers of fictitious filers. Following investigation by the IRS,

defendant was identified as a major player in this scheme which resulted in

fraudulently obtained refunds in the amount of $216,219.61, of which

$157,618.43 was directly attributable to defendant. In addition to those involved

within the prison, defendant recruited Doris Burrell, the wife of Kenneth Burrell,

and Laura Banks, alleged common-law wife of Keith Orange, to assist in this

scheme. Ms. Burrell used her home address on a number of the fraudulent tax

returns and notarized false power of attorney forms sent to her by defendant.

Defendant wrote letters to Ms. Burrell giving her specific instructions to contact

Laura Banks when the refund checks arrived and to provide Ms. Banks with a

notarized power of attorney. Ms. Burrell was to receive $1,000 for her assistance

in the scheme. Ms. Banks was recruited to use the fraudulent power of attorney

forms to cash the refund checks. In letters to Ms. Banks, defendant provided her

with specific instructions on to whom, and in what amounts, the money from the

refund checks should be distributed.




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       At his arraignment, defendant pleaded not guilty to all five counts of the

indictment, and trial was set for August 24, 1998. Defendant subsequently filed a

number of pretrial motions, which were all denied by the district court. On

August 21, 1998, three days before trial, defendant entered a guilty plea to four

counts of the indictment, and the government dismissed the remaining conspiracy

count. The district court then sentenced defendant to sixty months’ imprisonment

on the first two counts and sixty-three months’ imprisonment on the last two

counts, to be served concurrently. The court also entered a restitution order in the

amount of $31,244.09.

       First, defendant alleges that the sentencing court erred in granting him only

a two-level downward adjustment for acceptance of responsibility instead of the

three-level adjustment allowed under U.S.S.G. § 3E1.1(b)(2). Defendant

contends that he is entitled to the additional one-level adjustment for timely

notifying the government of his intent to plead guilty.    See Section 3E1.1(b)(2).

       Here, defendant signed a plea agreement on August 18, 1998, and entered

his guilty plea on August 21, 1998, only three days before his August 24, 1998

trial date. According to the sentencing guidelines, guilty pleas must be made in a

timely fashion in order to save the government the necessity of preparing for trial

and to allow the court to better plan its docket.    See § 3E1.1(b)(2). Defendant

asserts that he informed the government early in the proceedings that he would


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enter guilty pleas to all counts except the count of conspiracy, and therefore, the

government was timely informed of his intent to plead guilty. The government

established that it had made extensive trial preparations including flying in three

witnesses to testify against defendant.       See United States v. Hopper , 27 F.3d 378,

385 (9th Cir. 1994) (“In the context of subsection (b)(2), the timeliness of a

defendant’s decision to plead guilty will necessarily depend on the extent of trial

preparation already undertaken prior to the plea and the decision’s proximity in

time to the trial date.”).   Therefore, contrary to defendant’s argument, we agree

with the sentencing court that while defendant’s “early notice” evinces on-going

plea negotiations, defendant did not tender timely notice of his intent to plead

guilty sufficient to relieve the government of trial preparation on all charges.

       “The sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing

judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, comment, n.5.

Therefore, affording deference to the court’s determination that defendant’s guilty

plea only days before trial was not timely,      see e.g., Hopper , 27 F.3d at 385

(affirming court’s denial of additional one-level decrease when defendant pleaded

guilty three weeks prior to trial), we determine that the district court’s denial of

an additional one-level decrease was not clearly erroneous.




                                               -5-
        Next, defendant asserts that the sentencing court erred in increasing his

base offense level by four points for his leadership and organizational roles in the

crime. The guidelines provide that “[i]f the defendant was an organizer or leader

of a criminal activity that involved five or more participants or was otherwise

extensive, increase by 4 levels.” U.S.S.G. 3B1.1(a). “In order for § 3B1.1 to

apply, the defendant must have exercised some degree of control over others

involved in the commission of the offense or he must have been responsible for

organizing others for the purpose of carrying out the crime.”     United States v.

Valdez-Arieta , 127 F.3d 1267, 1271 (10th Cir. 1997) (quotation omitted). The

sentencing guidelines provide certain factors for the court to consider when

determining whether a defendant was a leader or organizer of the criminal

activity. In making this decision, the court considers

        the exercise of decision making authority, the nature of participation
        in the commission of the offense, the recruitment of accomplices, the
        claimed right to a larger 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 control and authority
        exercised over others.

U.S.S.G. § 3B1.1, comment, n.4. The guidelines do not require that each of the

factors be satisfied in order for § 3B1.1 to apply.   See Valdez-Arieta , 127 F.3d at

1271.

        We have stated that the “wording of § 3B1.1(a) is disjunctive,” allowing

the enhancement “if defendant was either a leader or an organizer.”      United States

                                             -6-
v. Tagore , 158 F.3d 1124, 1131 (10th Cir. 1998). In rejecting defendant’s

objection to an enhancement under § 3B1.1(a), the sentencing court found that it

wasn’t necessary to determine if the scheme involved more than five persons

because it was otherwise extensive. The court further found that defendant was

an organizer in that he recruited and directed people on the outside. Defendant’s

presentence report stated that defendant had prepared the majority of the

fraudulent tax forms, often preparing the forms while his cellmate, Burrell, acted

as a lookout. The investigation revealed that defendant obtained the blank power

of attorney forms from the prison library and filled them out to correspond to the

names on the tax forms. The court concluded that these facts, largely unrebutted,

supported a finding that defendant held a role as leader and organizer in the

scheme. We agree. Accordingly, we determine that the record in this case amply

supports the district court’s determination that defendant held a position as a

leader and

organizer in this scheme to defraud the IRS. Therefore, the district court’s four-

point enhancement of defendant’s base offense level under § 3B1.1(a) was not

clear error.




                                         -7-
      Defendant’s motion to file a supplemental brief is granted. The judgment

of the United States District Court for the Western District of Oklahoma is

AFFIRMED.



                                                   Entered for the Court



                                                   Deanell Reece Tacha
                                                   Circuit Judge




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