                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               MAR 13 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                No. 97-6022
                                                           (W.D. Okla.)
 ALFREDO VEGA,                                       (D. Ct. No. CR-96-115-L)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BRORBY, and EBEL, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

                                       Background

      The defendant, Alfredo Vega, was arrested for participating in a drug

operation that included his two brothers, Hector Vega and Pedro Vega, and a


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
number of others. The Vega brothers, who sometimes acted alone and other times

acted jointly, were links in a loose-knit organization of marijuana dealers. They

often sold marijuana to a man named Richard Jarvis in Oklahoma City. They also

would arrange to transport the drugs to Mr. Jarvis.

      After his arrest, the defendant pleaded guilty to two counts of a forty-three

count indictment. The presentence report recommended that, under section

3B1.1(a) of the Sentencing Guidelines, the district court impose a four-level

enhancement to Mr. Vega’s sentence. Under that subsection, a court must impose

a four-level enhancement if the defendant was “an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a) (1997). At the sentencing hearing and in a

written opinion that followed, the district court found that the evidence did not

warrant the four-level enhancement under section 3B1.1(a). Instead, the court

enhanced the defendant’s offense level by two levels for his being a manager of

criminal activity under section 3B1.1(c). The defendant appeals on two different

grounds: (1) that the district court’s factual findings are clearly erroneous, and (2)

that the facts, as found by the district court, do not support an enhancement under

section 3B1.1(c). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.




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                                     Discussion

      The defendant first argues that the factual findings of the district court are

in error. We will overturn a district court’s findings of fact only if they are

clearly erroneous. See United States v. Farnsworth, 92 F.3d 1001, 1009 (10th

Cir.), cert. denied, 117 S. Ct. 596 (1996). We will uphold them unless they are

unsupported by the record or, after reviewing the record, “we are left with the

definite and firm conviction that a mistake has been made.” United States v.

Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990) (citations and internal quotation

marks omitted).

      The district court imposed its two-level enhancement under section

3B1.1(c). That provision instructs: “If the defendant was an organizer, leader,

manager, or supervisor in any criminal activity other than described in (a) or (b),

increase by two levels.” The district court based the enhancement on the

following facts:

      The evidence establishes that defendant exercised management
      responsibility over the money involved in the transactions.
      The funds for transportation expenses were wire-transferred to
      defendant, who then distributed the funds to the individuals
      who transported the contraband. This is a sufficient exercise
      of managerial activity to impose the two-level enhancement.

 United States v. Vega, No. 96-115-L, slip. op. at 3 (W.D. Okla. Dec. 11,

 1996). There is substantial support for these findings in the testimony of

 Robert Ryan, a police officer from Norman, Oklahoma, who was the only

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person to testify at the sentencing hearing. Officer Ryan learned about the

defendant’s criminal activity during an assignment to the Drug Enforcement

Administration as a task force officer. Officer Ryan testified that Mr. Jarvis

purchased marijuana from the defendant through money wires. In his wires,

Jarvis would include money to cover the expense of transporting the marijuana

to Oklahoma City. Upon receiving Jarvis’s money, the defendant would pay a

man named Ken Moore to deliver the marijuana to Jarvis. According to the

testimony, Mr. Moore was under the impression that he was working for the

defendant.

      The defendant makes much of the fact that there was no evidence that

Alfredo Vega held a position of authority over his two brothers or that he was

the “boss” of the organization. As the excerpt from the district court opinion

makes clear, however, the district court did not rely on any findings about the

relationship among the brothers, or about Alfredo’s position in the larger

criminal organization, in imposing the enhancement. In fact, the court

explicitly refrained from making those factual findings earlier in the opinion.

The district court relied only on the fact that the defendant paid Mr. Moore to

deliver marijuana to Oklahoma City. In light of Officer Ryan’s testimony, the

district court’s findings are not clearly erroneous.

      Next, the defendant argues that the facts found by the district court


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cannot support a conclusion that he was a “manager” under section 3B1.1(c).

Thus, the defendant’s second challenge presents a question of how the

statutory standard applies to the facts of the case—a mixed question of law

and fact. See Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986). Congress

has dictated the standard of review for such questions in the sentencing

context. The relevant statute states that appellate courts “shall give due

deference to the district court’s application of the guidelines to the facts.” 18

U.S.C. § 3742(e). This “due deference” standard parallels our standard of

review for mixed questions of law and fact in other contexts. See United

States v. Roberts, 898 F.2d 1465, 1468 & n.2 (10th Cir. 1990). We have

described that standard as follows:

     Where the mixed question involves primarily a factual inquiry,
     the clearly erroneous standard is appropriate. If, however, the
     mixed question primarily involves the consideration of legal
     principles, then a de novo review by the appellate court is
     appropriate.

Id. at 1468 (quoting Ricketts, 792 F.2d at 961).

      The defendant’s first point of argument is primarily a legal one, and thus

we review the question de novo. The defendant contends that the district court

erred because possession of money alone is not enough to support an

enhancement for management of criminal activity. Rather, one must exercise

control over another person in order to “manage” criminal activity under


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section 3B1.1(c). The defendant is correct on this point. See United States v.

Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995) (finding that management of

assets is not enough to support an enhancement under section 3B1.1(c));

United States v. Katora, 981 F.2d 1398, 1404 (3d Cir. 1992) (same); United

States v. Giraldo, 111 F.3d 21, 24 (5th Cir.) (same), cert. denied, 118 S. Ct.

322 (1997).

      The defendant assumes that because management of money alone is

insufficient, and because the district court relied on the defendant’s

management of the money in imposing the enhancement, the district court

erred. We disagree. While it is true that the mere possession of money is

insufficient to support an enhancement for being a manager under section

3B1.1(c), it is equally true that one’s control over the cash flow of a criminal

enterprise is usually indicative of at least some authority over others in the

organization.

      The district court did not base the enhancement solely on the fact that

Jarvis wired money to the defendant. Only an overly restrictive reading of the

court’s opinion would lead to that conclusion. In determining that the

defendant had a managerial role, the court emphasized that Jarvis wired the

money to the defendant, “who then distributed the funds to the individuals who

transported the contraband.” Vega, slip. op. at 3 (emphasis added).


                                        -6-
Applying the most reasonable interpretation of the court’s language, the court

imposed the enhancement not simply because the defendant held the money,

but rather because his possession of the money gave him control over

distributors such as Ken Moore. Thus, although the defendant correctly

identified a limit on the reach of section 3B1.1(c), the district court did not

exceed it.

      That does not entirely dispose of the defendant’s appeal, however. We

must still consider whether the degree of control that Mr. Vega exercised over

Mr. Moore qualifies as “management” under section 3B1.1(c). Unlike the

legal question just discussed, this determination primarily involves a factual

inquiry because it hinges largely on how much control the defendant had over

Mr. Moore’s activities. Therefore, on this particular question, we defer to the

district court’s decision unless it was clearly erroneous. See Ricketts, 792

F.2d at 961.

      Our cases have interpreted section 3B1.1(c) liberally. A court may

enhance a sentence under section 3B1.1(c) “upon a showing that the defendant

exercised any degree of direction or control over someone subordinate to him

in the distribution scheme.” United States v. Backas, 901 F.2d 1528, 1530

(10th Cir. 1990). According to the testimony at the sentencing hearing, Mr.

Vega regularly paid Mr. Moore to drive marijuana to Oklahoma City. Mr.


                                        -7-
Moore made his trips at the direction of Mr. Vega, and Mr. Moore understood

himself to be in the employ of Mr. Vega. See Sent. Hr’g at 29 (“[T]here were

times when Alfredo Vega may have supervised or gave direction to one person

during one drug transaction . . . .”) (statement of defendant’s counsel). This

testimony provides adequate support for the district court’s conclusion. The

court’s finding is not clearly erroneous.

                                   Conclusion

         For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




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