The Honorable William G. Cambridge, Chief Judge, United States District

1

Court for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4287

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Kirsten Meyer, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: March 12, 1998

 Filed: March 19, 1998

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Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

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PER CURIAM.

Kirsten Meyer appeals the 9-month sentence imposed by the district court after 1

she pleaded guilty to conspiring to use counterfeit access card devices, in violation of

18 U.S.C. §§ 371 and 1029(a)(1). We affirm.
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For reversal, Meyer first argues that the district court erred in assessing two

criminal history points pursuant to U.S. Sentencing Guidelines Manual § 4A1.1(d)

(1997) because she committed the instant offense while under a three-year sentence of

probation for a prior conviction of driving under the influence (DUI). Specifically,

Meyer contends that she received a three-month sentence for the DUI conviction and

thus was not serving the sentence when she committed the instant offense.

We conclude that the district court did not err in assessing the two criminal

history points. At sentencing, the government introduced a certified copy of the

probation order showing the term was three years, and Meyer&s petition to enter a guilty

plea to the DUI charge, in which she acknowledged that she had been promised three

years probation. See United States v. Larson, 110 F.3d 620, 627 (8th Cir. 1997)

(district court&s interpretation of Guidelines is reviewed de novo and its factual findings

reviewed for clear error); United States v. Khang, 904 F.2d 1219, 1222 (8th Cir. 1990)

(government bears burden to establish facts justifying enhancement); cf. United States

v. Abanatha, 999 F.2d 1246, 1250-51 (8th Cir. 1993) (court did not clearly err in

enhancing criminal history because defendant was on probation when instant offense

was committed based on certified copy of conviction which showed defendant had been

placed on probation for 5 years introduced by government, even though defendant&s

mother testified defendant&s probation had been reduced to 3 years), cert. denied, 511

U.S. 1035 (1994). 

Meyer also argues that the district court erred in failing to depart further than it

did after granting the government&s downward-departure motion. We decline to review

this challenge, see United States v. McCarthy, 97 F.3d 1562, 1577 (8th Cir. 1996)

(extent of downward departure is unreviewable), cert. denied, 117 S. Ct. 1011 and 1284

(1997), and we note Meyer&s argument that she should have received the same sentence

as her co-defendant is not persuasive, see United States v. Womack, 985 F.2d 395, 400

(8th Cir.) (shorter sentence of co-defendant is not basis to invalidate sentence
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of defendant; claim that district court erred in failing to depart to degree it did in codefendant&s case is just another way of raising issue of extent of departure), cert. denied,

510 U.S. 902 (1993). 

The judgment is affirmed.

A true copy.

Attest:

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