F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 30 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 97-6048 v. (W. District of Oklahoma) (D.C. No. 96-CR-109) GARRY WAYNE HAYS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, PORFILIO, and MURPHY, 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 cause is therefore ordered submitted without oral argument.
Appellant Garry Wayne Hays pleaded guilty in the United States District
Court for the Western District of Oklahoma to transportation of stolen vehicles in
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. interstate commerce in violation of 18 U.S.C. §§ 2, 2312. Hays was sentenced to
35 months imprisonment and three-years of supervised release, and was assessed
a $ 3,000.00 punitive fine and a $ 7,030.80 fine to cover the costs of supervision.
Hays’ sentence included an enhancement under § 3B1.1(c) of the United States
Sentencing Guidelines pursuant to the district court’s finding that Hays exercised
a leadership role in the crimes.
Hays presents two issues for appeal: (1) whether the district court erred by
concluding Hays exercised a leadership role in the crimes and by enhancing his
guideline sentence two levels accordingly; and (2) whether the district court erred
by imposing a fine to cover the costs of supervision, in light of Hays’ financial
circumstances. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and
affirms.
I. FACTUAL BACKGROUND
During the summer of 1995, Hays was involved in the transportation of a
stolen John Deere tractor from Oklahoma to Kansas. Hays was arrested and,
when in custody, cooperated with the Federal Bureau of Investigations (“FBI”) by
identifying other individuals who were involved with him in the theft and sale of
numerous pieces farm equipment, including a man named Russell Cormack.
Cormack was subsequently arrested and indicated that he had assisted Hays by
-2- driving him to various locations, and that he received gas money and $ 173.00
from Hays for this assistance. Hays made approximately $ 10,000 from the thefts.
The FBI special agent who investigated the farm equipment thefts indicated that
Hays was accompanied by only one of his associates in each theft. Hays would
pick up and drive the farm equipment to the sale location in Kansas, and the
associate would follow Hays in an automobile, or vice versa. The purchasers of
the stolen equipment indicated that they dealt with Hays and did not know any of
Hays’ associates. On one occasion, when Cormack went with Hays to a bar where
Hays was going to negotiate a sale, Cormack was told to stay in the car.
II. LEADERSHIP ROLE ENHANCEMENT
Section 3B1.1 provides,
Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
-3- Enhancement under subsection (c) is appropriate “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, 1529
(10th Cir. 1990). This court has clarified further,
Among the factors which a court may consider are the defendant’s exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a large 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 exercised over others.
United States v. Hanif, 1 F.3d 998, 1004 (10th Cir. 1993).
As justification for the two-level enhancement of Hays’ sentence pursuant
to subsection (c), the district court stated,
I find that [Hays] did, in fact, exercise leadership in this organization and had the organizational authority in this case. He did all of the negotiation of the various sales. He ran the organization. He identified, at least to one, Russell Cormack, the property to be stolen. I find that the various individuals . . . all assisted Mr. Hays. I further find that [Hays] received the lion’s share of the profit from this organization, that amount being some $ 10,000, while at least one other participant in that organization, Russell Cormack, received very minimal or nominal amounts.
Tr. at 17-18. Hays does not challenge the district court’s factual findings, but
argues that they do not support the district court’s conclusion that he exercised a
supervisory role among the various participants in the criminal activity. The
-4- conclusion that a defendant exercised a supervisory role in the criminal activity is
reviewed de novo. United States v. Albers, 93 F.3d 1469, 1487 (10th Cir. 1996).
We agree with the district court’s assessment of Hays’ leadership role
based upon the undisputed factual findings. The criminal activity involved
several individuals, yet Hays exclusively conducted the negotiation with buyers.
Hays kept most of the proceeds and paid only a minimal amount in exchange for
his assistant’s services. The appellee further points out the following evidence
adduced in the sentencing hearing: Hays told the FBI that the other individuals
assisted him; Hays participated in each theft and was accompanied by only one
other individuals each time, while none of the other individuals ever committed a
theft without Hays; Cormack was told by Hays what to do and where to go.
Based upon these factual circumstances, we conclude that the district court
correctly determined Hays played a leadership role under § 3B1.1(c). The two-
level enhancement was appropriate.
III. FINE TO COVER THE COSTS OF SUPERVISION
Section § 5E1.2(I) of the Sentencing Guidelines provides, “[S]ubject to the
provisions of subsection (f) herein, the court shall impose [a] . . . fine that is at
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 30 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 97-6048 v. (W. District of Oklahoma) (D.C. No. 96-CR-109) GARRY WAYNE HAYS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, PORFILIO, and MURPHY, 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 cause is therefore ordered submitted without oral argument.
Appellant Garry Wayne Hays pleaded guilty in the United States District
Court for the Western District of Oklahoma to transportation of stolen vehicles in
* 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. interstate commerce in violation of 18 U.S.C. §§ 2, 2312. Hays was sentenced to
35 months imprisonment and three-years of supervised release, and was assessed
a $ 3,000.00 punitive fine and a $ 7,030.80 fine to cover the costs of supervision.
Hays’ sentence included an enhancement under § 3B1.1(c) of the United States
Sentencing Guidelines pursuant to the district court’s finding that Hays exercised
a leadership role in the crimes.
Hays presents two issues for appeal: (1) whether the district court erred by
concluding Hays exercised a leadership role in the crimes and by enhancing his
guideline sentence two levels accordingly; and (2) whether the district court erred
by imposing a fine to cover the costs of supervision, in light of Hays’ financial
circumstances. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and
affirms.
I. FACTUAL BACKGROUND
During the summer of 1995, Hays was involved in the transportation of a
stolen John Deere tractor from Oklahoma to Kansas. Hays was arrested and,
when in custody, cooperated with the Federal Bureau of Investigations (“FBI”) by
identifying other individuals who were involved with him in the theft and sale of
numerous pieces farm equipment, including a man named Russell Cormack.
Cormack was subsequently arrested and indicated that he had assisted Hays by
-2- driving him to various locations, and that he received gas money and $ 173.00
from Hays for this assistance. Hays made approximately $ 10,000 from the thefts.
The FBI special agent who investigated the farm equipment thefts indicated that
Hays was accompanied by only one of his associates in each theft. Hays would
pick up and drive the farm equipment to the sale location in Kansas, and the
associate would follow Hays in an automobile, or vice versa. The purchasers of
the stolen equipment indicated that they dealt with Hays and did not know any of
Hays’ associates. On one occasion, when Cormack went with Hays to a bar where
Hays was going to negotiate a sale, Cormack was told to stay in the car.
II. LEADERSHIP ROLE ENHANCEMENT
Section 3B1.1 provides,
Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
-3- Enhancement under subsection (c) is appropriate “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, 1529
(10th Cir. 1990). This court has clarified further,
Among the factors which a court may consider are the defendant’s exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a large 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 exercised over others.
United States v. Hanif, 1 F.3d 998, 1004 (10th Cir. 1993).
As justification for the two-level enhancement of Hays’ sentence pursuant
to subsection (c), the district court stated,
I find that [Hays] did, in fact, exercise leadership in this organization and had the organizational authority in this case. He did all of the negotiation of the various sales. He ran the organization. He identified, at least to one, Russell Cormack, the property to be stolen. I find that the various individuals . . . all assisted Mr. Hays. I further find that [Hays] received the lion’s share of the profit from this organization, that amount being some $ 10,000, while at least one other participant in that organization, Russell Cormack, received very minimal or nominal amounts.
Tr. at 17-18. Hays does not challenge the district court’s factual findings, but
argues that they do not support the district court’s conclusion that he exercised a
supervisory role among the various participants in the criminal activity. The
-4- conclusion that a defendant exercised a supervisory role in the criminal activity is
reviewed de novo. United States v. Albers, 93 F.3d 1469, 1487 (10th Cir. 1996).
We agree with the district court’s assessment of Hays’ leadership role
based upon the undisputed factual findings. The criminal activity involved
several individuals, yet Hays exclusively conducted the negotiation with buyers.
Hays kept most of the proceeds and paid only a minimal amount in exchange for
his assistant’s services. The appellee further points out the following evidence
adduced in the sentencing hearing: Hays told the FBI that the other individuals
assisted him; Hays participated in each theft and was accompanied by only one
other individuals each time, while none of the other individuals ever committed a
theft without Hays; Cormack was told by Hays what to do and where to go.
Based upon these factual circumstances, we conclude that the district court
correctly determined Hays played a leadership role under § 3B1.1(c). The two-
level enhancement was appropriate.
III. FINE TO COVER THE COSTS OF SUPERVISION
Section § 5E1.2(I) of the Sentencing Guidelines provides, “[S]ubject to the
provisions of subsection (f) herein, the court shall impose [a] . . . fine that is at
least sufficient to pay the costs to the government of any . . . supervised release
ordered.” Subsection (f) reads,
-5- If the defendant establishes that (1) he is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fine required by the preceding provisions, or (2) imposition of a fine would unduly burden the defendant’s dependents, the court may impose a lesser fine or waive the fine.
Subsection (f) places the burden upon the defendant of establishing that he or she
is unable to pay a fine. See United States v. Klein, 93 F.3d 698, 705 (10th Cir.
1996). Hays failed to establish his inability to pay the punitive fine.
We review the court's imposition of a fine under an abuse of discretion
standard. See United States v. Meuli, 8 F.3d 1481, 1487 (10th Cir. 1993). While
the Presentencing Report reveals that Hays has no assets, owes child support, and
has outstanding debts to a former spouse and the federal government, it also
reveals that he has earned over $ 30,000 per year on at least one occasion and has
the ability to work after his release from prison. When reviewing for an abuse of
discretion, this court will not disturb a trial court’s decision unless we have a
definite and firm conviction that the court committed a clear error of judgment.
Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). Given this standard and
Hays’ proven ability to earn a significant income, this court determines that the
imposition of the $ 7,030.80 fine was not an abuse of discretion.
-6- Therefore, the judgment of the United States District Court for the Western
District of Oklahoma is AFFIRMED.
ENTERED FOR THE COURT,
Michael R. Murphy Circuit Judge
-7-