                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-4096
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Anthony C. Barrett,                      * Western District of Missouri.
                                         *
             Appellant.                  *
                                    ___________

                          Submitted: November 18, 1998
                              Filed: April 13, 1999
                                   ___________

Before LOKEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                    ___________

LOKEN, Circuit Judge.

       Anthony C. Barrett pleaded guilty to conspiring with members of his family
and others to distribute cocaine base and other illegal drugs in violation of 21 U.S.C.
§ 846. At sentencing, over Barrett’s objections, the district court1 imposed upward
Guidelines adjustments based upon findings that Barrett was a supervisor or manager
in the conspiracy and possessed a firearm. The court declined to depart downward
based upon Barrett’s cooperation because the government made no substantial

      1
       The HONORABLE FERNANDO J. GAITAN, JR., United States District
Judge for the Western District of Missouri.
assistance motion. The court sentenced Barrett to 360 months in prison, the bottom
of his Guidelines range. He appeals that sentence. We affirm.

      I. Role in the Offense Adjustment. The Guidelines authorize a three-level
increase, “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.” U.S.S.G. § 3B1.1(b). We review the district court’s determination to
impose that adjustment for clear error. See United States v. Ayers, 138 F.3d 360,
363-64 (8th Cir.), cert. denied, 119 S. Ct. 219 (1998).

       At sentencing, whether the conspiracy included five or more participants was
not a disputed issue. Barrett did not object to paragraphs in his presentence report
identifying more than five participants. In addition, at the sentencing hearing, the
government read into the record testimony from the trial of Barrett’s co-defendants
that identified more than five participants. Barrett did not object to this testimony,
and its admission was not plain error. See United States v. Parker, 989 F.2d 948,
951-52 (8th Cir.), cert. denied, 510 U.S. 849 (1993).

       While not disputing the conspiracy had many participants, Barrett did contest
whether he had managed or supervised other participants. At the sentencing hearing,
an FBI Special Agent testified that Barrett controlled his sister, Sonja Barrett, and
Clarence Brooks when they assisted Barrett in the distribution of Endo, a high priced
form of marijuana. Barrett testified in rebuttal, denying any connection with Brooks
but admitting he gave Sonja drugs and “supervised or assisted” her in selling drugs.
To warrant a § 3B1.1(b) increase, a defendant need only have managed or supervised
at least one other participant. See U.S.S.G. § 3B1.1, comment n.2; United States v.
Pena, 67 F.3d 153, 156-57 (8th Cir. 1995). The evidence at the sentencing hearing
was sufficient to support the district court’s finding that Barrett exercised enough
control over at least one other conspirator to warrant the three-level increase.



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Compare Ayers, 138 F.3d at 364, with United States v. Del Toro-Aguilera, 138 F.3d
340, 342-43 (8th Cir. 1998).

       II. Downward Departure for Substantial Assistance. The plea agreement
recited that Barrett would “provide full and complete cooperation,” that he had not
yet provided substantial assistance, and that the government would make a downward
departure motion under U.S.S.G. § 5K1.1 if it determined, in its sole discretion, that
Barrett provided substantial assistance. At sentencing, the government declined to
make that motion, and the district court denied Barrett’s request to depart downward
because of his allegedly full cooperation. When a plea agreement preserves the
government’s discretion in this regard, “the court is without authority to grant a
downward departure for substantial assistance absent a government motion.” United
States v. Kelly, 18 F.3d 612, 617 (8th Cir. 1994). The government’s decision not
to make that motion is reviewable only if the defendant makes a “substantial
threshold showing” of improper motive. Wade v. United States, 504 U.S. 181, 186
(1992); see United States v. Romsey, 975 F.2d 556, 557-58 (8th Cir. 1992). Barrett
has made no such showing; he simply disagrees with the government’s assessment
of his truthfulness and the extent to which his cooperation assisted the government.

       III. Other Adjustments. Barrett also objected to the district court’s drug
quantity determination and its decision to impose a two-level increase under U.S.S.G.
§ 2D1.1(b)(1) because he possessed one or more firearms. In the plea agreement,
Barrett stipulated the conspiracy involved over 1.5 kilograms of cocaine base, the
quantity used by the district court to determine his base offense level, and he agreed
that he would be subject to the two-level enhancement under § 2D1.1(b)(1). A
defendant may not challenge an application of the Guidelines to which he agreed in
a plea agreement (unless he proves the agreement invalid or succeeds in withdrawing
from it). See United States v. Early, 77 F.3d 242, 244 (8th Cir. 1996). Moreover,
there was testimony at the sentencing hearing supporting the drug quantity


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determination and a finding that Barrett possessed a firearm. Thus, the district court’s
determinations were not clearly erroneous.

      IV. Conclusion. Before we requested oral argument, Barrett’s appellate
counsel submitted his brief pursuant to Anders v. California, 386 U.S. 738 (1967).
Accordingly, we have reviewed the entire record in the manner prescribed in Penson
v. Ohio, 488 U.S. 75, 80 (1988). Finding no nonfrivolous issues other than those we
have resolved in this opinion, we affirm the judgment of the district court and grant
counsel&s motion to withdraw.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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