                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-1741
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Jose Mata-Peres,                        *
                                        *
           Appellant.                   *
      ___________
                                            Appeals from the United States
      No. 06-2017                           District Court for the Northern
      ___________                           District of Iowa.

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Felix Luna-Hernandez,                   *
                                        *
            Appellant.                  *


                             Submitted: January 9, 2007
                                Filed: March 2, 2007
                                 ___________

Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.
                          ___________
BEAM, Circuit Judge.

       Jose Mata-Peres pled guilty to five counts of methamphetamine possession and
sales and one count of knowingly completing a false employment eligibility form.
Felix Luna-Hernandez pled guilty to one count of knowingly and intentionally
distributing and aiding and abetting in the distribution of methamphetamine. Each
defendant was sentenced separately by the district court1 and each contests aspects of
his sentencing.

I.    MATA-PERES

      Mata-Peres challenges two aspects of his sentencing: a two-level section
3B1.1(c) adjustment for a supervisory or managerial role in the offense and the
ultimate reasonableness of his sentence.

      To support the enhancement, Detective Lisa Kenny of the Storm Lake, Iowa,
Police Department testified about sales made to a confidential informant (CI). A co-
worker of the CI set up meetings with the CI and Mata-Peres to carry out controlled
buys. The date, time, location, drug amount, and price would be set at work between
the CI and the co-worker, but then the co-worker would have to confirm the amount
and the price with Mata-Peres.

       On April 23, 2005, the CI arrived at the designated location, where the CI gave
money to the co-worker, and the co-worker gave the money to Mata-Peres. Mata-
Peres then handed the methamphetamine to the co-worker, and the co-worker handed
the drugs to the CI. Mata-Peres spoke only Spanish, the CI spoke only English, and
the bilingual co-worker served as a translator. On May 7, 2005, a similar transaction


      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.

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took place, but the CI paid for only half of the drugs and paid the balance on June 3,
2005. During the June 3 meeting, the CI handed the money to the co-worker who
passed it to Mata-Peres and the three began making arrangements for a larger sale.

       The final sale was set up by the CI and the co-worker, who called Mata-Peres
from a cell phone while at work to confirm the amount of methamphetamine and fix
the price, time and location. As arranged, on June 8, 2005, the CI went to the location,
but the co-worker never showed up. The CI located Mata-Peres, found Luna-
Hernandez to translate and completed the transaction. The police also found an ounce
of methamphetamine, $350.00 and a scale in Mata-Peres' house.

       Based on Detective Kenny's testimony, the district court found that the
government had shown, by a preponderance of the evidence, that Mata-Peres' conduct
warranted a section 3B1.1(c) adjustment for his having a supervisory or managerial
role in the offense. The district court found that Mata-Peres exerted more control over
the situation than did the co-worker, primarily because Mata-Peres made the ultimate
decision on price and quantity and also carried and held the drugs and money.

       We review the district court's decision to apply a section 3B1.1(c) adjustment
for clear error. United States v. Plancarte-Vazquez, 450 F.3d 848, 853 (8th Cir. 2006).
Since Mata-Peres organized or led at least one other participant and assumed the
leadership role of determining the price for the drug sales, the district court's decision
to apply this enhancement was not clearly erroneous. United States v. Willis, 433
F.3d 634, 636-67 (8th Cir.), cert. denied, 127 S. Ct. 144 (2006).

       The district court determined that Mata-Peres' Guidelines sentencing range,
with the section 3B1.1(c) enhancement, was 151 to 188 months. The district court
then rejected Mata-Peres' motion for a variance and sentenced him to the bottom of
the Guidelines range. Now, Mata-Peres claims that the sentence is unreasonable
because the district court failed to recognize its ability to sentence him below the

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advisory Guidelines range. Mata-Peres bases this claim on the district court's noting,
in its denial of the motion, "that lack of criminal history is taken into account in the
defendant's criminal history and, therefore, something that's taken into account in the
criminal history isn't a proper basis for a variance."

        However, Mata-Peres' claim disregards the court's further remarks, "I don't
believe . . . that a variance under Title 18, 3553(a) is appropriate in this case looking
at all of the factors. I don't find sufficient factors that would justify a sentence outside
of the advisory United States Sentencing Guideline range." The district court
correctly observed that a wide variance from a Guidelines sentence based solely on
lack of criminal history risks running afoul of section 3553(a)(6), which requires
courts "to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." United States v. Myers, 439
F.3d 415, 418 (8th Cir. 2006) (citing 18 U.S.C. § 3553(a)(6)).

       From the sentencing transcript, the district court considered whether to vary
from the Guidelines sentencing range and decided to sentence Mata-Peres at the
bottom of the Guidelines range, based on all the 18 U.S.C. § 3553(a) factors. The
district court followed the proper sentencing procedure. "[T]he district court
recognized its right under Booker to sentence outside the Guidelines, determined the
proper, applicable advisory Guidelines range, chose a sentence at the low end of that
range, and then justified that sentence by specific reference to the § 3553(a) factors."
United States v. Shepard, 462 F.3d 847, 875 (8th Cir.), cert. denied, 127 S. Ct. 838
(2006). We find the district court recognized its discretionary authority to vary from
the Guidelines and the sentence imposed is reasonable.




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II.   LUNA-HERNANDEZ

       Luna-Hernandez, likewise, alleges two sentencing errors: the addition of two
criminal history points for committing the instant offense while on probation and the
district court's engaging in fact-finding on the probation issue, which ultimately
disqualified Luna-Hernandez from 18 U.S.C. § 3553(f) safety-valve relief and
required the imposition of a mandatory-minimum sentence.

       We review the district court's interpretation and application of the Sentencing
Guidelines de novo, and its factual findings for clear error. United States v.
Grinbergs, 470 F.3d 758, 760 (8th Cir. 2006). In his brief, Luna-Hernandez
essentially argues that the district court should not have assessed two criminal history
points for commission of the instant offense while on probation because Iowa did not
follow sufficient procedures to give him notice that he was still on probation.

        Contrary to these assertions, a judgment entered in the Iowa District Court for
Buena Vista County was introduced at sentencing, and this Iowa judgment stated that
Luna-Hernandez was placed on probation on September 20, 2004, for a period of one
year. Luna-Hernandez' claim of lack of notice is unavailing, as the Iowa judgment
itself notes that Luna-Hernandez took a copy of the judgment on September 20, 2004.
Also, Luna-Hernandez made a subsequent court appearance asking for an extension
of time to comply with one of the specific requirements of the Iowa judgment. Since
Luna-Hernandez' conduct in the instant offense occurred on June 8, 2005, he was still
on probation and the two additional criminal history points were properly assessed
pursuant to section 4A1.1(d) of the Sentencing Guidelines.

      Luna-Hernandez' second allegation of sentencing error takes the form of a
three-part argument. The first part of this argument, that the government was required
to provide witnesses to prove that he was on probation at the time of the instant



                                          -5-
offense, is rejected. The government offered a certified copy of the judgment against
him, and Luna-Hernandez did not object to this exhibit.

       Second, Luna-Hernandez argues that the district court violated Booker by
judicially finding that the defendant was on probation. In holding that mandatory
sentencing guidelines are unconstitutional, United States v. Booker decreed, "[a]ny
fact (other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable doubt."
543 U.S. 220, 244 (2005). Luna-Hernandez' argument that the district court erred in
finding facts about the nature of the conviction and its ensuing punishment is
unavailing. See, e.g., Shepard, 462 F.3d at 871-72 (examining the nature of prior
convictions for sentencing purposes), United States v. Davis, 417 F.3d 909, 913 (8th
Cir. 2005) (rejecting defendant's arguments that the facts related to a prior conviction
should have been submitted to the jury prior to imposition of a mandatory-minimum
sentence), cert. denied, 126 S. Ct. 1160 (2006).

       Third, Luna-Hernandez argues that this judicial fact-finding results in the
imposition of a statutorily mandated minimum sentence in contravention of Booker.
See, e.g., Shepard, 462 F.3d at 875 (explaining that no Booker error occurred when
the defendant was sentenced to a statutorily defined mandatory-minimum sentence as
a career offender, in a case where the jury had determined the drug quantity at issue
and the court had determined the defendant's status as a career offender based on
previous convictions). However, since the judicial fact-finding related only to the
punishment imposed for a previous conviction, the district court did not violate
Booker.

III.   CONCLUSION

       For the reasons stated, we affirm the district court.
                        ______________________________

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