                                    ____________

                                     No. 95-1315
                                    ____________


United States of America,                 *
                                          *
                     Appellee,            *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Arkansas
Karl Edward Nicolace,                     *
                                          *
                     Appellant.           *

                                    ____________

                       Submitted:    November 14, 1995

                           Filed:     July 9, 1996
                                    ____________

Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


      Karl E. Nicolace appeals from a final judgment entered in the United
States District Court1 for the Western District of Missouri, after he pled
guilty to aiding and abetting an attempt to possess with the intent to
distribute cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.                  The
district court sentenced Nicolace under the federal sentencing guidelines
to 188 months imprisonment, eight years supervised release and a special
assessment of $ 50.00.     For reversal, Nicolace argues that the district
court erred in (1) considering a conviction that had been “set aside”
pursuant to the Federal Youth Corrections Act (FYCA) in calculating his
criminal   history   category;    (2)    finding      a    drug    conspiracy    to   be   a
“controlled   substance   offense”      under   the       career   offender     sentencing
guidelines; and (3) finding he had failed to make a threshold




     1
      The Honorable D. Brook Bartlett, Chief Judge, United States
District Court for the Western District of Missouri.
showing that the government acted irrationally or in bad faith in refusing
to file a motion for downward departure for substantial assistance.                       For
the reasons discussed below, we affirm the judgment of the district court.



                                       Background


        In 1981 Nicolace was convicted of conspiracy to distribute cocaine
in the United States District Court for the District of Kansas.                     He was
sentenced pursuant to FYCA, 18 U.S.C. § 5010(b), and was subsequently
paroled in 1982.       His conviction was set aside pursuant to 18 U.S.C. §
5021.    In 1991 Nicolace was convicted of two counts of distribution of
cocaine in the United States District Court for the District of Kansas.
Following an extended period of cooperation with the authorities, Nicolace
was sentenced to six months imprisonment and three years supervised
release.    He was placed on supervised release in October 1992.


        On May 13, 1993, Nicolace drove to the Marriott Airport Hotel in
Kansas     City,   Missouri,     and   bought   two   kilograms         of    cocaine     for
approximately $42,000 from an FBI confidential informant.                    Two additional
kilograms were “fronted” or provided on consignment to Nicolace.                  Nicolace
was    arrested    immediately   and   transported    to    a   local    hospital       after
experiencing an anxiety attack.        Shortly thereafter, David Jones, a person
who had been assisting Nicolace, was also arrested in the Marriott parking
lot.


        After his release from the hospital, Nicolace was questioned by the
FBI and indicated his willingness to cooperate.            However, the FBI began to
doubt Nicolace’s candor after several months of meetings with Nicolace had
yielded no beneficial results.




                                          -2-
      On June 8, 1993, Nicolace and Jones2 were indicted and charged with
one count of attempted possession with intent to distribute cocaine in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.        Thereafter, Nicolace’s
brother, Paul Nicolace, approached the FBI and offered to cooperate with
the authorities in order to assist his brother.    Paul Nicolace was at that
time on probation on state drug charges.   The FBI told Paul Nicolace that
it could not direct him as an informant but that it would accept any
information he might voluntarily provide.         The FBI also doubted Paul
Nicolace’s candor, and the information he provided yielded no results.     In
August 1993, the FBI told Paul Nicolace that neither it nor the U.S.
Attorney’s Office was interested in his cooperation.    On November 23, 1993,
Nicolace pled guilty pursuant to a written plea agreement.          The plea
agreement did not contain any provisions regarding cooperation with the
government or the possible filing of a motion for downward departure based
on substantial assistance.


      The district court held three sentencing hearings for Nicolace.      At
the first sentencing hearing on February 18, 1994, the district court found
that Nicolace was a career offender, after rejecting Nicolace’s argument
that his set-aside FYCA conviction for conspiracy to distribute cocaine
should not be counted for purposes of career offender status.    In addition,
at this hearing Nicolace raised the issue of whether the government had
acted unreasonably in refusing to file a motion for downward departure on
the basis of substantial assistance.     The government argued that it had
refused Nicolace’s offer of cooperation and that Nicolace had provided no
substantial assistance.


      At the second sentencing hearing on April 22, 1994, the district
court held that it had the authority to review the government’s refusal to
move for downward departure for substantial




      2
       Jones subsequently entered into a plea agreement with the
government.

                                   -3-
assistance if the refusal was based on an unconstitutional motive or a
reason not rationally related to any legitimate end.


      On September 21, 1994, an Addendum to the Presentence Report was
filed by the U.S. Probation Officer.     The Probation Officer noted that a
proposed amendment to the U.S.S.G. § 4B1.1 application note would make
Nicolace eligible for a sentencing range of 188 to 235 months, rather than
262 to 327 months.3   The amendment became effective on November 1, 1994.


      At the final sentencing hearing on January 18, 1995, the district
court found that the government had not acted irrationally in refusing to
file a motion for downward departure for substantial assistance.       The
district court sentenced Nicolace to 188 months imprisonment, eight years
supervised release and a special assessment of $50.00.         This appeal
followed.


                                Discussion


                                    I.


      For reversal, Nicolace first argues that the district court erred in
using a prior federal narcotics conviction which had been set aside
pursuant to FYCA, 18 U.S.C. § 5021 (repealed 1984),4 in


         3
       The proposed amendment defined the term “offense statutory
maximum” as the “maximum term of imprisonment authorized for the
offense of conviction that is a crime of violence or controlled
substance offense, not including any increased in the maximum term
under a sentencing enhancement provision that applies because of
the defendant’s prior criminal record.” U.S.S.G.
§ 4B1.1, comment. (n.2).
     4
      18 U.S.C. § 5021 provided:

           (a) Upon the unconditional discharge by
           the commission of a committed youth
           offender before the expiration of the
           maximum sentence imposed upon him, the
           conviction shall be
automatically set aside and the Commission shall issue to the youth

                                   -4-
calculating his criminal history category.   He contends that the term “set
aside” is synonymous with the term “expungement” and that his prior
conviction should therefore not have been considered by the district court.
We disagree.


      The instructions and definitions for computing a defendant’s criminal
history score are set forth in U.S.S.G. § 4A1.2.     “Expunged” convictions
are not counted.   U.S.S.G. § 4A1.2(j).    Convictions which have been “set
aside,” however, are included in calculating the criminal history score.
U.S.S.G. § 4A1.2, commentary, application note 10.


            A number of jurisdictions have various
            procedures pursuant to which previous
            convictions may be set aside or the
            defendant may be pardoned for reasons
            unrelated to innocence or errors of law,
            e.g., in order to restore civil rights or to
            remove the stigma associated with a criminal
            conviction. Sentences resulting from such
            convictions are to be counted.      However,
            expunged convictions are not counted.

The FYCA was enacted to encourage a youth’s evolution into productive
citizenship by providing youthful offenders with a “fresh start.”   Doe v.
Webster, 606 F.2d 1226, 1234 (D.C. Cir. 1979) (FYCA was intended to give
youthful offenders “an opportunity




offender a certificate to that effect.

            (b) Where the youth offender has been
            placed on probation by the Court, the
            court    may,    in    its    discretion
            unconditionally discharge such youth
            offender from probation prior to the
            expiration of the maximum period of
            probation theretofore fixed by the court
            which discharge shall automatically set
            aside the conviction, and the court
            shall issue to the youth offender a
            certificate to that effect.

18 U.S.C. § 5021.

                                     -5-
to clean their slates to afford them a second chance, in terms of both jobs
and standing in the community”).       Convictions set aside for this reason
should be included when calculating criminal history.           U.S.S.G. § 4A1.2;
see also United States v. McDonald, 991 F.2d 866, 872 (D.C. Cir. 1993)
(juvenile conviction that had been set aside under District of Columbia
Youth Rehabilitation Act should be counted in defendant’s criminal history,
because if a juvenile offender turns into a recidivist, “[s]ociety’s
stronger interest is in punishing an unrepentant criminal”).


      Therefore,   we   hold   that   the    district   court   properly   included
Nicolace’s prior federal narcotics conviction, which had been “set aside”
pursuant to 18 U.S.C. § 5021, in the calculation of his criminal history
category.


                                       II.


      Nicolace next argues that the prior conviction set aside under FYCA
should not have been counted towards his career offender status because
that conviction was for conspiracy.     He argues that drug conspiracy is not
one of the predicate offenses listed in U.S.S.G. § 4B1.1, the career
offender guideline.5


      Nicolace’s contentions are without merit, in light of this court’s
recent en banc decision in United States v. Mendoza-Figueroa, 65 F.3d 691,
692-94 (8th Cir. 1995) (en banc) (Mendoza



     5
      U.S.S.G. § 4B1.1 provides:

            A defendant is a career offender if (1)
            the defendant was at least eighteen
            years old at the time of the instant
            offense, (2) the instant offense of
            conviction is a felony that is either a
            crime of violence or a controlled
            substance offense, and (3) the defendant
            has   at   least   two    prior   felony
            convictions of either a crime of
            violence or a controlled substance
            offense.

                                       -6-
Figueroa II), cert. denied, 116 S. Ct. 939 (1996), holding that the
sentencing commission had not exceeded its statutory authority by including
drug conspiracy offenses in its definition of predicate offenses for career
offender status under U.S.S.G. § 4B1.1.                 See United States v. Mendoza-
Figueroa I, 28 F.3d 766, 766-68 (8th Cir. 1994) (following United States
v. Price, 990 F.2d 1367, 1369-70 (D.C. Cir. 1993) (Price)).                    We therefore
hold that the district court properly included Nicolace’s drug conspiracy
in determining his career offender status.


                                           III.


        Finally, Nicolace challenges the district court’s finding that he
failed    to   make    a   threshold     showing    that    the   government     had   acted
irrationally or in bad faith in refusing to file a motion for downward
departure for substantial assistance.              The government’s refusal to file a
substantial-assistance motion is reviewable only when the defendant makes
a substantial threshold showing that the refusal was irrational or based
on an unconstitutional motive.         Wade v. United States, 504 U.S. 181, 185-87
(1992).     In the present case, the district court concluded that Nicolace
had failed to make such a showing and therefore declined to review the
government’s decision.         See I Sentencing Trans. 81-82.              We agree that
Nicolace failed to meet his threshold burden of showing that the government
had    acted   irrationally    or   in    bad   faith    in    refusing   to   move    for a
substantial-assistance downward departure.              We note that the FBI questioned
Nicolace’s candor during its discussions with Nicolace following his May
1993   arrest.        Although Nicolace had identified two persons as drug
traffickers, he was unable to contact either individual, and nothing
developed from the information he provided.                   Similarly, the information
Paul Nicolace gave the government in an attempt to help his brother had
also proven to be of little use.          Therefore, in August 1993, the government
filed a notice to enhance punishment and informed Paul Nicolace that it was
not interested in pursuing his cooperation.                In addition, Nicolace’s plea
agreement




                                            -7-
did not contain any provisions regarding cooperation with the government
or the possible filing of a substantial assistance motion.


      Therefore, we hold that the district court did not err in finding
that Nicolace had failed to make a substantial threshold showing that the
government’s   refusal   to   file    a    motion   for   downward   departure   for
substantial assistance was irrational or based on an unconstitutional
motive.


                                     Conclusion


      We hold that the district court did not err in including Nicolace’s
prior conviction, which had been set aside pursuant to FYCA, in the
determination of his criminal history category and career offender status.
We further hold that the district court properly declined to review the
government’s refusal to file a substantial-assistance motion for downward
departure, because Nicolace had failed to show that the government had
acted irrationally or based upon an unconstitutional motive.          Accordingly,
the judgment of the district court is affirmed.


      A true copy.

            Attest:

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




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