                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        NOV 25 1997
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                    No. 96-6290

VERNOIL CANTLEY, aka Joe Joe
Cantley,

             Defendant-Appellant.




                  Appeal from the United States District Court
                     for the Western District of Oklahoma
                            (D.C. No. CR-95-169-A)


Joseph L. Wells, Oklahoma City, Oklahoma, for Appellant.

Leslie M. Maye, Assistant United States Attorney (Patrick M. Ryan, United States
Attorney, with her on the brief), United States Attorney’s Office, Oklahoma City,
Oklahoma, for Appellee.


Before SEYMOUR, Chief Judge, McKAY and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
      Appellant Vernoil Cantley was convicted of conspiracy to distribute

cocaine base (“crack”), in violation of 21 U.S.C. § 846; use of a wire transfer to

facilitate possession with intent to distribute cocaine base, in violation of 21

U.S.C. § 843(b); being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1); five counts of possession with intent to distribute cocaine

base, in violation of 21 U.S.C. § 841(a)(1); and six counts of distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1).

      The Presentence Investigation Report (“PSR”) calculated Cantley’s base

offense level at 38, premised on approximately seven kilograms of cocaine base

and 174 grams of marijuana. The PSR recommended the district court apply a

two-level enhancement for possession of a firearm pursuant to U.S.S.G. §

2D1.1(b)(1) and a four-level enhancement for Cantley’s leadership role in the

conspiracy pursuant to U.S.S.G. § 3B1.1(a). Based on a total offense level of 44,

the district court sentenced Cantley to life imprisonment and five years supervised

release on the conspiracy count and each of the possession and distribution

counts; to imprisonment for a term of forty-eight months and one year supervised

release on the use of a wire transfer to facilitate possession count; and to

imprisonment for a term of 120 months and three years supervised release on the

felon in possession of a firearm count, all to be served concurrently.




                                          -2-
      On appeal, Cantley contends the district court erred by (1) denying his

motion to suppress certain evidence; (2) sentencing him under the crack cocaine

guideline; (3) applying a four-level enhancement for his role as an organizer or

leader; and (4) failing to require the government to assume the burden of proof on

contested sentencing issues. This court affirms.

      A. Motion to Suppress

      Cantley argues the district court erred by denying his motion to suppress

evidence seized during searches of his residence and the hotel room in which he

was arrested.

      At the suppression hearing, Cantley’s parole officer, Arnold Nelson,

testified as to the events surrounding the search of Cantley’s residence. While on

parole 1 in March 1992, Cantley tested positive for marijuana use, but parole

revocation proceedings were not initiated at that time. On July 26, 1993, Officer

Nelson received a telephone call from a DEA agent, who advised him that Cantley

was under investigation by both the DEA and Oklahoma Bureau of Narcotics

(“OBN”) for drug trafficking. That same day, Officer Nelson left messages with

two OBN agents to get additional information about the investigation, but they

never returned his call.




      1
          Cantley was convicted of armed robbery in 1985 and was paroled in 1991.

                                         -3-
      On August 11, 1993, Officer Nelson received an anonymous telephone call

informing him that Cantley was in court that day on a firearms possession charge.

He later verified this information with the clerk’s office and district attorney’s

office. Officer Nelson immediately began preparing a parole violation report

based on Cantley’s arrest for the firearm charge, failure to report the arrest, 2 and

possession of marijuana based on the March 1992 positive drug test. On August

16, Officer Nelson submitted the violation report to the Department of

Corrections Executive Revocation Officer, and on August 25, an arrest warrant

was issued.

      The day Officer Nelson received the arrest warrant, August 30, he

contacted OBN to let them know he was going to execute the warrant. OBN

asked Officer Nelson to “sit on it for a while” because they were afraid Cantley

would make bond and flee. Officer Nelson then asked OBN to update him on

their investigation. Based on the new information he received, Officer Nelson

requested and received authorization from his district supervisor to conduct a

warrantless search of Cantley’s residence.




      In violation of his parole agreement, Cantley failed to inform Officer
      2

Nelson that he was arrested on the firearms charge.

                                          -4-
      The next day, August 31, Officer Nelson, along with two OBN agents 3 and

four Corrections officers, went to Cantley’s residence to conduct the warrantless

search. Sharon Cantley, defendant’s wife, answered the door, let the officers in,

and told them Cantley was not home. The officers requested Ms. Cantley’s

permission to search the entire residence. When she refused, they went forward

with the warrantless search. After the officers confirmed that Cantley was not

present, they searched his bedroom and the common areas of the residence. 4

Among other things, the officers found crack cocaine, digital scales which tested

positive for cocaine, and a loaded pistol.

      The district court determined that in light of the information known to

Officer Nelson, there was a reasonable basis for searching Cantley’s residence.

Additionally, the district court concluded that each of the requirements for

conducting a warrantless search were satisfied. The district court therefore

denied Cantley’s motion to suppress.

      “On appeal from a denial of a motion to suppress, we view the evidence in

a light most favorable to the government and accept the district court’s findings

of historical fact unless clearly erroneous.” United States v. Lewis, 71 F.3d 358,


      Officer Nelson testified that it was the department’s policy to have agents
      3

from another law enforcement agency present as backup.
      4
       In April 1993, Officer Nelson had conducted a “residence verification” of
Cantley’s home. During this interview, Cantley explained which bedroom he
shared with his wife and which bedrooms belonged to others in the household.

                                         -5-
360 (10th Cir. 1995); see also United States v. McCarty, 82 F.3d 943, 947 (10th

Cir.), cert. denied, 117 S. Ct. 257 (1996). “The reasonableness of a search and

seizure under the Fourth Amendment is a question of law we review de novo.”

McCarty, 82 F.3d at 947; see also Lewis, 71 F.3d at 360.

      The Fourth Amendment protects against unreasonable searches and

seizures. See U.S. Const. amend. IV. “Generally, law enforcement officials

should conduct searches pursuant to a warrant supported by probable cause.”

Lewis, 71 F.3d at 361. The Supreme Court, however, has recognized exceptions

to the warrant requirement for certain “special needs” of law enforcement,

including a state’s parole system. See Griffin v. Wisconsin, 483 U.S. 868, 873-75

(1987); see also Lewis, 71 F.3d at 361. Accordingly, a warrantless search of a

parolee’s residence “will satisfy the Fourth Amendment’s reasonableness

requirement to the extent parole agents [carry] it out pursuant to state law which

itself satisfies the Fourth Amendment’s reasonableness requirement.” Lewis, 71

F.3d at 361.

      According to the Oklahoma Probation and Parole Manual (“Manual”) in

effect as of the date Cantley’s residence was searched, a parole officer was

allowed to conduct a warrantless search if four requirements were met and the

district supervisor approved the search. See Probation and Parole Manual ch. 3,

at 4 (Dec. 1, 1992). The four requirements were:


                                         -6-
      (a) There are reasonable grounds to believe that the offender is
      keeping contraband on the property. (b) Failure to search may result
      in an immediate threat to the public, employees, or offenders. (c) The
      search is not the result of an assistance request from other law
      enforcement officers who have been unable to obtain a search
      warrant. (d) Officers are not authorized to break and enter at an
      offender’s residence . . . to conduct a warrantless search.

Id. The Manual also provided that “[s]earches [shall] not invade the privacy of a

third party.” Id.

      In State ex rel.Corgan v. King, 868 P.2d 743 (Okla. Crim. App. 1994), the

Oklahoma Court of Criminal Appeals considered for the first time what

constitutes a “reasonable” warrantless search of a parolee’s residence and

concluded that a search which complies with the Manual 5 is reasonable for Fourth

Amendment purposes. See id. at 746. We agree that the prerequisites to a

warrantless search of a parolee’s residence in Oklahoma comply with the

reasonableness requirement of the Fourth Amendment. See Griffin, 483 U.S. at

870-71, 880 (holding Wisconsin Supreme Court’s interpretation of regulation

requiring “reasonable grounds” for warrantless search of probationer’s residence


      5
        The Manual requirements in effect at the time of the Corgan decision were
identical to the Manual requirements in effect for purposes of this case, except
that in Corgan, the Manual included a fifth requirement: that “the supervising
officer’s experience with the offender has documented a need for close
supervision.” Corgan, 868 P.2d at 746. The district court did not make any
findings with respect to this requirement. Because we conclude that even in the
absence of this additional requirement, the Manual requirements are reasonable
for Fourth Amendment purposes, we do not address Cantley’s argument that this
requirement was not met.

                                        -7-
satisfies Fourth Amendment reasonableness requirement); Lewis, 71 F.3d at 362

(concluding Utah prerequisites to warrantless search of a parolee’s residence

satisfies Fourth Amendment reasonableness requirement).

      We must next determine whether the officers in this case carried out the

search of Cantley’s residence in accordance with the Manual. Cantley argues the

search did not comply with the Manual because (1) there was no immediate threat;

(2) the search was the result of a request from other law enforcement officers; and

(3) the officers invaded the privacy of Ms. Cantley. This court concludes the

Manual requirements were satisfied.

      First, although Cantley apparently concedes there was an immediate threat

to the public, employees, or offenders prior to conducting the search, Cantley

argues the threat subsided once the officers determined he was not present at the

residence. In Corgan, the court determined there was no immediate threat given

that the “search was not conducted until almost a month after it was requested and

authorized, and more notably, not until after [the defendant] was arrested [at his

residence prior to conducting the search]. An ‘immediate’ threat would have

required swifter action.” Corgan, 868 P.2d at 747.

      In this case, Officer Nelson conducted the search the day after receiving

authorization, and, unlike the defendant in Corgan, Cantley was not arrested until

approximately two weeks after the search. Given the evidence of Cantley’s drug


                                         -8-
dealings, his recent charge for illegal possession of a firearm, and the fact that he

was not yet in custody, we agree with the district court’s conclusion that failure to

search may have resulted in an immediate threat to both the public and the law

enforcement officers.

      Second, Cantley argues that Officer Nelson was acting at the behest of law

enforcement officers, namely OBN and DEA agents, who could not themselves

obtain a search warrant. In Corgan, the court held that parole officers may not

use their authority “to assist the police in evading Fourth Amendment warrant

requirements.” Id. Approximately six months prior to the date of the warrantless

search and while on parole, the defendant in Corgan pleaded guilty to driving

under the influence and possession charges. See id. at 744-45 & 745 n.2. The

court noted these convictions “were sufficient to cause revocation” of the

defendant’s parole 6 and therefore concluded “[t]he [warrantless] search was not

conducted for a parole purpose, as [the parole officer] did not need to search for

additional evidence to justify revocation of [the defendant’s] parole.” Id. at 747.

The court thus held the search was not conducted in compliance with the Manual.

See id.

      In this case, however, Cantley had only been charged with illegal


      6
       In Oklahoma, the State may rely on a conviction as a basis for parole
revocation if the judgment is final. See Pickens v. State, 779 P.2d 596, 598
(Okla. Crim. App. 1989).

                                          -9-
possession of a firearm and had not yet been convicted of the offense. At a parole

revocation hearing, Oklahoma law requires the State to prove “by a

preponderance of the evidence that the terms of the accused’s suspension [have]

been violated.” Fleming v. State, 760 P.2d 206, 207 (Okla. Crim. App. 1988); see

also Robinson v. State, 809 P.2d 1320, 1322 (Okla. Crim. App. 1991). Because

Cantley had not been convicted of the firearms charge, the State had to put forth

other evidence to prove that Cantley had violated the terms of his parole in order

to prevail at the revocation hearing. 7 Accordingly, there was a parole purpose for

the search. Finally, although Cantley claims there was “subterfuge” among the

parole officer and the OBN and DEA agents, he does not present any concrete

evidence to support his claim but rather relies on innuendo and speculation. This

court therefore agrees with the district court that the warrantless search of

Cantley’s residence was not the result of a request for assistance from other law

enforcement officers who were unable to obtain their own search warrant.

      Third, Cantley argues the officers invaded the privacy of Ms. Cantley

without her consent when conducting the warrantless search. According to the



      7
        The violation report did include two other bases for revoking Cantley’s
parole, marijuana use (almost a year-and-a-half earlier) and misrepresenting the
truth. Because, however, the decision to revoke parole lies within the discretion
of the trial court, see Robinson, 809 P.2d at 1322, the parole officer had reason to
search Cantley’s residence for contraband to bolster the State’s argument that
Cantley’s parole should be revoked.

                                         -10-
Manual, “When conducting a search where the offender is a cohabitant, the search

will entail only the offender’s assigned area of the residence, unless the third

party agrees to a search of their area by signing [a consent form].” Probation and

Parole Manual ch. 3, at 4 (Dec. 1, 1992). The officers searched only the common

areas of the residence and the one bedroom Cantley had previously identified as

his. Ms. Cantley’s consent was not needed to search those areas. See, e.g., State

v. West, 517 N.W.2d 482, 491 (Wis. 1994) (“[T]he parole search may extend to all

parts of the premises to which the probationer or parolee has common authority,

just as if it were a consent search.”); State v. Johnson, 748 P.2d 1069, 1073-74

(Utah 1987) (holding warrantless search of common areas of parolee’s apartment,

which he shared with his mother, was lawful even though parolee’s mother may

not have consented to the search); see also 4 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 10.10(d), at 778 n.89 (3d ed.

1996) (“If the . . . parolee is sharing living quarters with someone else . . . the

[warrantless] search may nonetheless extend to all parts of the premises to which

the . . . parolee has common authority.”); cf. United States v. Davis, 932 F.2d 752,

758 (9th Cir. 1991) (rejecting co-defendant’s argument that officers exceeded

scope of warrantless search of probationer’s residence when they searched safe

which was under the apparent joint control of probationer and co-defendant, and

stating item must be “owned, controlled, or possessed” by probationer in order for


                                          -11-
item to fall within scope of warrantless search). As such, the search did not

invade Ms. Cantley’s right to privacy.

      This court therefore holds the warrantless search of Cantley’s residence

was reasonable under the Fourth Amendment, as it complied with all four of the

Manual requirements, which are themselves reasonable. See Griffin, 483 U.S. at

880; Lewis, 71 F.3d at 363.

      Cantley also contends that the district court erred by denying his motion to

suppress evidence seized during the search of the hotel room where he was

arrested approximately two weeks after the search of his residence. The arresting

officers received a tip from a confidential informant that Cantley was staying at

the hotel. The evidence presented by the government at the suppression hearing

showed that the hotel room was registered to “Darrell Rhone” and that Cantley

was not a registered occupant of the hotel. Cantley presented no evidence

whatsoever as to Rhone’s identity, his relationship with Rhone, or why he was

staying in Rhone’s hotel room. The district court concluded that because Cantley

failed to show he had a reasonable expectation of privacy in the hotel room, he

lacked standing to challenge the search of the room.

      In his brief, Cantley does not address the district court’s conclusion that he

lacked standing. Instead, he argues the search exceeded the allowable scope of a

search incident to arrest. “It is fundamental law that a person desiring to have


                                         -12-
evidence suppressed must first show he has standing to object to the search.”

United States v. Deninno, 29 F.3d 572, 576 (10th Cir. 1994). The burden was

thus on Cantley “to show by a preponderance of the evidence that [he] was

personally aggrieved by the alleged search and seizure because it invaded [his]

subjective expectation of privacy which society is prepared to recognize as

reasonable.” United States v. Carr, 939 F.2d 1442, 1444 (10th Cir. 1991).

Because Cantley does not dispute the district court’s finding that he lacked

standing, we affirm the district court’s denial of standing and do not address his

argument that the search exceeded the allowable scope of a search incident to

arrest. 8 See Deninno, 29 F.3d at 576 (affirming district court’s denial of motion

to suppress because defendant failed to address district court’s conclusion that he

lacked standing).

      B. Crack Cocaine Enhancement

      Cantley next argues that the district court improperly sentenced him under

the crack cocaine guideline. The PSR calculated Cantley’s base offense level of

38 based on its determination that the “cocaine base” involved in the offenses was




      8
       We note the district court’s conclusion regarding standing of an
unregistered hotel occupant is in accord with Tenth Circuit case law. See
Deninno, 29 F.3d at 575-76 (noting defendant had not established reasonable
expectation of privacy in motel room, which was registered in another’s name);
Carr, 939 F.2d at 1446 (same).

                                         -13-
“crack cocaine.” 9 Cantley objected to the PSR, arguing that “cocaine base” for

purposes of U.S.S.G. § 2D1.1(c) 10 means only “crack cocaine” and that the

government had not met its burden of proving the cocaine base in question was in

fact “crack cocaine.” At the sentencing hearing, the district court specifically

found that the substances in question were crack cocaine based on “[t]he chemical

analysis; the observation of witnesses as to what they saw, [including] actually

rocking up cocaine; and . . . the testimony of people who made purchases of crack

cocaine.”

      We review the district court’s factual findings for clear error and its

application of the Sentencing Guidelines de novo. See United States v. Kissick,

69 F.3d 1048, 1051 (10th Cir. 1995). At sentencing, the government must prove

by a preponderance of the evidence the amounts and types of controlled

substances related to the offense. See Deninno, 29 F.3d at 580.


      9
       The Sentencing Guidelines punish “crack cocaine” 100 times more harshly
than other forms of cocaine. See U.S.S.G. § 2D1.1(c).
      10
         Note (D) to U.S.S.G. § 2D1.1(c) provides: “‘Cocaine base,’ for the
purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form
of cocaine base, usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form.” The Sentencing
Commission added this language, effective November 1, 1993, to explain that, for
purposes of sentencing, “‘forms of cocaine base other than crack (e.g., coca paste,
an intermediate step in the processing of coca leaves into cocaine hydrochloride,
scientifically is a base form of cocaine, but it is not crack) [should] be treated as
cocaine.’” United States v. Kissick, 69 F.3d 1048, 1052 (10th Cir. 1995) (quoting
U.S.S.G. App. C, Amend. 487 (Nov. 1, 1993)).

                                        -14-
      To support his argument, Cantley relies primarily on the chemical analysis

reports, which identify the substances solely as “cocaine base.” 11 The parties’

stipulation, which was based on the chemical analyses, uses the terms “cocaine

base” and “crack cocaine” interchangeably. For example, the stipulation on the

substances found during the search of the hotel room states that the following

evidence was tested: “Four clear plastic bags each containing individually

wrapped rocks of cocaine base . . . .” The stipulation goes on to describe each of

the bags as containing a certain number of grams of “crack cocaine.”

      Cantley agreed to the stipulation and did not object when it was read into

the record. Moreover, the officers who conducted the searches all testified that

the substances were “crack cocaine.” 12 Finally, all the witnesses who testified

they purchased drugs from or sold drugs to Cantley described the substances in

question as “crack cocaine,” testified that they witnessed the “rocking-up”

      11
        The chemical analysis reports do, however, identify all the substances as
“rock-like” or “chunky,” not as powder or liquid.
      12
         In fact, after the first officer testified, the trial judge addressed this very
issue. The judge stated:
       Without objection, Mr. Nelson has looked at various exhibits and he
       has called the exhibits “crack cocaine” and he has said that this was
       tested in the lab and it was positive for crack cocaine. In the absence
       of any objection, I’m just assuming that somewhere there’s floating
       around a stipulation . . . .
In response, the government noted the stipulation had been filed. The judge then
asked whether defense counsel had discussed the stipulation with their clients and
whether the clients agreed to the stipulation. Cantley’s counsel responded in the
affirmative.

                                          -15-
process, or both.

      Cantley’s reliance on the use of the term “cocaine base” in the chemical

analysis reports does not negate the officers’, the witnesses’, and the stipulation’s

identification of the substances as “crack cocaine.” Cf. United States v. Wilson,

103 F.3d 1402, 1407 (8th Cir. 1997) (“It is irrelevant that the chemist did not

specifically say ‘this substance is cocaine base which is the same as crack’ or

words to that effect and [the defendant] has cited no authority for the proposition

that the magic word ‘crack’ must always be used instead of the term cocaine

base.”). Further, contrary to Cantley’s assertion, the district court properly relied

on the testimony of witnesses concerning their personal drug transactions with

Cantley and their observations of the “rocking-up” process. Cf. United States v.

Silvers, 84 F.3d 1317, 1327 (10th Cir. 1996) (“We have held countless times that

if no drugs are actually seized, the government can nevertheless prove the type

and quantity of drugs attributable to the defendant through other evidence . . . .”),

cert. denied, 117 S. Ct. 742 (1997); United States v. Hall, 109 F.3d 1227, 1235-36

(7th Cir.) (rejecting defendants’ argument that government failed to prove cocaine

base involved was crack cocaine and noting that witness testimony was

“particularly persuasive given that the Guidelines define ‘crack’ with reference to

how that term is used on the street”), cert. denied, 118 S. Ct. 153 (1997).

      Cantley’s reliance on United States v. James, 78 F.3d 851 (3d Cir.), cert.


                                         -16-
denied, 117 S. Ct. 128 (1996), is thus misplaced. 13 In James, the government

offered no evidence to prove that the type of cocaine base possessed by the

defendant was crack cocaine. In this case, however, there was ample evidence

that Cantley dealt in crack cocaine. Finally, though we recognize the burden is on

the government to prove the substances were crack cocaine, Cantley has presented

no evidence whatsoever to show that the substances were not crack cocaine.

      This court concludes the government’s evidence was sufficient to establish

by a preponderance of the evidence that Cantley dealt in crack cocaine.

Accordingly, the district court did not err by sentencing Cantley under the crack

cocaine guideline.

      C. Role in the Offense

      Cantley next argues the district court erred by applying a four-level

enhancement for his role in the offense pursuant to U.S.S.G. § 3B1.1(a), which

provides: “If the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive, increase by 4



      13
        In James, the defendant pleaded guilty to possession and distribution of
“cocaine base,” but was sentenced under the crack cocaine guideline. See James,
78 F.3d at 852-53. The chemical analysis report identified the substance as
“cocaine base.” See id. at 855. At the plea colloquy, both the defendant and
court referred to the substance as “cocaine base,” whereas the government
referred to the substance as “crack cocaine.” See id. at 856. On appeal, the Third
Circuit held the sentence was improper because the government did not prove the
cocaine base was crack cocaine. See id. at 858.

                                        -17-
levels.”

      This court reviews the district court’s factual findings as to the defendant’s

role in the offense under a clearly erroneous standard. See United States v. Lacey,

86 F.3d 956, 967 (10th Cir.), cert. denied, 117 S. Ct. 331 (1996). Questions of

law regarding application of the Sentencing Guidelines are reviewed de novo.

See id.

      An application note to U.S.S.G. § 3B1.1 specifies several factors the

district court should consider in determining a defendant’s role in an offense,

including

      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 application note 4. “These factors are intended only to guide

the analysis of the sentencing court, and the [G]uidelines do not require that each

be satisfied for § 3B1.1 to apply.” Lacey, 86 F.3d at 967.

      As justification for the four-level enhancement of Cantley’s sentence, the

trial judge stated:

      [T]his was an operation that went over a year and nine months
      approximately, it went on in at least three different locations. It went
      on as a -- as an operation of considerable complexity that required
      the Houston source, some differentiation by the participants in their
      roles . . . .

                                         -18-
              Now, I’ll specifically find that the trial testimony was such
      that it’s established by a preponderance of the evidence that Mr.
      Cantley identified the people to be brought into this operation and
      recruited them into the operation; that he had an almost paternal role
      to play in it thereafter by supplying accommodations, clothing, food,
      refreshment, entertainment and a cash allowance to these people; that
      there’s abundant evidence that what money changed hands, it
      ultimately made its way back to Mr. Cantley or to Sharon Cantley,
      who held it for Mr. Cantley; that Mr. Cantley gave advice and
      direction to other people as to how to run a drug business. . . .
              I see no reason to count beyond five, but the five-person aspect
      of this is certainly satisfied by Mr. Cantley himself, who can be
      counted, Monica Carter, the two Mr. Warners, and Sharon Cantley,
      whose participation as members of the same operation is clear. And
      this is not a case in which the evidence establishes a few discrete,
      entirely separate, almost coincidentally separate sales to people. It
      was a business . . . .

      Cantley apparently challenges both the district court’s factual findings and

its application of those findings to the Sentencing Guidelines. After carefully

reviewing the record, we cannot say the district court’s factual findings were

clearly erroneous. For example, several of the government’s witnesses testified

that others in the conspiracy worked for Cantley; that Cantley paid his “crew”

with cash and drugs and supplied them with lodging, clothes, and food; and that

the crack cocaine sold at the various crack houses was all supplied by Cantley.

      Further, we agree with the district court’s assessment of Cantley’s

leadership role based on those findings. There is ample evidence that Cantley

“‘exercised some degree of control over others involved in the commission of the

offense [and was] responsible for organizing others for the purpose of carrying


                                        -19-
out the crime.’” Lacey, 86 F.3d at 967 (quoting United States v. Reid, 911 F.2d

1456, 1464 (10th Cir. 1990)). We therefore conclude the district court did not err

by applying a four-level enhancement for Cantley’s role in the offense.

      D. Burden of Proof

      Cantley’s final argument is that the district court erred by failing to require

the government to assume the burden of proof with respect to contested

sentencing issues. Cantley specifically argues the government did not meet its

burden of proving the bases for sentence enhancements, namely the four-level

enhancement for Cantley’s role in the offense and the applicability of the crack

cocaine guideline. Because this argument is subsumed by Cantley’s previous

arguments directly challenging these enhancements, we need not address this

argument separately.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.




                                        -20-
