                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 27 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-5143
                                                    (D.C. No. 98-CR-174-H)
    DONALD LEE HAYES, JR.,                                (N.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.



         Donald Lee Hayes, Jr. entered a guilty plea to conspiracy to possess

cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, and was

sentenced to 175 months in prison. He appeals his sentence, arguing that the

district court erred in adding a two-level enhancement to his base offense level



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
for playing a leadership or organizational role in a criminal enterprise. Exercising

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

         The United States Sentencing Guidelines provide for a two-level sentence

enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor

in any criminal activity.” U.S.S.G. § 3B1.1(c) (1998). A district court’s

conclusion on the applicability of § 3B1.1(c) is primarily a legal determination to

be reviewed de novo . United States v. Albers , 93 F.3d 1469, 1487 (10th Cir.

1996).

         The “adjustment is included primarily because of concerns about relative

responsibility.” U.S.S.G. § 3B1.1, cmt       . background. Thus, “‘ the gravamen of

this enhancement is control, organization, and responsibility for the actions of

other individuals .’” Albers , 93 F.3d at 1488 (quoting     United States v. Torres , 53

F.3d 1129, 1142 (10th Cir. 1995))    . “[T]o be a supervisor, one needs merely to

give some form of direction or supervision to someone subordinate in the criminal

activity for which the sentence is given.”      United States v. Backas , 901 F.2d 1528,

1530 (10th Cir. 1990). Any degree of direction will satisfy the definition of

“supervision.”    United States v. Moore , 919 F.2d 1471, 1477 (10th Cir. 1990).

Moreover, a defendant may be punished as an organizer under § 3B1.1(c), without

supervisory control over others, for “devising a criminal scheme, providing the

wherewithal to accomplish the criminal objective, and coordinating and


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overseeing the implementation of the conspiracy.”         United States v.

Valdez-Arieta , 127 F.3d 1267, 1272 (10th Cir. 1997).

       In this case, Hayes argues that the sentencing record does not support

the district court’s conclusion that he was a leader or organizer. Testimony at the

sentencing hearing, however, established that Hayes was the individual who set or

negotiated the price of the drugs (III R. at 12, 14–15), directed their manufacture

(id. at 23), and managed the timing and method of delivery of the drugs (         id. at

7–8). As the trial court stated, the evidence indicated that co-defendant Mark

Johnson was “inherently subordinate” to Hayes, not a “coequal[] or equally

situated in a chain of [drug] transactions.” (     Id. at 52.)

       Upon our review of the record, we conclude that Hayes’ actions were those

of a leader, organizer, and supervisor. Thus, the district court appropriately

applied U.S.S.G. § 3B1.1(c) to enhance Hayes’ sentence. The judgment of the

United States District Court is    AFFIRMED .

                                                          Entered for the Court


                                                          Carlos F. Lucero
                                                          Circuit Judge




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