IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20494 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK ALBERT MALOOF,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-93-1 -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Mark Albert Maloof appeals the sentence he received after

his case was remanded for resentencing. He avers that the

district court erred in finding that he was a leader or organizer

of a criminal activity that involved more than five participants,

pursuant to U.S.S.G. § 3B1.1(a).

A defendant’s base offense level may be increased four

levels if he was an organizer or leader of a criminal activity

involving five or more participants. U.S.S.G. § 3B1.1(a). A

§ 3B1.1 adjustment is proper only if the defendant was an

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-20494 -2-

organizer, leader, manager, or supervisor “of at least one

other person who was criminally culpable in, though not

necessarily convicted for, the endeavor.” United States v. Gross,

(5th Cir. 1994); see U.S.S.G. § 3B1.1, comment.

(n.2). It is not necessary for the defendant to have personally

led all five participants in the criminal activity to warrant the

leadership adjustment; personally leading at least one

participant is sufficient. United States v. Okoli,

(5th Cir. 1994).

Maloof does not contest the district court’s factual

determination that the criminal activity involved at least five

criminally responsible participants and that he personally led

one of the participants. Rather, he avers that under U.S.S.G.

§ 3B1.1(a), the district court was required to find that he

organized or led at least five other participants.

Maloof concedes that his argument is foreclosed by this

court’s decision in Okoli but states that he wishes to preserve

the issue for possible en banc or Supreme Court review. Okoli is

binding on the panel considering this appeal. In re Dyke,

, 1441-42 (5th Cir. 1991).

Because the district court did not err in finding that

Maloof was a leader or organizer of a criminal activity that

involved five or more participants, this court declines to

address Maloof’s alternative argument that the district court

erred in finding that the criminal activity was “otherwise

extensive” when neither the district court nor the presentence

report put him on notice that the district court was No. 00-20494 -3-

contemplating an upward adjustment on that basis. The judgment

of the district court is affirmed.

AFFIRMED.