                      UNITED STATES COURT OF APPEALS
Filed 11/4/96
                             FOR THE TENTH CIRCUIT



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-8006
                                                      (D.C. No. 95-CR-72)
    DENISA WENTZ, aka Denisa Lobdell                       (D. Wyo.)
    Wentz, aka Denisa Lobdell, aka “Sis,”

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Defendant Denisa Wentz appeals the sentence imposed by the district court

following her plea of guilty to charges of transporting a minor for purposes of

illegal sexual activity and aiding and abetting in violation of 18 U.S.C. §§ 2423,

2. She was sentenced to thirty-six months’ imprisonment, three years’ supervised

release, 250 hours of community service, and a $50.00 special assessment.

      Ms. Wentz’ sentence was enhanced pursuant to U.S.S.G. § 3B1.1(c). Ms.

Wentz contests that enhancement on the basis that the district court had to

improperly consider the transported minor and other adults as participants in order

to find any grounds for the § 3B1.1(c) enhancement.

      We review the district court's findings of fact as to whether enhancement is

warranted under § 3B1.1 for clear error. United States v. Pelliere, 57 F.3d 936,

940 (10th Cir. 1995). We review the district court’s application of those facts to

the guidelines de novo. Id.

      U.S.S.G. § 3B1.1(c) provides for an increase of two levels for a defendant

who was “an organizer, leader, manager, or supervisor in any criminal activity”

other than that described in sections (a) or (b) which address activities consisting

of five or more participants or activities which were otherwise extensive. A

“participant” in a criminal activity is a "person who is criminally responsible for


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the commission of the offense, but need not have been convicted. A person who

is not criminally responsible for the commission of the offense . . . is not a

participant." Id. comment (n.1).

      Ms. Wentz asserts that she was the only possible participant unless the

victims are considered. She contends that under United States v. Jarrett, 956 F.2d

864, 868 (8th Cir. 1992), victims may not be considered participants unless “they

assisted in the unlawful transportation of others,” a fact not present here. We

need not resolve that issue. The district court found that two other individuals

who were not victims, including Ms. Wentz’ co-defendant who also pled guilty to

the crime, were participants. That finding is supported by the record and is not

clearly erroneous.

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

Wyoming is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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