                         UNITED STATES COURT OF APPEALS
                                  FIFTH CIRCUIT

                                _______________

                                   No. 95-30946

                               (Summary Calendar)
                                 _______________


                    UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                    versus

                    ERIC LAWAYNE THOMAS,
                    also known as Earl L Thomas,

                                            Defendant-Appellant.


             _______________________________________________

               Appeal from the United States District Court
                   For the Middle District of Louisiana
                                 (95 CR 28 B)
             _______________________________________________
                                 May 1, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*


       Eric Lawayne Thomas pleaded guilty to one count of possession

with       intent   to   distribute   cocaine     base   and   one    count   of

distribution        of   cocaine    base,   in    violation    of    21   U.S.C.

§ 841(a)(1). The district court sentenced Thomas to two concurrent

terms of 228 months and a five year supervised release.              On appeal,

Thomas raises several points of error.

       Thomas contends that the government impermissibly manipulated

       *
            Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
his sentence by delaying his arrest until he had sold over five

hundred grams of crack cocaine to the undercover agent, in order to

"ratchet-up" his base offense level.1            We have yet to recognize the

claim of sentence factor manipulation2 in this circuit, but instead

have evaluated these claims under the due process "outrageous

conduct" standard.3        See United States v. Tremelling, 43 F.3d 148,

151-52      (5th   Cir.)   (declining    to    recognize   claim   of   sentence

manipulation, but instead applying due process test to determine if

the government had impermissibly manipulated the amount of drugs),

cert. denied, ___ U.S. ___, 115 S. Ct. 1990, 131 L. Ed. 2d 876

(1995).       The record in this case supports the district court's

finding that the government did not engage in "outrageous" conduct

and that Thomas's willing participation in the escalating series of

drug       transactions    constituted    conduct   properly   considered     in

determining Thomas's base offense level.               See United States v.

Evans, 941 F.2d 267, 273 (5th Cir.) (holding that a defendant who

actively participated in a series of drug transactions may not

avail himself of the defense of outrageous government conduct),

cert. denied, 502 U.S. 972, 112 S. Ct. 451, 116 L. Ed. 2d 468

(1991); see also United States v. Shephard, 4 F.3d 647, 649 (8th

      1
            Thomas engaged in a series of five transactions in which he sold
crack cocaine to an undercover agent in increasingly greater amounts, culminating
in the final sale of 246.6 grams of crack cocaine.
      2
            Sentencing factor manipulation "occurs when a defendant, although
predisposed to commit a minor or lesser offense, is entrapped in committing a
greater offense subject to greater punishment." United States v. Staufer, 38
F.3d 1103, 1106 (9th Cir. 1994) (internal quotation marks omitted).
       3
            See United States v. Washington, 44 F.3d 1271,1279-80 (5th Cir.)
(declining to address the viability of sentence manipulation claims), cert.
denied, ___ U.S. ___, 115 S. Ct. 2011, 131 L. Ed. 2d 1010 (1995).

                                         -2-
Cir. 1993) (recognizing legitimate government purpose in prolonging

operation      beyond      initial     transaction        for     the     purpose    of

"establishing guilt beyond a reasonable doubt, probing the depth

and   extent    of    a    criminal    enterprise,        determining      whether   a

conspiracy exists, or tracing the drug deeper into the distribution

hierarchy"), cert. denied, ___ U.S. ___, 114 S. Ct. 1322, 127 L.

Ed. 2d 671 (1994).

      Thomas    next      contends    that   the   district       court    improperly

considered a prior adjudication in determining his criminal history

classification.           According    to    the   presentence      report,      Thomas

pleaded guilty to a Louisiana state drug charge.                    The conviction

was later set aside, pursuant to a Louisiana statute, after Thomas

successfully completed a probationary period.                    Thomas argues that

this conviction should not have been considered in calculating his

criminal history because it was "expunged" from his record.                         See

U.S.S.G. § 4A1.2(j) ("sentences for expunged convictions are not

counted").      Thomas, however, presented no evidence to rebut the

findings in the presentence report that this conviction had merely

been set aside following a probationary period. The district court

relied   on    the      probation     officer's      research      concerning       the

disposition of Thomas's prior sentence, and we will not disturb the

district court's finding absent evidence to the contrary.                           See

United   States      v.   Gaytan,     74    F.3d   545,    558    (5th    Cir.    1996)

(requiring     defendant       to     demonstrate     that       district     court's

sentencing information was "materially untrue" in order to prevail

on appeal); see also, United States v. Caswell, 36 F.3d 29, 31 (7th


                                           -3-
Cir. 1994) (declining to accept defendant's contention that prior

conviction had been expunged because the record contained no

evidence that the conviction had been expunged).               Thomas pleaded

guilty to the state drug charge. Although his conviction was later

set aside, § 4A1.2(f) expressly allows the district court to

consider "a diversionary disposition resulting in a finding or

admission of guilt . . . even if a conviction is not formally

entered."    U.S.S.G. § 4A1.2(f); see also United States v. Giraldo-

Lara, 919 F.2d 19, 23 (5th Cir. 1990) (holding that defendant's

guilty   plea    in   deferred    adjudication     proceeding     is   properly

considered in calculating criminal history).                Accordingly, the

district    court     did   not   err    by   considering     Thomas's    prior

adjudication in calculating his criminal history classification.

      Finally, Thomas alleges that the district court erred by

refusing to consider his § 5K1.1 motion for downward departure;

that the sentencing guidelines related to cocaine base offenses are

unconstitutional;4 and that the district court erred by increasing

his offense level for obstruction of justice.           We find these claims

to be without merit.         Thomas's argument concerning the § 5K1.1

motion he attempted to file must fail.               The plain language of

§ 5K1.1 indicates that to be considered, the government must file

the motion.     See U.S.S.G. § 5K1.1 ("Upon motion of the government

. . ."); see also United States v. Harrison, 918 F.2d 30, 32 (5th



      4
            Thomas contends that the sentencing guidelines violate the Fifth
Amendment's equal protection and due process requirements, the Eighth Amendment's
prohibition against cruel and unusual punishment, and are unconstitutionally
vague and ambiguous.

                                        -4-
Cir. 1990) (holding constitutional § 5K1.1's requirement that

government file motion before district court may depart on grounds

that defendant provided "substantial assistance").          Similarly,

Thomas's   contentions   concerning    the   constitutionality   of   the

sentencing guidelines pertaining to crack cocaine offenses are

foreclosed by Fifth Circuit precedent.          See United States v.

Buchanan, 70 F.3d 818, 828 n.9-10 (5th Cir. 1995) (cataloguing

prior decisions rejecting constitutional challenges to sentencing

guidelines applicable to cocaine base offenses), cert. denied, 1996

WL 96864 (Mar. 25, 1996).    Finally, Thomas's contention that the

district court erred in enhancing his sentence for obstruction of

justice under U.S.S.G. § 3C1.1 must also fail. The record supports

the district court's finding that Thomas willfully provided false

testimony with the intent to exculpate a woman who was present

during a drug transaction.    Such perjury is sufficient to support

a § 3C1.1 enhancement. U.S.S.G. § 3C1.1, comment. (n.3(b)); United

States v. Storm, 36 F.3d 1289, 1297 (5th Cir. 1994), cert. denied,

___ U.S. ___, 115 S. Ct. 1798, 131 L. Ed. 2d 725 (1995).

     For the foregoing reasons, we AFFIRM.




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