                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1843
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Curtis R. Brye, Jr.,                     *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: December 29, 2003

                                   Filed: January 5, 2004
                                    ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Curtis R. Brye, Jr., pleaded guilty to conspiring to distribute and possess with
intent to distribute cocaine base, in violation of 21 U.S.C. § 846; and a related
forfeiture count. The district court1 sentenced him to 168 months imprisonment and
5 years supervised release, and he appeals.




      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
      Mr. Brye argues that the government’s refusal to seek a substantial-assistance
downward departure was irrational, arbitrary, and in bad faith; his guilty plea was
involuntary, unknowing, and unintelligent because it was induced by the
government’s promise to seek a departure; the sentence was cruel, unusual, and
excessive; there was no real evidence to establish the drug quantity attributed to Mr.
Brye; his criminal history was overstated; and the court failed to state its reasons for
the sentence.

       After careful review of the record, we conclude that the district court did not
err in refusing to compel the government to file a substantial-assistance departure
motion as Mr. Brye has not shown the government’s refusal was unconstitutionally
motivated or irrational. See Wade v. United States, 504 U.S. 181, 186 (1992). We
also conclude that the district court did not otherwise err in sentencing Mr. Brye: his
involuntary-plea argument is not supported by the facts; his sentence was within the
applicable Guidelines range, see United States v. Foote, 920 F.3d 1395, 1401 (8th
Cir. 1990), cert. denied, 500 U.S. 946 (1991); the court’s drug-quantity determination
was based on stipulations in the plea agreement, see United States v. Nguyen, 46 F.3d
781, 783 (8th Cir. 1995); and the criminal history calculation rested on unobjected-to
convictions listed in the presentence report, see United States v. Beatty, 9 F.3d 686,
690 (8th Cir. 1993). Finally, even assuming the district court failed to state its
reasons for the sentence, we conclude this omission was harmless as the record
supports that the court considered the relevant factors in selecting a sentence at the
bottom of the applicable Guidelines range. See Fed. R. Crim. P. 52(a) (any error,
defect, irregularity, or variance that does not affect substantial rights must be
disregarded).

      Accordingly, we affirm.
                     ______________________________




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