                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      _______________

        No. 05-1644
      _______________

United States of America,             *
                                      *
      Appellee,                       *
                                      *
      v.                              *
                                      *
Patrick Allen Vasquez, also known     *
as Benji Vasquez,                     *
                                      *
      Appellant.                      *

      _______________
                                              Appeals from the United States
        No. 05-1812                           District Court for the
      _______________                         Northern District of Iowa.


United States of America,             *
                                      *
      Appellee,                       *
                                      *
      v.                              *
                                      *
Dani Yaacoub Masse,                   *
                                      *
      Appellant.                      *
                                ________________

                           Submitted: December 14, 2005
                               Filed: January 11, 2006
                              ________________

Before BYE, BOWMAN and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Dani Yaacoub Masse (“Masse”) and Patrick Allen Vasquez (“Vasquez”) pled
guilty to conspiracy to distribute cocaine and possession with intent to distribute
cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. The district
court1 sentenced Masse to 151 months’ imprisonment and five years’ supervised
release and Vasquez to 135 months’ imprisonment and five years’ supervised release.
Masse appeals his sentence on the grounds that the Government breached his plea
agreement, the district court applied the wrong standard of proof at sentencing, and
the district court erred regarding certain sentencing adjustments and departures. Both
defendants appeal their sentences as unreasonable under United States v. Booker, 543
U.S. 220 (2005). For the reasons discussed below, we affirm both sentences.

I.    BACKGROUND

       Masse and Vasquez pled guilty pursuant to written plea agreements and were
sentenced in separate post-Booker sentencing hearings. At Vasquez’s hearing, the
district court calculated a United States Sentencing Guidelines range of 135-168
months’ imprisonment and imposed a sentence of 135 months. At Masse’s hearing,




      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                         -2-
the district court calculated a guidelines range of 151-188 months and imposed a
sentence of 151 months.

      In Masse’s plea agreement, Masse stipulated that certain co-conspirators made
statements about his involvement in the conspiracy but added handwritten
amendments that he did not stipulate to the veracity of these statements. His plea
agreement also contained the following provision:

      [A]s of the date of this agreement, [Masse] appears to qualify for a two-
      level downward adjustment for acceptance of responsibility . . . .
      However, the government shall be free to contest this adjustment should
      [Masse] subsequently fail to continue to accept responsibility . . . by
      acting in a way that is inconsistent with . . . the granting of the
      adjustment under USSG § 3E1.1(a).

Prior to Masse’s sentencing hearing, Masse objected to certain offense-conduct
paragraphs in his Presentence Investigation Report (“PSR”) which were identical to
the aforementioned stipulations as modified by the handwritten amendments.

       The Government responded to Masse’s objections in its sentencing
memorandum. In Part B of the memorandum, captioned “Defendant should not be
entitled to a three-level reduction for acceptance of responsibility if he continues to
frivolously contest facts,” the Government contended that Masse “lodged numerous
objections to the factual section of the PSR” and warned that “if defendant frivolously
contests relevant conduct at the time of his sentencing hearing, the United States will
ask that the Court deny a downward adjustment for acceptance of responsibility.”

       In response to this memorandum, Masse filed a motion for specific performance
of the plea agreement, requesting that the district court order the Government not to
oppose a downward adjustment for acceptance of responsibility. In that motion,



                                          -3-
Masse argued that the Government breached the plea agreement in its sentencing
memorandum because the memorandum contained an impermissible argument against
his downward adjustment for acceptance of responsibility.

       The district court addressed Masse’s motion at the onset of his sentencing
hearing. When the court asked the Government if it was “intending to resist the
Defendant receiving adjustment of responsibility,” the Government indicated, “we
are not . . . [but] if the Defendant contests relevant conduct, we will be.” The
Government also explained that, after speaking with Masse’s attorney, it now
understood Masse’s objections to be legal arguments instead of denials of relevant
conduct. The district court proceeded to deny Masse’s motion because the court did
not believe that the Government was in breach of the plea agreement. Just prior to the
district court’s imposition of sentence, the Government told the district court that
Masse is “eligible for acceptance of responsibility,” and the district court granted
Masse a three-level downward adjustment for acceptance of responsibility.

II.   DISCUSSION

      A.     Breach of Masse’s Plea Agreement

       Masse argues that he should be resentenced because the Government breached
his plea agreement by contesting his adjustment for acceptance of responsibility. We
review de novo issues pertaining to the interpretation and enforcement of a plea
agreement. United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir. 2001).

       We conclude that the Government did not breach the plea agreement because
the Government never contested the adjustment for acceptance of responsibility. In
Masse’s plea agreement, the Government agreed that it would not contest this
adjustment provided that Masse did not act in a manner inconsistent with acceptance
of responsibility. Masse argues that the Government contested this adjustment in its


                                         -4-
sentencing memorandum. This argument, however, is factually inaccurate. The
Government never contested the adjustment–it simply reiterated the terms of the plea
agreement consistent with the commentary to the guidelines. See U.S.S.G. § 3E1.1,
cmt. n.1(a) (“a defendant who . . . frivolously contests . . . relevant conduct that the
court determines to be true has acted in a manner inconsistent with acceptance of
responsibility”). The Government’s sentencing memorandum stated, “[I]f defendant
frivolously contests relevant conduct at the time of his sentencing hearing, the United
States will ask that the Court deny a downward adjustment for acceptance of
responsibility” (emphasis added). At the sentencing hearing, the Government
indicated that it was not resisting the adjustment because it understood Masse’s
objections to the PSR to be legal in nature but that it would resist the adjustment if
Masse contested relevant conduct. After the district court denied Masse’s motion for
specific performance, Masse did not contest relevant conduct, the Government
affirmed that Masse accepted responsibility and even recommended an extra level of
reduction under U.S.S.G. § 3E1.1(b), and Vasquez received a three-level downward
adjustment for acceptance of responsibility. We agree with the district court that the
Government did not breach the plea agreement.

      B.     Standard of Proof

       Masse argues that the district court erred in requiring proof of sentencing
enhancements by a preponderance of the evidence instead of requiring proof beyond
a reasonable doubt. “This claim has been squarely rejected by our circuit.” United
States v. McKay, No. 05-1823, slip op. at 14 (8th Cir. Dec. 13, 2005). We have held
that, post-Booker, sentencing courts should continue to apply a preponderance of the
evidence standard. See, e.g., United States v. Pirani, 406 F.3d 543, 552 n.4 (8th Cir.
2005) (en banc).




                                          -5-
      C.     Sentencing Issues

       Masse argues that the district court erred in adjusting his sentence upward three
levels for his role in the offense and declining to depart downward for substantial
assistance and overstated criminal history. After Booker, we review de novo the
interpretation and application of the guidelines, and we review the district court’s
factual findings for clear error. United States v. Mashek, 406 F.3d 1012, 1017 (8th
Cir. 2005).

        First, the district court did not err in increasing Masse’s offense level by three
levels for his role in the offense. See U.S.S.G. § 3B1.1(b) (requiring the district court
to increase a defendant’s offense level by three levels if the defendant was a “manager
or supervisor” in a criminal activity involving five or more participants). Masse
argues that his role did not warrant a three-level upward adjustment and that the
district court should have considered a lesser adjustment “in between” the guidelines
parameters. This argument is misplaced. The district court did not clearly err in
finding that Masse was a manager or supervisor in this conspiracy because there was
sufficient evidence to establish that Masse organized the transmission of cocaine from
Nevada to Iowa by at least four other people and that there were at least five
participants in the conspiracy. See, e.g., United States v. Lopez, 431 F.3d 313, 317
(8th Cir. 2005) (explaining that a § 3B1.1(b) adjustment is appropriate when a
defendant directs at least one other participant in a conspiracy involving at least five
people). Therefore, the district court did not err in adjusting his sentence by three
levels. See United States v. Scott, 243 F.3d 1103, 1108 (8th Cir. 2001) (holding that,
if a three-level adjustment under § 3B1.1(b) is appropriate, the district court cannot
impose a two-level adjustment under § 3B1.1(c) as a compromise).

      Second, the district court did not err in declining to depart downward for
substantial assistance because the Government did not make a motion for such a
departure. See U.S.S.G. § 5K1.1 (“Upon motion of the government . . . the court may


                                           -6-
depart from the guidelines.”); United States v. Hart, 397 F.3d 643, 646-47 (8th Cir.
2005) (holding that the district court did not err when it refused to compel the
government to file a § 5K1.1 motion); cf. United States v. Ziesman, 409 F.3d 941, 957
(8th Cir. 2005) (affirming that, post-Booker, district courts can only review the
Government’s refusal to make a § 5K1.1 motion if the refusal was based on an
unconstitutional motive or was not rationally related to a legitimate government
interest). Masse has never argued that the Government’s refusal to make a § 5K1.1
motion was based on an unconstitutional motive or was not rationally related to a
legitimate government interest. Therefore, the district court could not consider a §
5K1.1 departure.

       Third, we cannot review whether the district court erred in declining to exercise
its discretion to depart downward for overstated criminal history. See U.S.S.G. §
4A1.3(b)(1) (“If reliable information indicates that the defendant’s criminal history
category substantially over-represents the seriousness of the defendant’s criminal
history . . . a downward departure may be warranted.”) (emphasis added). “The
discretionary denial of a motion for downward departure is unreviewable unless the
court failed to recognize its authority to depart.” United States v. Andreano, 417 F.3d
967, 970 (8th Cir. 2005). The district court recognized its authority to depart
downward under § 4A1.3 and declined to do so. Therefore, we cannot review the
district court’s decision.

      D.     Reasonableness of Defendants’ Sentences

      Masse and Vasquez appeal sentences at the bottom of their respective
guidelines ranges as unreasonable. We review the reasonableness of a sentence for
an abuse of discretion. See United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir.
2005). Sentences within the guidelines are “presumptively reasonable.” United States
v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005). Nevertheless, a sentence within an
advisory guidelines range may be unreasonable if the sentencing court: (1) fails to


                                          -7-
consider a relevant factor that should have received significant weight; (2) gives
significant weight to an improper or irrelevant factor; or (3) considers only the
appropriate factors but in weighing those factors commits a clear error of judgment.
United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).

             1.     Masse’s Sentence

       Masse’s sentence is reasonable because the district court imposed a sentence
within the advisory guidelines range pursuant to an explicit and appropriate
consideration of the factors under 18 U.S.C. § 3553(a). See Lincoln, 413 F.3d at 717
(holding that defendant failed to rebut the presumption of reasonableness where the
district court expressly justified the sentence on grounds contained in § 3553(a)).
Masse argues that the district court abused its discretion under § 3553(a) by failing to
consider his attempts to cooperate and by giving too much weight to his role in the
offense and his criminal history. These arguments fail because the district court
considered all of the § 3553(a) factors. Regarding Masse’s attempts to cooperate, role
in the offense and criminal history, the district court explained, “[S]pecifically, I
considered . . . what I heard in court . . . on the issue of nature and circumstances of
the offense and history and characteristics of the defendant.” Therefore, the district
court did not abuse its discretion by refusing to use § 3553(a) to modify its rulings on
sentencing adjustments and departures contained in its calculation of Masse’s
presumptively reasonable guidelines range.

             2.     Vasquez’s Sentence

       Vasquez argues that his 135-month sentence was unreasonable because the
district court failed to consider the relevant factor of avoiding unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a)(6) (explaining “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct”). A co-defendant, Dori Masse (Dani Masse’s brother),


                                          -8-
received 31 months’ imprisonment for similar conduct. Vasquez’s sentence is
reasonable, however, because the disparity in this case is not unwarranted. Vasquez
received a greater sentence than Dori Masse because Vasquez was responsible for a
larger quantity of drugs and had a greater criminal history than Dori Masse. See
United States v. Chauncey, 420 F.3d 864, 878 (8th Cir. 2005) (holding that
defendant’s sentence was reasonable despite his co-defendant’s shorter sentence
because defendant had a more significant criminal history than his co-defendant).

        Vasquez also argues more generally that his sentence is unreasonable because
it frustrates the goal of eliminating sentencing disparities among similarly situated
defendants in different cases. In particular, he complains about the randomness of
determining offense levels, the “systematic inequity” regarding substantial assistance
reductions, and the arbitrariness in calculating criminal history. We do not believe,
however, that these arguments affect the reasonableness of Vasquez’s sentence, which
falls within the presumptively reasonable guidelines range and was imposed after the
district court announced its consideration of all the § 3553(a) factors. See Lincoln,
413 F.3d at 717.

III.   CONCLUSION

       For the reasons discussed above, we affirm the sentences of both defendants.

                       ______________________________




                                         -9-
