                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
            ___________

            No. 03-3113
            ___________

United States of America,              *
                                       *
                    Appellee,          *
                                       *
      v.                               *
                                       *
James Thornton,                        *
                                       *
                    Appellant.         *
                                           Appeals from the United States
            __________                     District Court for the Southern
                                           District of Iowa.
            No. 03-3393
            __________

United States of America,              *
                                       *
                    Appellee,          *
                                       *
      v.                               *
                                       *
Herbert Thornton,                      *
                                       *
                    Appellant.         *
                                  ___________

                             Submitted: May 11, 2004

                                 Filed: May 17, 2004
                                  ___________
Before MURPHY and FAGG, Circuit Judges, and GOLDBERG,* Judge of the United
      States Court of International Trade.
                                   ___________

FAGG, Circuit Judge.

       After brothers James and Herbert Thornton sold cocaine base to an undercover
agent several times, the Government charged them with drug crimes. James pleaded
guilty to the conspiracy charge and agreed to cooperate against Herbert. At James’s
sentencing, the district court** denied his motion for a downward departure based on
his cooperation, found he was a career offender, and sentenced him to 262 months in
prison. Herbert stood trial and a jury convicted him of multiple counts. In this
consolidated appeal, James challenges his sentence and Herbert challenges his
conviction.

       James argues the district court should have held a hearing on whether the
Government acted in bad faith in refusing to make a motion for a downward departure
based on his cooperation. James’s plea agreement stated the Government, in its sole
discretion, might file a motion requesting a departure if the Government concluded
James provided substantial assistance in the investigation or prosecution of other
criminals. Because the Government expressly reserved its discretion to file the
motion, we perform only a limited review. United States v. Hardy, 325 F.3d 994, 995
(8th Cir. 2003). To challenge the Government’s refusal, James had to make a
substantial threshold showing of prosecutorial discrimination, irrational conduct, or
bad faith. Id. If James did not make this threshold showing, he was not entitled to
an evidentiary hearing. Id.


      *
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
      **
       The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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       We agree with the district court that James did not make a substantial threshold
showing of bad faith by the Government. James submitted no evidence of a punitive
intent. See United States v. Wolf, 270 F.3d 1188, 1190-91 (8th Cir. 2001). Unlike the
situation in United States v. Rounsavall, 128 F.3d 665, 668-69 (8th Cir. 1997), James
did not testify against his brother and James’s plea agreement did not specify what
was required to earn a Government motion. Further, the Government had good
reasons for not using James as a witness. The Government’s decision not to use
James’s testimony at trial was partially tactical, but primarily based on the fact his
testimony was unnecessary given the strength of the case against Herbert. Because
James failed to make the necessary threshold showing of bad faith on the part of the
Government, the district court did not abuse its discretion in denying his request for
an evidentiary hearing.

       James also asserts the district court erroneously found he was a career offender
U.S.S.G. § 4B1.1(a). A defendant is a career offender under § 4B1.1(a) if, among
other things, the defendant has at least two earlier felony convictions of either a crime
of violence or a controlled substance offense. “Crime of violence” means any federal
or state offense punishable by imprisonment for a term exceeding one year that “(1)
has as an element the use, attempted use, or threatened use of physical force” against
another person, or “(2) is burglary of a dwelling . . . or otherwise involves conduct
that presents a serious potential risk of injury to another.” U.S.S.G. § 4B1.2(a). An
earlier felony conviction means an earlier adult federal or state conviction for an
offense punishable by imprisonment for a term exceeding one year, regardless of
whether the offense is specifically designated as a felony and regardless of the actual
sentence imposed. Id. n.1.

      The district court found James had two earlier convictions for crimes of
violence: a 1991 conviction and a 1986 conviction. James admits he conceded at
sentencing the 1986 conviction was a crime of violence, so we decline to consider his
belated arguments regarding that conviction. As for the 1991 conviction, James

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contends he was convicted of first-degree theft rather than robbery, and because the
elements of theft do not include the use of force against another person, see Iowa
Code § 714.2(1), it was not a crime of violence within the meaning of the guideline.
At the sentencing hearing, the Government submitted certified copies of paperwork
related to the 1991 conviction. The Government noted:
       the complaint and affidavit for the robbery second charged notes in the
       affidavit portion that Mr. Thornton did commit robbery in the second-
       degree against another when he grabbed the victim by the throat and
       took the victim’s wallet from the victim’s pants. The trial information
       says that Mr. Thornton did, with intent to commit a theft, assault Calvin
       Brown and take from his person a wallet containing five dollars cash,
       driver’s license, and other personal items, in violation of section 711.3
       The trial information does charge Mr. Thornton with robbery second
       degree, and 711.3 is the code section for robbery under the Iowa Code.

The district court admitted the exhibits, with no objection from the defense. James
now points out that although the underlying complaint and affidavit indicate he was
charged with robbery, the presentence report shows the conviction as first-degree
theft, with a citation to the code section for robbery, Iowa Code § 711.3.

       A robbery conviction clearly constitutes a crime of violence under U.S.S.G. §
4B1.2 n.1. Even if the offense described in the presentence report was ultimately
pleaded down to first-degree theft, however, the district court correctly counted the
conviction as a crime of violence because of the underlying factual scenario– conduct
presenting a serious potential risk of physical injury to another. See U.S.S.G. §
4B1.2(a)(2); United States v. Johnson, 326 F.3d 934, 936-37 (8th Cir. 2003) (theft
from a person is a crime of violence within meaning of U.S.S.G. § 4B1.2(a); United
States v. Newton, 259 F.3d 964, 968 (8th Cir. 2001) (examining uncontested facts to
decide that conviction was for crime of violence for purpose of § 4B1.2(a)(2)).
Because the 1991 offense was a crime of violence, the district court correctly decided
James was a career offender under § 4B1.1.



                                         -4-
       Herbert contends only that the evidence was insufficient to convict him.
Viewing the evidence in the light most favorable to the verdict, we conclude a
reasonable jury could find Herbert guilty beyond a reasonable doubt. United States
v. Espino, 317 F.3d 788, 792 (8th Cir. 2003). First, the evidence showed Herbert
conspired with James to distribute cocaine base. Herbert argues his mere association
with James is insufficient to establish a conspiracy. The evidence shows, however,
that Herbert played a direct and often controlling role in the conspiracy. Regarding
his conviction for distribution of cocaine base, Herbert contends the Government
failed to show he knowingly sold the drug. The evidence showed Herbert was
familiar with cocaine base as a user, and he knew the bag he gave to the undercover
officer contained cocaine base because the bag was clear. As for his conviction for
attempting to distribute cocaine base, Thornton argues he abandoned the attempt. A
reasonable jury could conclude, however, that Herbert simply tried to relocate the
transaction for completion elsewhere and was arrested before the relocation. With
respect to his conviction for possession with intent to distribute cocaine base,
Thornton contends he was guilty of mere physical proximity to the drug. Evidence
of Thornton’s role, conduct, and comments at the time showed his constructive
possession of the crack cocaine, knowledge and ownership, dominion or control, and
intent to distribute.

      We thus affirm James Thornton’s sentence and Herbert Thornton’s conviction.
                      ______________________________




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