
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1780                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                        MAXIMO E. TEJADA-BELTRAN, ALIAS, ETC.,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Jose M. Feliciano-Valera on brief for appellant.               ________________________               Guillermo  Gil,  United  States  Attorney, Jose  A.  Quiles-               ______________                             _________________          Espinosa, Senior  Litigation Counsel, and  Jeanette Mercado-Rios,          ________                                   _____________________          Assistant United States Attorney, on brief for appellee.                              _________________________                                    March 31, 1995                              _________________________                    SELYA,  Circuit Judge.   This is  another in  the ever-                    SELYA,  Circuit Judge.                            _____________          lengthening queue of sentencing appeals that have crowded federal          appellate  dockets  since  the  advent of  guideline  sentencing.          After carefully considering appellant's asseverations, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Because appellant's conviction and sentence stem from a          guilty  plea rather than a  trial, we derive  the pertinent facts          from the  presentence investigation  report (PSI Report)  and the          transcripts of the change-of-plea  and disposition hearings.  See                                                                        ___          United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).          _____________    _____                    On September 20, 1993, federal authorities arrested two          women, both of whom  were citizens of the Dominican  Republic, at          San  Juan's  principal international  airport.1    The women  had          unsuccessfully  attempted to  gain entry  into the  United States          using  ersatz  passports.     In  short  order,  the  authorities          determined  that  defendant-appellant  Maximo  E.  Tejada-Beltran          (Tejada) had furnished the bogus documents and had offered to pay          a  student  apprentice  employed  on a  part-time  basis  by  the          Immigration and  Naturalization Service (INS) $1,000  per head to          ensure his clients' unlawful entry.                    On  September  24,  the apprentice  arranged  a meeting          between Tejada and  an undercover  agent.  During  the course  of          this  session, appellant offered to pay the agent, who was posing          as a corrupt INS inspector, a bounty of $1,000 for each alien who                                        ____________________               1All events  occurred in 1993  unless otherwise specifically          indicated.                                          2          was  permitted to sneak into the United States from the Dominican          Republic.   The men struck a deal.   Appellant suggested that the          bribes be  paid  at  the  inspection booth  coincident  with  the          illegal  entries and forecast that  clients would begin to arrive          between September 26 and October 2.                    On October  2, appellant spoke with the agent, told him          he  had  scheduled an  arrival for  the  next day,  described the          traveller, and confirmed  that he would be carrying  a fraudulent          passport made out  in an  assumed name.   Appellant informed  the          agent  that the alien would pay him  upon arrival.  On October 3,          the alien reported to  the inspection booth and handed  the agent          an  envelope containing  $1,000  in cash.    The agent  thereupon          facilitated the  smuggle.  That evening,  appellant confirmed his          client's successful entry and told the agent that his father, who          lived in Puerto Rico,  would retrieve the fraudulent passport  so          that it  could be recycled  for future  use.  He  also speculated          that, in the future,  his father, rather than his  clients, might          make the  payoffs to the agent.                    In  the weeks  that  followed, appellant  identified  a          steady stream of clients to the agent, regularly promising to pay          him  $1,000 for each illegal alien  who entered without incident.          These  arrangements   were  consummated  client  by   client,  on          different dates.  On each  occasion appellant provided the  agent          with the name and description of the alien or aliens in question,          the anticipated arrival date, and a  suggested method of payment.          For  example, on October 7,  appellant arranged for  the agent to                                          3          admit two  clients bearing resident alien cards  that belonged to          relatives.   The next day, when the  aliens gained entry, each of          them delivered an envelope containing $1,000 to the agent.2                    Appellant often boasted about his connections.  He told          the agent  that he had people in Puerto Rico who would pay United          States citizens to petition the State Department for passports or          kindred documents, and then  turn them over to appellant  for use          in his nefarious  scheme.   Appellant also bragged  about a  wide          array  of  quondam  accomplices:   a  person  who  had access  to          sophisticated  machinery that  could be  used to  alter authentic          documents, such as United States passports and alien registration          cards, and who  would forge  documents for him  in the  Dominican          Republic; two immigration inspectors at airports in the Dominican          Republic  who accepted bribes to assist in the smuggles; a person          in  New York  who  would facilitate  the  illegal immigration  of          aliens  entering the country via  New York; and  an individual in          Miami  who, on  request,  would obtain  "secure" ink  (supposedly          available  only to  the government)  that could  then be  used to          doctor United States  passports.   In addition to  this cadre  of          confederates, appellant also mentioned that he would from time to          time  hire attorneys to represent aliens caught in the toils when          planned entries went awry.                    Between October 16 and November 6, appellant negotiated          the  illegal entry  of  at  least  seven  more  clients.    When,                                        ____________________               2Notwithstanding  the  agent's   efforts,  the   authorities          arrested one  of these men  when they discovered  he had a  prior          felony conviction in the United States.                                          4          thereafter,  appellant   told  the  agent  that   he  wanted  two          particular aliens  admitted, and  that he, personally,  would pay          $2,000 to smooth the way, the INS decided to spring the trap. The          authorities  arrested  appellant  on  November 16  while  he  was          delivering the  $2,000 gratuity to the agent.  At the time of his          apprehension, arrangements had already  been made for the illegal          entry of three more aliens (scheduled to arrive later that day).                    In a matter of weeks, a  federal grand jury handed up a          22-count indictment (summarized in the  Appendix).  The first ten          counts charged appellant  with encouraging or inducing  specified          aliens  illegally to enter the  United States, in  violation of 8          U.S.C.    1324(a)(1)(D); the  next five counts  charged appellant          with  furnishing altered passports to  specific aliens to be used          to gain admittance  into the  United States, in  violation of  18          U.S.C.   1543; and  the remaining seven counts charged  appellant          with bribery  of a public official,  in violation of 18  U.S.C.            201(b)(1)(C).                    After some preliminary skirmishing (not relevant here),          appellant pled  guilty to four counts of  encouraging or inducing          aliens illegally to enter the United States (counts 1, 3,  5, 6),          three counts of furnishing altered passports (counts 11, 13, 14),          and three counts  of bribery (counts  16, 17, 18).   On June  24,          1994,  the  district  court convened  the  disposition  hearing.3                                        ____________________               3A sentencing  court customarily  applies the guidelines  in          effect on the date of sentencing.  See United States v. Bell, 953                                             ___ _____________    ____          F.2d 6, 7 (1st Cir. 1992); United States v. Harotunian,  920 F.2d                                     _____________    __________          1040, 1041-42  (1st  Cir.  1990).    Accordingly,  this  case  is          governed  by the November 1, 1993, edition of the guidelines, and                                          5          Relying  for the  most part on  the findings  and recommendations          contained in the PSI Report, the court treated the bribery counts          as  predominant; set the base  offense level at  10, see U.S.S.G.                                                               ___            2C1.1,  3D1.3;  raised it  by  two  levels because  appellant's          misconduct  involved multiple bribes,  see U.S.S.G.  2C1.1(b)(1);                                                 ___          applied an increase of  three more levels because the  bribes, in          the aggregate, had  a value  in excess of  $10,000, see  U.S.S.G.                                                              ___            2C1.1(b)(2)(A), 2F1.1(b)(1)(D); added four more  levels because          of appellant's role  in the offense, see  U.S.S.G.  3B1.1(a); and                                               ___          subtracted  three  levels for  acceptance of  responsibility, see                                                                        ___          U.S.S.G.   3E1.1.    The   district  court  then  calculated  the          guideline  sentencing  range  at  21-27  months  (offense   level          16/criminal history category I); imposed a 27-month incarcerative          sentence (accompanied by a  three-year term of supervised release          and a  $500 special assessment);  and dismissed the  other twelve          counts contained in the indictment.  This appeal followed.          II.  ANALYSIS          II.  ANALYSIS                    On appeal, Tejada  assigns error in two  respects.4  We          address his claims seriatim.                             ________                                A.  Relevant Conduct.                                A.  Relevant Conduct.                                    ________________                                        ____________________          all references in this opinion are to that version.               4In the district court, appellant  also argued that each  of          the  bribery counts represented installment payments referable to          a single bribe, and, hence, could  not carry the weight of a two-          level  increase under  U.S.S.G.   2C1.1(b)(1).   The court  below          rejected  this  argument, and  appellant  has not  renewed  it on          appeal.  Thus, we  deem it to  be waived.   See United States  v.                                                      ___ _____________          Slade, 980  F.2d 27, 30 n.3 (1st Cir. 1992); United States v. St.          _____                                        _____________    ___          Cyr, 977 F.2d 698, 701 (1st Cir. 1992).          ___                                          6                    Appellant  strives to  persuade us  that the  record in          this case will not  support a finding, by a fair preponderance of          the  evidence, that  the  offense of  conviction involved  bribes          totalling more  than $10,000.  Since  this exhortation challenges          the  sentencing court's findings of fact, our review is for clear          error.  See United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.                  ___ _____________    _______          1992).  We discern none.                    With respect  to offenses  involving bribery  of public          officials, the sentencing guidelines use  the amount of the bribe          offered  or  given  as  an  important  indicium  in  fixing   the          defendant's offense  level  and, hence,  the ultimate  sentencing          range.     See  U.S.S.G.    2C1.1(b)(2)(A);   2F1.1(b)(1).    The                     ___          aggregate amount of the  covered bribes is to be derived from the          sum total of all relevant  conduct   a datum that can  be arrived          at  only after consideration of  all acts "that  were part of the          same course of conduct or common scheme or plan as the offense of          conviction."  U.S.S.G.  1B1.3(a)(2); see  generally United States                                               ___  _________ _____________          v.  Sklar, 920  F.2d 107, 110  (1st Cir. 1990);  United States v.              _____                                        _____________          Blanco,  888  F.2d 907,  910 (1st  Cir.  1989).   Assembling this          ______          compendium   requires  the  sentencing  court  to  consider  both          consummated and unconsummated bribes.   The failure to consummate          a bribe neither detracts from the donor's culpability nor renders          the  amount involved ineligible  for use  in setting  the donor's          offense level; the guidelines treat solicitations and attempts as          equivalent to completed offenses.  See  U.S.S.G.  2C1.1(b)(2)(A),                                             ___          comment. (backg'd).                                          7                    At  the disposition  hearing,  the  lower court  relied          heavily  on  the PSI  Report.   It  concluded that  appellant had          offered or given no fewer than twelve bribes,  each in the amount          of $1,000.  At  bottom, this conclusion is the  product of simple          multiplication:  the price  per alien times the number  of aliens          smuggled.                    As to the first integer, the court could plausibly have          found the  price to be $1,000,  per head.  After  all, the record          indicates  that appellant  offered to  pay the  apprentice $1,000          apiece  for the  first two  aliens admitted,  and that he  had an          ongoing  agreement with  the  undercover agent  to  pay the  same          price.  These facts adequately ground an inference that appellant          offered or gave a $1,000 bribe for each client whom he endeavored          to smuggle into the United States.                    By  like token,  the court  could plausibly  have found          that  no fewer  than  twelve aliens  were  involved.   The  court          identified the aliens it  had in mind by reference  to particular          incidents,  citing  the  five  client  arrivals that  undergirded          counts  1 through 5, all  of which occurred  between September 20          and October 8, and "at least seven" additional arrivals occurring          between  October 16 and the  first week in  November.5  Appellant          would have us  draw the  line at  those aliens  specified in  the                                        ____________________               5Tejada  asserts for the first time on appeal that only five          illegal  aliens  entered  between  October  16  and  November  6.          Because  he did not advance  this assertion below,  he has waived          any right to raise the issue on  appeal.  See Dietz, 950 F.2d  at                                                    ___ _____          55.   At  any  rate, the  assertion  lacks force.    It fails  to          recognize that, in determining  relevant conduct, the judge could            and did   go beyond the incidents described in the indictment.                                           8          counts of  conviction, but this approach  misperceives the method          of the guidelines.  Relevant conduct is not limited to the counts          of conviction.  It may include acts that  were embodied in counts          originally charged but later dropped, see, e.g., United States v.                                                ___  ____  _____________          Garcia, 954 F.2d 12, 15 (1st Cir. 1992), and acts that were never          ______          charged  at all,  see U.S.S.G.   1B1.3, comment. (backg'd).   For                            ___          present  purposes,  this  means  that the  sentencing  court,  in          fashioning    the    three-level   enhancement    under   section          2C1.1(b)(2)(A), could appropriately  aggregate all bribes offered          or given  by appellant as part  of the same course  of conduct as          the  offense  of  conviction,  whether  or  not  charged  in  the          indictment and whether or not encompassed by his guilty plea.                    This gets the grease  from the goose.  On  this record,          the sentencing court could certainly have included the ten aliens          mentioned  in the  indictment  (including those  aliens who  were          mentioned in  counts that  were eventually dismissed).   Although          appellant  argues that the first two incidents, in which he dealt          with  the student  apprentice rather  than the  undercover agent,          were  outside  the scope  of  relevant conduct,  and,  hence, not          properly includable,  we believe that  the court below  had ample          room to  reach the opposite  conclusion.  Because  the apprentice          introduced  Tejada to  the undercover  agent, we  think  that the          court could rationally have viewed the serial bribes as part of a          single scheme and aggregated  all the entries under the  relevant          conduct rubric.                    Over and above these ten, the court also enumerated two                                          9          other  aliens  for  whose  entry appellant  negotiated  with  the          undercover  agent  during  the  period from  October  16  through          November   6.    While  these  persons  were  not  named  in  the          indictment,  the PSI  Report  and the  audiotapes of  appellant's          conversations with the agent adequately support their  inclusion.          No more is exigible.   See United States v.  Gonzalez-Vazquez, 34                                 ___ _____________     ________________          F.3d 19, 25 (1st  Cir. 1994) (explaining that  "[f]acts contained          in  a  presentence  report  ordinarily  are  considered  reliable          evidence for  sentencing purposes"); United States  v. Morillo, 8                                               _____________     _______          F.3d 864, 872  (1st Cir. 1993)  (same).  If  more were needed  to          bell the cat, appellant was in the process of delivering a $2,000          bribe  at the time of his arrest, and had  three more smuggles in          the  offing.  Though these entries were not in fact accomplished,          they  could   nonetheless  be  counted  in  determining  relevant          conduct.                    A  sentencing  court  "need   only  make  a  reasonable          estimate of the loss, given the available information."  U.S.S.G.           2F1.1, comment.  (n.8).  Measured  by this yardstick,  the court          below  had a  sound  basis  both  for concluding  that  appellant          attempted to  facilitate the illegal  entries of at  least twelve          aliens, and for multiplying  that number of aliens by  $1,000 per          head to obtain the overall amount of  the bribes offered or given          during the  course  of the  scheme.   Even  if  the record,  read          generously  to  appellant, might  conceivably  support  some less          damning scenario   and we do not  suggest that it can   we  would          not meddle.   Our review  is only  for clear error    and  "where                                          10          there is more than  one plausible view of the  circumstances, the          sentencing  court's choice among  supportable alternatives cannot          be clearly erroneous."  United States v. Ruiz,  905 F.2d 499, 508                                  _____________    ____          (1st Cir. 1990).                               B.  Role in the Offense.                               B.  Role in the Offense.                                   ___________________                    U.S.S.G.  3B1.1(a)  provides for elevating  the offense          level  of "an  organizer or  leader of  a criminal  activity that          involved five or more participants or was otherwise extensive" by          four levels.  The  district court seized upon this  guideline and          hiked appellant's offense  level on  the theory that  he was  the          organizer of an extensive criminal enterprise.  Appellant assigns          error because, in his view, the record fails to disclose that  he          exercised  any degree  of control  over others,  that  he brought          others together for  the purpose  of carrying out  the crime,  or          that the criminal activity encompassed five or more participants.                    Assessing a defendant's role in the  offense is a fact-          specific task,  suggesting by its very  nature "that considerable          respect be  paid to the views  of the nisi prius  court."  United                                                                     ______          States  v. McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990) (quoting          ______     ________          United States  v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990)).  It          _____________     ______          follows, therefore, that unless a mistake  of law looms   and  we          see  none  here      a  sentencing  court's  determination  of  a          defendant's role will be set aside only for clear error.  See id.                                                                    ___ ___                    In order  to invoke section 3B1.1(a),  a district court          must  make both  a  status determination     a finding  that  the                                          11          defendant  acted  as  an  organizer  or  leader  of  the criminal          activity     and  a scope  determination     a  finding that  the          criminal activity met either  the numerosity or the extensiveness          benchmarks established by  the guideline.  See McDowell, 918 F.2d                                                     ___ ________          at 1011;  United States v.  Preakos, 907  F.2d 7, 9-10  (1st Cir.                    _____________     _______          1990)  (per curiam).  Tejada's case easily passes both aspects of          the test.                    1.   Status.  Although the sentencing guidelines do not                    1.   Status.                         ______          specifically  define  the term  "organizer"  as  used in  section          3B1.1,  the commentary supplies a valuable clue.  It tells courts          that "[t]his adjustment is included primarily because of concerns          about  relative  responsibility."     U.S.S.G.   3B1.1,  comment.          (backg'd); see generally  United States v. Herrera, 878 F.2d 997,                     ___ _________  _____________    _______          1000  (7th  Cir.  1989).     Because  the  Sentencing  Commission          envisions  large-scale criminal  activities as  hierarchical, the          guidelines  punish the  persons  atop the  pyramid more  severely          based on their relative responsibility.                    To aid  in  the process  of distinguishing  top-echelon          roles from other, less culpable, managerial or supervisory roles,          the   Commission  directs  judges'  attention  to  seven  factors          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                                          12          exercised  over others."   U.S.S.G.   3B1.1, comment.  (backg'd).          This  list   is  intended   to  be  representative   rather  than          exhaustive.  See, e.g., United States v. Talladino, 38 F.3d 1255,                       ___  ____  _____________    _________          1260  (1st  Cir.  1994)  (explaining  that  the  seven  telltales          identified  in  the  Commission's  commentary,  while  useful  as          guideposts, do  not possess  "talismanic  significance").   There          need not be proof of each and every factor before a defendant can          be termed  an organizer or leader.   See Preakos, 907  F.2d at 9;                                               ___ _______          see also United  States v.  Rodriguez Alvarado, 985  F.2d 15,  20          ___ ____ ______________     __________________          (1st  Cir. 1993)  (illustrating  that a  court appropriately  may          enhance  a  defendant's  offense  level under   3B1.1(a)  or  (b)          despite the lack of any evidence as to one or  more of the listed          factors).6                      Appellant's most  touted argument is that  he cannot be          deemed an  organizer because  our decision  in  United States  v.                                                          _____________          Fuller, 897 F.2d 1217 (1st Cir.  1990), requires a finding of the          ______          exercise  of some degree of control over other individuals before          a  defendant becomes  eligible for  any of  the aggravating  role          adjustments  described in  section  3B1.1.   But appellant  reads          Fuller through  rose-colored spectacles.    There, the  defendant          ______          contended that he should not have received an upward role-in-the-          offense adjustment  because the government adduced  no proof that          he recruited anyone to assist  him with his criminal  activities,                                        ____________________               6In  Rodriguez  Alvarado,  the district  court  enhanced the                    ___________________          defendant's  sentence although  only three  of the  seven factors          (recruitment of  accomplices, a substantial role  in planning the          crime,  and the  extensive scope  of  the illegal  activity) were          present.                                          13          or  that he  directed  other  persons  in carrying  out  criminal          activities.   See Fuller, 897 F.2d at  1219.  We vacated Fuller's                        ___ ______          sentence, concluding that                    in  the absence of  any evidence  that Fuller                    exercised control over [other] persons or was                                                           ______                    otherwise responsible for organizing  them in                    _____________________________________________                    the commission of the  offense, the mere fact                    ______________________________                    that Fuller had  dealt with a  large quantity                    of marijuana does not support  a finding that                    he was an  organizer, leader, supervisor,  or                    manager.          Id. at 1221  (emphasis supplied).   Thus, Fuller, properly  read,          ___                                       ______          stands  for the proposition that section 3B1.1 "does not apply to          a defendant who merely  organizes or supervises criminal activity          that  is executed  without  the aid  of  others."   Id.  at  1220          _______________________________________________     ___          (emphasis  supplied); see also Rodriguez Alvarado, 985 F.2d at 20                                ___ ____ __________________          (holding that the sentencing  court did not err when  it enhanced          appellant's sentence as  a "manager or  supervisor" based on  his          role  in  planning and  organizing  a  criminal scheme  involving          others, despite the absence of any finding concerning appellant's          control over  underlings or subordinates); see generally U.S.S.G.                                                     ___ _________           3B1.1,  comment. (n.2)  (explaining  that  an upward  adjustment          under  3B1.1  requires that  "the defendant  must  have been  the          organizer, leader, manager,  or supervisor of  one or more  other                                                     ______________________          participants") (emphasis  supplied).  Thus, Fuller  does not help          ____________                                ______          appellant;  his crimes  were  not    and  could not  have been             committed without the complicity of others.                    Fuller  aside,  appellant  posits that  control  over a                    ______          minimum  of four others (bringing the  total number of criminally          culpable  participants, including  the defendant,  to five)  is a                                          14          sine  qua  non  for a  finding  that a  particular  person  is an          ____  ___  ___          organizer within the ambit of section 3B1.1(a).  In mounting this          steed,  appellant  in effect  treats  the  terms "organizer"  and          "leader"  as  synonymous,  or,  at  the  least,  as  functionally          equivalent.   This lack of precision is arguably to his advantage          because some  courts have required the exercise of direct control          over others  as an attribute of leadership status.7  In the final          analysis, however, the  terms cannot be casually conflated.   The          language  of  section 3B1.1(a)  is  disjunctive.   The  guideline          demands  the  four-level increase  so  long as  the  defendant is          either "an organizer or leader."  [Emphasis supplied].            ______               __                    This  disjunctive  usage  cannot  be  written  off   as          linguistic happenstance.   We can only assume that the Sentencing          Commission used both words    "organizer" and "leader"    because          it knew that they had distinct and disparate meanings.  While the          term "leader" implies the exercise of some degree of dominance or                                        ____________________               7While a defendant may be classified as an "organizer" under          section  3B1.1(a) even  if he  did not  personally control  other          participants  in an  "extensive"  criminal  enterprise, see  text                                                                  ___          infra, some courts have held that a defendant may not receive a            _____          3B1.1(a) enhancement as a  "leader" unless he personally controls          at  least four  other participants  or the  criminal activity  is          found  to be "otherwise extensive."  See United States v. Carson,                                               ___ _____________    ______          9 F.3d  576, 584 (7th  Cir. 1993), cert.  denied, 115 S.  Ct. 135                                             _____  ______          (1994); United States v. Reid, 911 F.2d 1456, 1465 n.8 (10th Cir.                  _____________    ____          1990), cert. denied,  498 U.S. 1097 (1991).   It remains an  open                 _____ ______          question  in  this  circuit  as   to  whether  a  defendant  must          personally control a bare minimum  of four other participants  in          order  to receive a section 3B1.1(a) enhancement as a "leader" of          criminal activity involving five or more participants, or whether          the two determinations   leadership  status and minimum number of          participants   are made independently of one another.  See, e.g.,                                                                 ___  ____          United  States v.  Dota,  33 F.3d  1179,  1189 (9th  Cir.  1994),          ______________     ____          petition for  cert.  filed (U.S.  Jan.  9, 1995)  (No.  94-7604).          ________ ___  _____  _____          Tejada's case does not require us to answer this question.                                          15          power  in a hierarchy, and  also implies the  authority to ensure          that other persons will heed commands   by definition, one cannot          lead  if no one  follows   the  term "organizer"  has a different          connotation.    One may  be  classified as  an  organizer, though          perhaps  not as  a  leader, if  he coordinates  others  so as  to          facilitate the  commission of  criminal activity.   See Rodriguez                                                              ___ _________          Alvarado,  985 F.2d  at 20  (finding enhancement  warranted where          ________          "appellant played  an important  role in planning  and organizing          the  offense"); accord United States v. Varela, 993 F.2d 686, 691                          ______ _____________    ______          (9th Cir.) ("An enhancement may be proper where . . . a defendant          organizes others in the commission  of the criminal activity even          though  he  does not  retain a  supervisory  role over  the other          participants."),  cert. denied,  114  S. Ct.  232 (1993);  United                            _____ ______                             ______          States  v. Harry, 960 F.2d  51, 54 (8th  Cir. 1992) ("[D]efendant          ______     _____          need not have directly  controlled others in the organization  to          have  functioned  as an  organizer.").   The  key  to determining          whether a  defendant  qualifies as  an  organizer is  not  direct          control but relative responsibility.  Cf., e.g., United States v.                                                __   ____  _____________          Skinner, 986 F.2d 1091, 1097-98 (7th Cir. 1993) (suggesting  that          _______          in  reviewing aggravating role enhancements, an appellate court's          principal focus  must be  on relative responsibility  rather than          upon any one  of the seven Commission-identified factors).  When,          as now, the organizer stages an extensive activity in such a  way          as to  evince an increased degree of relative responsibility, the          four-level   enhancement  applies  whether   or  not  he  retains          supervisory control over the other participants.  See Varela, 993                                                            ___ ______                                          16          F.2d at  691-92 (explaining that "[t]he  enhancement reflects the          greater level of culpability of  the participant who arranges the          transaction");  see  also  Rodriguez  Alvarado, 985  F.2d  at  20                          ___  ____  ___________________          (finding  enhancement warranted  when the  defendant's activities          "entailed  an   increased  degree  of   responsibility  for   the          commission of the offense").                     In this instance, we think it is nose-on-the-face plain          that the sentencing court did not  err in ranking appellant as an          organizer.   The record attests,  directly or by  fair inference,          that appellant  orchestrated the entire scheme,  played a pivotal          role  in committing  the crimes,  made decisions  about when  and          where unlawful entries would be attempted, recruited accomplices,          and  retained a degree of control over  at least one of them (the          document retriever).  Viewed from any angle, he bears significant          responsibility for the scheme.8                    We   hold  that   retention  of   control  over   other          participants, although sometimes relevant  to an inquiry into the          status  of a putative organizer, is not an essential attribute of          organizer status.  Because an organizer is at bottom a person who          forms diverse elements into a whole consisting of interdependent,          coordinated parts,  geared for  concerted action, see,  e.g., The                                                            ___   ____  ___          Random  House Dictionary  of the  English Language  1365  (2d ed.          __________________________________________________                                        ____________________               8Indeed,   at  the  disposition  hearing,  appellant  freely          admitted  that  he  alone  was  responsible  for  the  "planning,          coordinating, and  executing" of  the scheme, the  recruitment of          aliens, and  the supply of documents  to them.  In  light of this          admission, the district court aptly stated that "all these people          independently  would  not  have  produced  a  successful  .  .  .          enterprise unless somebody was organizing the whole. . . ."                                          17          1987), supervisory  control lacks decretory significance.   Here,          appellant acted as the very prototype of an organizer, serving as          a magnet to bring others together and thereby lend feasibility to          the  commission of the crime.  Hence, notwithstanding the lack of          any  proof   that  he  exercised  direct   supervision  over  his          confederates, his behavior satisfies the first prong of the test.                    2.  Scope.     The  test's  remaining   prong  is  also                    2.  Scope.                        _____          fulfilled.     In   the   first  place,   the  district   court's          determination  that the  criminal enterprise  was "extensive"  is          solidly anchored in the  record:  the breadth of  the activities,          whether  measured in  terms of  duration, number  of clients,  or          geographic reach,  argues persuasively to  this end.   See Dietz,                                                                 ___ _____          950 F.2d at 53 (emphasizing importance of "width, breadth, scope,          complexity,  and duration of  the scheme").   Since  the criminal          activity  must meet  either the  extensiveness or  the numerosity          benchmark,   not  necessarily   both,   a   founded  finding   of          extensiveness, in and of itself, is enough to engage the gears of          section 3B1.1(a)  even if  the commission  of the  crime depended          upon fewer than five participants.  See id.                                                ___ ___                    In  any event, the numerosity requirement is satisfied.          Although the district court did not name the  other participants,          that  omission  is not  fatal.    It is  not  necessary  that the          government prove the identities of the persons whom the organizer          organizes as long as  the record permits the sentencing  court to          make  "a  specific  finding,  based  on a  preponderance  of  the          evidence,   which  pinpoints   [the  participants]   with  enough                                          18          particularity  to  give  credence   to  the  upward  adjustment."          McDowell, 918  F.2d at 1011.  The court here made such a finding,          ________          and it is well supported.                    Taking its cue from the PSI Report, and relying heavily          on  appellant's boasts  to the  undercover agent,  the sentencing          court  listed no fewer than  ten persons who  participated in the          scheme.   Though  the inclusion of  some of these  persons may be          problematic,  a   goodly  number  clearly  qualify:     appellant          himself;9  the   individuals who  recruited passport  applicants;          the forger; the  person who retrieved  the bogus documents  after          they had been  used; and  the two immigration  inspectors in  the          Dominican  Republic,  to  name  a  few.    Since  the  number  of          criminally culpable  participants is at least  five, the district          court did not err in increasing appellant's offense level.          III.  CONCLUSION          III.  CONCLUSION                    We need go  no further.   For the  reasons stated,  the          defendant's conviction and sentence must be          Affirmed.          Affirmed.          ________                                        ____________________               9The  defendant himself can be counted  as a participant for          purposes  of the numerosity requirement. See Preakos, 907 F.2d at                                                   ___ _______          10.                                          19                                       APPENDIX                                       APPENDIX                             Approximate                             Approximate          Counts            Date of Offense                     Identity of          Counts            Date of Offense                     Identity of          ______            _______________                     ___________          Alien          Alien          _____          1, 11                9/20/93              Marisol Martinez, a/k/a          Lorraine Mercedes          2, 12                9/20/93               Zoila Cruz, a/k/a Lisa          Soto          3, 13, 16             10/3/93               John Doe, a/k/a Edwin          Ramirez Barreto          4, 17                10/8/93              Jose Eduardo Espinal          5, 18                10/8/93              John Doe, a/k/a Leoncio          Collado          6, 19                  10/16/93              John Doe, a/k/a Jose          Ramon Cruz, a/k/a                                                     Jose Ramon Cruz Nunez                                          7, 14, 20             10/21/93              Jane Doe, a/k/a Elena          Guerrero          8                        10/31/93                Fernando Antonio          Polanco, a/k/a Marco                                                               Antonio Vasquez Ramos          9, 21                 11/2/93               John Doe, a/k/a  Jose          Rodriguez Lopez, a/k/a                                                                                     20              Marcos Antonio Vasquez Ramos          10,  15, 22            11/6/93               John Doe, a/k/a Jose          Alberto Gonzalez,                                                    a/k/a    Jose   Alberto          Morales          Note:  counts 1-10 charge violations of 8 U.S.C.   1324(a)(1)(D);          counts  11-15 charge violations of  18 U.S.C.    1543; and counts          16-22 charge violations of 18 U.S.C.   201(b)(1)(C).                                          21
