

                  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
