214 F.3d 859 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Darryl Milquette, Lyle Rivard,   Stephen Putzlocker, and James Sherard,  Defendants-Appellants.Nos. 99-2115, 99-2134, 99-2237 & 99-3403
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 25, 2000
Decided June 2, 2000

Appeals from the United States District Court  for the Eastern District of Wisconsin.  No. 98-CR-193--Charles N. Clevert, Judge. [Copyrighted Material Omitted]
Before Bauer, Ripple, and Manion, Circuit Judges.
Bauer, Circuit Judge.


1
From early-1997 through  mid-1998, James Sherard was the leader of a  cocaine distribution network that supplied drugs  to the Green Bay, Wisconsin area. Working out of  Milwaukee, Wisconsin, Sherard obtained cocaine  and arranged for Lyle Rivard and Stephen  Putzlocker to transport the drugs from Milwaukee  to Green Bay. After the drugs arrived in Green  Bay, Darryl Milquette was in charge of packaging  and distributing the cocaine; Putzlocker helped  Milquette package and distribute the drugs. After  the drugs had been sold, Rivard and Putzlocker  returned to Milwaukee and delivered cash to  Sherard who gave them more cocaine to take back  to Green Bay.


2
Eventually, the law caught up with the drug  ring and a grand jury in the Eastern District of  Wisconsin returned an indictment charging  Sherard, Milquette, Rivard, and Putzlocker1  with conspiracy to distribute and possess with  intent to distribute cocaine in violation of 21  U.S.C. sec.sec. 841(a)(1) and 846 and 18 U.S.C.  sec. 2. All four pled guilty, but Sherard moved  to withdraw his plea. After a hearing, the  district court denied Sherard's motion. The  district court then sentenced Sherard to 374  months in prison, 60 months of supervised  release, and a $2000 fine. Sherard appeals the  denial of his motion to withdraw his guilty plea.


3
Rule 32(e) of the Federal Rules of Criminal  Procedure authorizes a district judge to permit  the withdrawal of a guilty plea "if the defendant  shows any fair and just reason." However, once a  district court has accepted a guilty plea, the  defendant does not have an unlimited right to  withdraw the plea; rather, the burden is on the  defendant to demonstrate a fair and just reason  for such withdrawal. United States v. Schilling,  142 F.3d 388, 398 (7th Cir. 1998). We review a  district court's denial of a motion to withdraw  a guilty plea for abuse of discretion. United  States v. Pike, 211, F.3d 385, 388 (7th Cir. May 1, 2000). In reviewing the  district court's decision, we will uphold factual  findings as to whether the defendant has  demonstrated a fair and just reason unless they  are clearly erroneous. United States v. LeDonne,  21 F.3d 1418, 1423 (7th Cir. 1994).


4
Sherard argues that the district court should  have permitted him to withdraw his plea for two  reasons. First, he claims that he was in a state  of panic when he entered his guilty plea. Sherard  contends that he pled guilty the day his trial  was scheduled to begin only because he had just  learned that all of his codefendants were going  to testify against him. According to Sherard,  "this information clouded his judgment" and  "overwhelmed" him. Sherard told the district  court that he was innocent of the crime, but that  since all of his codefendants were going to  testify against him, he was sure he would be  convicted "no matter what the truth was." As his  second reason for wanting to withdraw his guilty  plea, Sherard asserts that he did not fully  understand the prison sentence that he faced.  Sherard claims that he thought his plea agreement  would give him a sentence of ten years instead of  the more than thirty year sentence he received.


5
At the hearing on Sherard's motion to withdraw  his guilty plea, the district court inquired at  great length into the circumstances of Sherard's  guilty plea. Judge Clevert reviewed the  transcript of Sherard's change of plea hearing  and had substantial portions of the transcript  read into the record. When denying Sherard's  motion to withdraw his plea, the district court  stated:


6
I don't find anything, any fair or just reason on  this record to warrant vacating the plea.  [Sherard] has not, first of all, in listening to  the exchange and recalling what took place during  the course of the guilty plea hearing there is no  doubt in my mind that [Sherard] was clear  thinking at the time of the plea. The fact that your client did not blindly accept  the factual allegations of the U.S. Attorney and  went so far as to precisely talk about the dates  involved and what he did and what others did  underscores my conclusion that he was clear  thinking and that he was not in a state of panic.    I could search with a telescope and not find any  reasons in this case on this particular record.  I have not heard you say anything which would  allow me to conclude that Mr. Sherard did not  enter this guilty plea with full and complete  knowledge of what it was, what was charged, and  that he did not know whether or not he should  plead guilty or not guilty. On this record from  what he said he clearly acknowledged his  involvement in the conspiracy.


7
The district court found, as a matter of fact,  that Sherard was thinking clearly and was not in  a state of panic when he entered his guilty plea.  The district court based this factual finding on  its own recollection of Sherard's demeanor during  his change of plea hearing as well as the fact  that Sherard contested certain facts at the  hearing and provided very specific information  about the conspiracy. This factual determination  was not clearly erroneous; rather, based on the  record, this conclusion was entirely reasonable.  Since Sherard offered no credible factual support  for his argument that he panicked, the district  court did not abuse its discretion in rejecting  it.


8
Sherard's second argument for withdrawing his  plea, that he did not understand the sentence  that could be imposed, is also without factual  support. Contrary to Sherard's assertions, the  record shows that the district court advised him  of the maximum possible penalty at the change of  plea hearing. At that hearing, the district court  read the portions of the plea agreement which  related to sentencing. The district judge  specifically asked Sherard if he understood those  sections and Sherard said that he did. The trial  court further advised Sherard that his plea  agreement did not provide any guarantees as to  what his sentence would be and that much of his  final sentence rested within the discretion of  the United States Attorney's Office.


9
Moreover, at the hearing to withdraw the plea,  the district court and Sherard's attorney had the  following exchange:


10
SHERARD'S ATTORNEY:  It was clear in Mr.  Sherard's mind that somehow it was, it's his  recollection that he was fairly comfortable with  the fact that if he cooperated and provided the  information that the government wanted that his  sentence would be somewhere in the range of ten  years. I don't recall that portion of the  conversation and he feels that it was explicitly  stated.


11
When we got an opportunity to sit down after he  returned with an actual sentencing guideline and  he began to discuss his recollections of what was  taking place just prior to the time he entered  the plea agreement I didn't feel that those were  realistic expectations unless there was some new  information I wasn't aware of. And I realize that  for some reason his recollection was totally  different than mine and his understanding at the  time he entered into the plea agreement according  to what he's telling me is completely different  than what I felt we discussed.


12
THE COURT:  Is there something in the plea  agreement which you can specifically point to as  evidence that your client did not know the  maximum possible penalty in this case? SHERARD'S ATTORNEY:  No, Your Honor. I believe  the maximum possible penalty was well known by  the defendant prior--    At that point, Sherard interrupted and declared  that he never knew about the maximum possible  penalty, but, as we explained, the record clearly  contradicts this position. Because the factual  record shows that Sherard was advised of the  possible penalties in this case, the district  court did not abuse its discretion in denying his  motion to withdraw his plea agreement.


13
Darryl Milquette received a sentence of 110  months imprisonment, 60 months of supervised  release, and a $2000 fine. When calculating  Milquette's criminal history category under the  Guidelines, the district court included criminal  history points for two battery "citations" that  Milquette received from the Green Bay Municipal  Court. By including these two battery citations,  the trial court calculated Milquette's criminal  history to be III, which (when coupled with his  offense level) called for a sentencing range of  97 to 121 months imprisonment.


14
Milquette challenges the inclusion of the two  battery offenses. According to Milquette, if  these battery citations had been excluded, he  would have been sentenced with a criminal history  category of II which would have given him a  sentencing range of 87 to 108 months in prison.  We review the district court's ruling on this  issue de novo. United States v. Redding, 104 F.3d  96, 98 (7th Cir. 1996); United States v. Booker,  71 F.3d 685, 688 (7th Cir. 1995).


15
Section 4A1.2(c)(1) of the United States  Sentencing Guidelines governs whether a local  ordinance violation must be included in  calculating a defendant's criminal history  category. Although it generally prohibits  counting local ordinance violations, sec.  4A1.2(c)(1) actually requires courts to include  ordinance violations that are also criminal  offenses under state law. Id.; United States v.  Staples, 202 F.3d 992, 996 (7th Cir. 2000);  Redding, 104 F.3d at 99; see also United States  v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995)  ("local ordinance violations that are also  criminal offenses under state law are counted in  computing a defendant's criminal history  score."). Application Note 12 of the Guideline  confirms our interpretation of sec. 4A1.2 (c)(1)  and provides:


16
12.  Local Ordinance Violations.  A number of  local jurisdictions have enacted ordinances  covering certain offenses (e.g., larceny and  assault misdemeanors) that are also violations of  state criminal law. This enables a local court  (e.g., a municipal court) to exercise  jurisdiction over such offenses. Such offenses  are excluded from the definition of local  ordinance violations in sec. 4A1.2(c)(1) and,  therefore, sentences for such offenses are to be  treated as if the defendant had been convicted  under state law.


17
Here, Milquette was assigned criminal history  points for two separate acts of battery. In one  case, he hit a man in the back of the head with  a brick. In the other case, he punched an  unsuspecting man in the face. Both acts clearly  satisfy Wisconsin's state law requirements for  criminal battery. Therefore, because Milquette's  local ordinance citations were imposed for  conduct that also violated Wisconsin criminal  law, the district court properly counted these  offenses when calculating his criminal history  category.


18
Stephen Putzlocker received a sentence of 120  months imprisonment, 60 months supervised  release, and a $500 fine. Putzlocker's main  argument2 on appeal is that the district court  should have deducted two points from his offense  level under U.S.S.G. sec. 3B1.2(b) because he was  a "minor participant" in the drug distribution  conspiracy. Putzlocker contends that he qualifies  as a minor participant because he was a low-level  courier who acted at the direction of others,  received no share of the profits, and whose  involvement with the conspiracy only lasted five  months. We review the district court's conclusion  on this issue for clear error. United States v.  James, 113 F.3d 721, 731 (7th Cir. 1997).


19
Section 3B1.2(b) of the Guidelines directs  district courts to decrease a defendant's offense  level by two points if "the defendant was a minor  participant in any criminal activity."  Application Note 3 of that Guideline defines a  "minor participant" as "any participant who is  less culpable than most other participants, but  whose role could not be described as minimal." We  have previously held that "downward adjustments  to the base offense level for minor participants  are to be used infrequently." United States v.  Tanksley, 104 F.3d 924, 925 (7th Cir. 1997) (per  curiam). "When a defendant requests a decrease in  his offense level, he has the burden of  demonstrating that he is eligible for the  reduction by a preponderance of the evidence."  United States v. Nobles, 69 F.3d 172, 190 (7th  Cir. 1995).


20
In denying Putzlocker's request for a two point  reduction as a minor participant, Judge Clevert  observed:    it seems to me that Mr. Putzlocker is among other  parties who were essentially couriers in this  drug conspiracy. And it does not appear that Mr.  Putzlocker is dissimilar from others and,  therefore, not entitled to some kind of special  treatment as a minor participant . . .     If we just go through the numbers here and look  at who was involved in this conspiracy, and if  you look at the persons named . . . Mr.  Putzlocker had people below him, by his own  acknowledgment, and others at his level. And I  see nothing in his level of participation that  would distinguish him in a way that he should be  given some kind of mitigation in this particular  case.


21
The facts in this case amply support the district  judge's finding. Putzlocker made numerous trips  between Milwaukee and Green Bay to transport  drugs. And, although he was primarily a drug  courier, Putzlocker also played an active role  packaging and distributing the cocaine he had  brought to Green Bay. There were members of the  conspiracy who ranked below Putzlocker and whose  participation was far less important to the  success of the operation than was Putzlocker's.  Finally, we note that the district judge had  carefully familiarized himself with the many  individuals involved in this conspiracy and was  in a good position to determine the extent of  each one's participation. In short, there are  several facts in the record to support the  district court's finding that Putzlocker was not  a minor participant in this drug conspiracy. We  therefore conclude that Judge Clevert did not  commit clear error by denying Putzlocker's  request for a two point reduction.


22
The last defendant whose case is before us,  Lyle Rivard, was sentenced to 130 months in  prison, 60 months supervised release, and ordered  to pay a $500 fine. At sentencing, the district  court found that Rivard was a minor participant  in the conspiracy and therefore reduced his  offense level by two points under U.S.S.G. sec.  3B1.2(b). However, the trial court denied a  government motion under U.S.S.G. sec. 5K1.1 to  deduct an additional point from Rivard's offense  level for substantial assistance to the  government. Rivard complains that the district  court misapplied the Guidelines when it concluded  that he was a minor participant but  simultaneously denied the government's motion for  a downward departure based on substantial  assistance. The government counters Rivard's  appeal by arguing that we do not have  jurisdiction to review the district judge's  discretionary denial of the sec. 5K1.1 motion.


23
We lack jurisdiction to review a district  court's refusal to depart downward where that  refusal resulted from a proper exercise of the  district judge's discretion. United States v.  Winters, 117 F.3d 346, 348 (1997); United States  v. Franz, 886 F.2d 973, 978 (7th Cir. 1989).  Rivard claims that he is entitled to a downward  departure for substantial assistance because he  provided information about Sherard's drug  distribution conspiracy as well as information  concerning a murder in Green Bay. The district  court denied the sec. 5K1.1 motion because it  found that Rivard did not provide any information  that the government did not already have  regarding the drug conspiracy. The trial court  reached this conclusion because Rivard did not  cooperate with the government until  "substantially late in the game" and, by that  time, the government had already arranged for  several other codefendants to testify against  Sherard. Similarly, Judge Clevert found that the  information Rivard provided regarding a murder in  Green Bay had not yet proven to be useful or even  connected to that crime.


24
There were certainly facts in the record to  support Judge Clevert's conclusion that Rivard  did not provide useful information to the  government. By making this finding, the district  judge simply exercised his discretion and  determined that Rivard had not provided the  requisite substantial assistance necessary to  qualify him for a downward departure under  U.S.S.G. sec. 5K1.1. Because the denial of the  government's motion for a downward departure  resulted from a proper exercise of Judge  Clevert's discretion, we have no jurisdiction to  consider Rivard's appeal.


25
The decisions in Sherard's, Milquette's, and  Putzlocker's cases are affirmed. Rivard's appeal  is dismissed for lack of jurisdiction.



Notes:


1
 Four other people were charged in the same  indictment, but their cases are not before us.


2
 Putzlocker also asserts that the district court  should not have included his municipal ordinance  violations when calculating his criminal history  category. We reject Putzlocker's argument for the  same reasons we rejected Milquette's argument--  the conduct Putzlocker was cited for also  violated Wisconsin state law. Furthermore, the  inclusion of these ordinance violations was  harmless because even if they had not been  counted in his criminal history score, Putzlocker  would remain a criminal history category VI.


