           _____________

           No. 96-1134NI
           _____________

United States of America,              *
                                       *
                Appellee,              *
                                       *
     v.                                *
                                       *
Marvin Jerome Knight,                  *
                                       *
                Appellant.             *

           _____________                   Appeals from the United States
                                           District Court for the Northern
           No. 96-1211NI                   District of Iowa.
           _____________

United States of America,            *
                                     *
                Appellee,            *
                                     *
     v.                              *
                                     *
Edward James Backstrom,              *
                                     *
                Appellant.           *
                               _____________

                          Submitted:   July 11, 1996

                            Filed: September 18, 1996
                                _____________

Before FAGG, LAY, and HEANEY, Circuit Judges.
                              _____________


FAGG, Circuit Judge.


     An undercover government agent met with Marvin Jerome Knight and
Edward James Backstrom to purchase drugs.      Backstrom handed drugs to the
agent after Knight approved the purchase price.        The government later
charged Knight, Backstrom, and three others with conspiracy to distribute
cocaine and cocaine base, and several
related crimes.    Knight and Backstrom signed written plea agreements and
pleaded guilty to conspiracy to distribute cocaine and cocaine base in
violation of 21 U.S.C. §§ 846 and 841(a)(1) (1994).    Knight and Backstrom
appeal their sentences.     Knight also appeals the denial of his motion to
withdraw his guilty plea.    We affirm.


        Knight contends the district court should have granted his motion to
withdraw his guilty plea.   When a motion to withdraw a guilty plea is made
before sentencing, the district court may grant the motion if the defendant
shows a fair and just reason.     Fed. R. Crim. P. 32(e).   If the defendant
shows a fair and just reason, the district court then must consider
"`whether the defendant asserts his innocence of the charge, the length of
time between the guilty plea and the motion to withdraw it, and whether the
government will be prejudiced if the court grants the motion.'"       United
States v. Wicker, 80 F.3d 263, 266 (8th Cir. 1996) (quoting United States
v. Nichols, 986 F.2d 1199, 1201 (8th Cir. 1993)).   We review the denial of
a motion to withdraw a guilty plea for abuse of discretion.     Id.


        Knight contends he showed fair and just reasons for withdrawing his
plea.    First, Knight points to the government's failure to file a motion
to reduce his sentence for substantial assistance.       Knight asserts the
government promised to file a motion if Backstrom pleaded guilty, but the
written plea agreement shows the government retained discretion about
filing a departure motion for substantial assistance.         The agreement
specifically states the government "has made no promise, implied or
otherwise, that a departure motion will be made."        The agreement also
states Knight understood he would "not be permitted to withdraw his plea
of guilty . . . [if] he is not satisfied with the government's `substantial
assistance' motion decision."     Contrary to his current claim of an oral
promise, Knight stated at sentencing that the written plea agreement
covered his entire understanding with the




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government.    The district court properly found "no basis for [Knight's]
contention that he entered his plea on condition that he would receive a
substantial assistance reduction or departure."       See United States v.
Kelly, 18 F.3d 612, 618-19 (8th Cir. 1994).


     Knight next asserts a change in the law applicable to the gun charge
materially altered the plea agreement's basis.    During plea negotiations,
the government agreed not to indict Knight for using or carrying a firearm
in relation to a drug trafficking crime, 18 U.S.C. § 924(c), if Knight
pleaded guilty to the drug conspiracy.   After Knight's plea, the Supreme
Court held mere possession of a firearm by a person who commits a drug
offense is insufficient to support a conviction under 18 U.S.C. § 924(c)
for use of a firearm in relation to a drug trafficking crime.     Bailey v.
United States, 116 S. Ct. 501, 506 (1995).       In light of Bailey, Knight
might not qualify for conviction under § 924(c).    This does not undermine
Knight's bargain with the government, however.   The government had indicted
Knight for several other drug offenses, and dropped those charges in
exchange for his plea.


     Knight also complains the government did not allow him to visit sick
family members and attend his grandmother's funeral, and did not transfer
him to a correctional facility near his family pending sentencing.    These
matters were not part of the plea agreement.   Finally, by pleading guilty,
Knight waived his belated claim that he is the victim of selective
prosecution.    United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.
1996); see Tollett v. Henderson, 411 U.S. 258, 267 (1973).   Because Knight
failed to show a fair and just reason for withdrawing his guilty plea, the
district court did not abuse its discretion in denying Knight's withdrawal
motion.


     To challenge his sentence, Knight first contends the district court
committed error in increasing his base offense level by two under U.S.S.G.
§ 2D1.1(b)(1) for possession of a dangerous weapon.




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Knight relies on the Supreme Court's recent decision in Bailey, but his
reliance is misplaced.     The Court in Bailey specifically points out that
the government can still seek a § 2D1.1(b)(1) increase when a defendant
merely possesses a firearm during a drug-trafficking offense.           116 S. Ct.
at 509; see United States v. Thomas, No. 95-3940, 1996 WL 471336, at *8-9
(8th Cir. Aug. 21, 1996) (remanding for consideration of § 2D1.1(b)(1)
increase following reversal of conviction under 18 U.S.C. § 924(c)).
Indeed, in the plea agreement Knight stipulated the increase applied.


     Knight also contends the district court should have reduced his base
offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.
When a defendant clearly shows acceptance of responsibility, the district
court can decrease the defendant's offense level by two.           Id. § 3E1.1(a).
If a defendant qualifies for the two-level decrease, the district court can
decrease   the   offense   level   by   one   additional   level    under   certain
circumstances.    Id. § 3E1.1(b).


     The district court's refusal to give Knight any credit for acceptance
of responsibility is not clearly erroneous.       United States v. Johnigan, No.
95-3606, 1996 WL 411887, at *6 (8th Cir. July 24, 1996).              At the plea
hearing, Knight acknowledged that his criminal activity involved more than
50 grams of cocaine base.     Nevertheless, Knight later filed a motion to
withdraw his plea asserting he was not guilty.      At sentencing, Knight again
denied involvement with cocaine base.         Thus, the district court properly
found Knight had not accepted responsibility.      Id. (defendant who initially
pleaded guilty but then said at change of plea hearing that he was "doing
nothing illegal" had not accepted responsibility).         Contrary to Knight's
contention, the district court did not penalize Knight for refusing to
volunteer self-incriminating information, but instead did not give Knight
a benefit extended to defendants who accept responsibility for their




                                        -4-
wrongs.      United States v. McQuay, 7 F.3d 800, 802-03 (8th Cir. 1993)
(§ 3E1.1 does not violate Fifth Amendment right to remain silent).


      Knight next contends the district court committed error in enhancing
his offense level by four for being an organizer or leader of criminal
activity involving five or more participants.             U.S.S.G. § 3B1.1(a).        We
have broadly interpreted the terms "organizer" and "leader."            United States
v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996).             In deciding whether the
enhancement applies, courts consider several factors.           U.S.S.G. § 3B1.1 n.4
(listing factors).      We conclude the district court properly assessed the
enhancement against Knight.


      At the sentencing hearing, the undercover agent testified Knight was
the   key    link   between   the   suppliers    of   cocaine   in   Chicago   and   his
distributors and customers in Cedar Rapids.           Knight maintained control over
the drugs and had keys to the shed where the drugs were stored.                 Knight
also negotiated drug transactions, set the price, and had others deliver
drugs to the agent.     See McMullen, 86 F.3d at 138; United States v. Greene,
995 F.2d 793, 801-02 (8th Cir. 1993).           At least five people were involved
in the criminal activity, and Knight gave Backstrom approval to sell drugs
for   a   certain price to the agent, showing Knight organized or led
Backstrom.     See McMullen, 86 F.3d at 138.


      Knight asserts the agent's testimony is unreliable hearsay.                    The
agent's testimony was corroborated by his interaction and conversations
with Knight and his coconspirators, however, and the court could properly
rely on reliable hearsay statements, United States v. Cassidy, 6 F.3d 554,
557   (8th    Cir. 1993); U.S.S.G. § 6A1.3(a).             Further, Knight had an
opportunity to rebut the evidence by cross-examining the agent.            See United
States v. Weaver, 906 F.2d 359, 360 (8th Cir. 1990) (per curiam).                Thus,
the district court could properly rely on the agent's testimony in




                                         -5-
finding Knight was the organizer or leader of criminal activity involving
five or more participants.


      Last, Knight argues the statute that enhances penalties for offenses
involving cocaine base, 21 U.S.C. § 841(b), is void for vagueness and
inapplicable under the rule of lenity.       These arguments are foreclosed by
our decision in United States v. Jackson, 64 F.3d 1213, 1219-20 (8th Cir.
1995), cert. denied, 116 S. Ct. 966 (1996).       This panel lacks authority to
reconsider the Jackson decision, as Knight requests.           United States v.
Perkins, No. 95-3880, 1996 WL 476132, at *8 (8th Cir. Aug. 23, 1996).



      We now turn to Backstrom's appeal.      Backstrom contends the district
court committed clear error in finding he is a career offender.                   A
defendant is a career offender if, among other things, the defendant has
at least two earlier felony convictions for either a crime of violence or
a controlled substance offense.        U.S.S.G. § 4B1.1(3).      To qualify as
separate earlier felony convictions under § 4B1.1(3), the sentences for the
felony   convictions   must   be   imposed   in   unrelated   cases.      See   id.
§ 4A1.2(a)(2); United States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992).


      Backstrom contends his state drug delivery conviction cannot be
counted as an earlier conviction under § 4B1.1 because his state conviction
is   related to his federal drug conspiracy conviction in this case.
According to Backstrom, the state delivery was part of the same plan as the
federal drug conspiracy.      We reject Backstrom's contention.        Backstrom's
sentence for the state delivery conviction is unrelated to his sentence for
the federal drug conspiracy because he was arrested for the state delivery
before the federal conspiracy began.          U.S.S.G. § 4A1.2 n.3 (defining
related cases); United States v. Aguilera, 48 F.3d 327, 330 (8th Cir.),
cert. denied, 116 S. Ct. 117 (1995).     The state drug delivery occurred in
July 1993, Backstrom was arrested in




                                      -6-
September 1993, and the federal conspiracy ran from March to November 1994.
Indeed, Backstrom's own testimony at sentencing shows he did not meet his
federal coconspirators, and thus could not have entered the conspiracy,
until after his arrest on the state charges.           We also reject Backstrom's
assertion that his career offender sentence constitutes cruel and unusual
punishment under the Eighth Amendment.          United States v. Gordon, 953 F.2d
1106, 1107 (8th Cir.), cert. denied, 506 U.S. 858 (1992); United States v.
Foote, 920 F.2d 1395, 1401 (8th Cir. 1990), cert. denied, 500 U.S. 946
(1991).


        Backstrom also contends the court committed error in refusing to
depart from the final, adjusted guideline range because it overrepresented
the seriousness of his earlier convictions.          The court's decision that a
downward departure was not warranted is not reviewable on appeal.          Mau, 958
F.2d at 237.      The court's comments taken as a whole show the court
understood it could depart.      United States v. West, 942 F.2d 528, 532 (8th
Cir. 1991).


        Last, Backstrom asserts the court should have reduced his offense
level    by three instead of by two for acceptance of responsibility.
Backstrom asserts he is entitled to the additional one-level reduction
because he "timely provid[ed] complete information to the government
concerning his own involvement in the offense."             U.S.S.G. § 3E1.1(b)(1);
see United States v. Thompson, 60 F.3d 514, 516-17 (8th Cir. 1995).           There
is no clear error in the district court's implicit finding that Backstrom
did   not   provide   the   government   with    complete   information   about   his
involvement in the offense.       At sentencing, Backstrom denied involvement
in the March 14, 1994 cocaine base transaction, even though the district
court found Backstrom was involved in the sale.        Backstrom also refused to
elaborate on other uncontested cocaine sales.           Thus, the district court
properly denied Backstrom the additional one-level reduction.




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We affirm the district court.


A true copy.


     Attest:


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




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