In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-2115, 99-2134, 99-2237 & 99-3403

United States of America,

Plaintiff-Appellee,

v.

Darryl Milquette, Lyle Rivard, 

Stephen Putzlocker, and James Sherard,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 98-CR-193--Charles N. Clevert, Judge.

Argued February 25, 2000--Decided June 2, 2000

 Before Bauer, Ripple, and Manion, Circuit Judges.

 Bauer, Circuit Judge. From early-1997 through

mid-1998, James Sherard was the leader of a

cocaine distribution network that supplied drugs

to the Green Bay, Wisconsin area. Working out of

Milwaukee, Wisconsin, Sherard obtained cocaine

and arranged for Lyle Rivard and Stephen

Putzlocker to transport the drugs from Milwaukee

to Green Bay. After the drugs arrived in Green

Bay, Darryl Milquette was in charge of packaging

and distributing the cocaine; Putzlocker helped

Milquette package and distribute the drugs. After

the drugs had been sold, Rivard and Putzlocker

returned to Milwaukee and delivered cash to

Sherard who gave them more cocaine to take back

to Green Bay. 

 Eventually, the law caught up with the drug

ring and a grand jury in the Eastern District of

Wisconsin returned an indictment charging

Sherard, Milquette, Rivard, and Putzlocker/1

with conspiracy to distribute and possess with

intent to distribute cocaine in violation of 21

U.S.C. sec.sec. 841(a)(1) and 846 and 18 U.S.C.

sec. 2. All four pled guilty, but Sherard moved

to withdraw his plea. After a hearing, the

district court denied Sherard’s motion. The

district court then sentenced Sherard to 374

months in prison, 60 months of supervised

release, and a $2000 fine. Sherard appeals the
denial of his motion to withdraw his guilty plea.

 Rule 32(e) of the Federal Rules of Criminal

Procedure authorizes a district judge to permit

the withdrawal of a guilty plea "if the defendant

shows any fair and just reason." However, once a

district court has accepted a guilty plea, the

defendant does not have an unlimited right to

withdraw the plea; rather, the burden is on the

defendant to demonstrate a fair and just reason

for such withdrawal. United States v. Schilling,

142 F.3d 388, 398 (7th Cir. 1998). We review a

district court’s denial of a motion to withdraw

a guilty plea for abuse of discretion. United

States v. Pike, No. 99-2532, 2000 WL 520594, at

*3 (7th Cir. May 1, 2000). In reviewing the

district court’s decision, we will uphold factual

findings as to whether the defendant has

demonstrated a fair and just reason unless they

are clearly erroneous. United States v. LeDonne,

21 F.3d 1418, 1423 (7th Cir. 1994).

 Sherard argues that the district court should

have permitted him to withdraw his plea for two

reasons. First, he claims that he was in a state

of panic when he entered his guilty plea. Sherard

contends that he pled guilty the day his trial

was scheduled to begin only because he had just

learned that all of his codefendants were going

to testify against him. According to Sherard,

"this information clouded his judgment" and

"overwhelmed" him. Sherard told the district

court that he was innocent of the crime, but that

since all of his codefendants were going to

testify against him, he was sure he would be

convicted "no matter what the truth was." As his

second reason for wanting to withdraw his guilty

plea, Sherard asserts that he did not fully

understand the prison sentence that he faced.

Sherard claims that he thought his plea agreement

would give him a sentence of ten years instead of

the more than thirty year sentence he received.

 At the hearing on Sherard’s motion to withdraw

his guilty plea, the district court inquired at

great length into the circumstances of Sherard’s

guilty plea. Judge Clevert reviewed the

transcript of Sherard’s change of plea hearing

and had substantial portions of the transcript

read into the record. When denying Sherard’s

motion to withdraw his plea, the district court

stated:

I don’t find anything, any fair or just reason on

this record to warrant vacating the plea.

[Sherard] has not, first of all, in listening to

the exchange and recalling what took place during

the course of the guilty plea hearing there is no

doubt in my mind that [Sherard] was clear

thinking at the time of the plea.
The fact that your client did not blindly accept

the factual allegations of the U.S. Attorney and

went so far as to precisely talk about the dates

involved and what he did and what others did

underscores my conclusion that he was clear

thinking and that he was not in a state of panic.

I could search with a telescope and not find any

reasons in this case on this particular record.

I have not heard you say anything which would

allow me to conclude that Mr. Sherard did not

enter this guilty plea with full and complete

knowledge of what it was, what was charged, and

that he did not know whether or not he should

plead guilty or not guilty. On this record from

what he said he clearly acknowledged his

involvement in the conspiracy.

 The district court found, as a matter of fact,

that Sherard was thinking clearly and was not in

a state of panic when he entered his guilty plea.

The district court based this factual finding on

its own recollection of Sherard’s demeanor during

his change of plea hearing as well as the fact

that Sherard contested certain facts at the

hearing and provided very specific information

about the conspiracy. This factual determination

was not clearly erroneous; rather, based on the

record, this conclusion was entirely reasonable.

Since Sherard offered no credible factual support

for his argument that he panicked, the district

court did not abuse its discretion in rejecting

it.

 Sherard’s second argument for withdrawing his

plea, that he did not understand the sentence

that could be imposed, is also without factual

support. Contrary to Sherard’s assertions, the

record shows that the district court advised him

of the maximum possible penalty at the change of

plea hearing. At that hearing, the district court

read the portions of the plea agreement which

related to sentencing. The district judge

specifically asked Sherard if he understood those

sections and Sherard said that he did. The trial

court further advised Sherard that his plea

agreement did not provide any guarantees as to

what his sentence would be and that much of his

final sentence rested within the discretion of

the United States Attorney’s Office. 

 Moreover, at the hearing to withdraw the plea,

the district court and Sherard’s attorney had the

following exchange:

SHERARD’S ATTORNEY: It was clear in Mr.

Sherard’s mind that somehow it was, it’s his

recollection that he was fairly comfortable with

the fact that if he cooperated and provided the
information that the government wanted that his

sentence would be somewhere in the range of ten

years. I don’t recall that portion of the

conversation and he feels that it was explicitly

stated.

When we got an opportunity to sit down after he

returned with an actual sentencing guideline and

he began to discuss his recollections of what was

taking place just prior to the time he entered

the plea agreement I didn’t feel that those were

realistic expectations unless there was some new

information I wasn’t aware of. And I realize that

for some reason his recollection was totally

different than mine and his understanding at the

time he entered into the plea agreement according

to what he’s telling me is completely different

than what I felt we discussed.

THE COURT: Is there something in the plea

agreement which you can specifically point to as

evidence that your client did not know the

maximum possible penalty in this case?

SHERARD’S ATTORNEY: No, Your Honor. I believe

the maximum possible penalty was well known by

the defendant prior--

At that point, Sherard interrupted and declared

that he never knew about the maximum possible

penalty, but, as we explained, the record clearly

contradicts this position. Because the factual

record shows that Sherard was advised of the

possible penalties in this case, the district

court did not abuse its discretion in denying his

motion to withdraw his plea agreement.

 Darryl Milquette received a sentence of 110

months imprisonment, 60 months of supervised

release, and a $2000 fine. When calculating

Milquette’s criminal history category under the

Guidelines, the district court included criminal

history points for two battery "citations" that

Milquette received from the Green Bay Municipal

Court. By including these two battery citations,

the trial court calculated Milquette’s criminal

history to be III, which (when coupled with his

offense level) called for a sentencing range of

97 to 121 months imprisonment. 

 Milquette challenges the inclusion of the two

battery offenses. According to Milquette, if

these battery citations had been excluded, he

would have been sentenced with a criminal history

category of II which would have given him a

sentencing range of 87 to 108 months in prison.

We review the district court’s ruling on this

issue de novo. United States v. Redding, 104 F.3d

96, 98 (7th Cir. 1996); United States v. Booker,

71 F.3d 685, 688 (7th Cir. 1995).
 Section 4A1.2(c)(1) of the United States

Sentencing Guidelines governs whether a local

ordinance violation must be included in

calculating a defendant’s criminal history

category. Although it generally prohibits

counting local ordinance violations, sec.

4A1.2(c)(1) actually requires courts to include

ordinance violations that are also criminal

offenses under state law. Id.; United States v.

Staples, 202 F.3d 992, 996 (7th Cir. 2000);

Redding, 104 F.3d at 99; see also United States

v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995)

("local ordinance violations that are also

criminal offenses under state law are counted in

computing a defendant’s criminal history

score."). Application Note 12 of the Guideline

confirms our interpretation of sec. 4A1.2 (c)(1)

and provides:

12. Local Ordinance Violations. A number of

local jurisdictions have enacted ordinances

covering certain offenses (e.g., larceny and

assault misdemeanors) that are also violations of

state criminal law. This enables a local court

(e.g., a municipal court) to exercise

jurisdiction over such offenses. Such offenses

are excluded from the definition of local

ordinance violations in sec. 4A1.2(c)(1) and,

therefore, sentences for such offenses are to be

treated as if the defendant had been convicted

under state law.

 Here, Milquette was assigned criminal history

points for two separate acts of battery. In one

case, he hit a man in the back of the head with

a brick. In the other case, he punched an

unsuspecting man in the face. Both acts clearly

satisfy Wisconsin’s state law requirements for

criminal battery. Therefore, because Milquette’s

local ordinance citations were imposed for

conduct that also violated Wisconsin criminal

law, the district court properly counted these

offenses when calculating his criminal history

category.

 Stephen Putzlocker received a sentence of 120

months imprisonment, 60 months supervised

release, and a $500 fine. Putzlocker’s main

argument/2 on appeal is that the district court

should have deducted two points from his offense

level under U.S.S.G. sec. 3B1.2(b) because he was

a "minor participant" in the drug distribution

conspiracy. Putzlocker contends that he qualifies

as a minor participant because he was a low-level

courier who acted at the direction of others,

received no share of the profits, and whose

involvement with the conspiracy only lasted five

months. We review the district court’s conclusion

on this issue for clear error. United States v.

James, 113 F.3d 721, 731 (7th Cir. 1997).
 Section 3B1.2(b) of the Guidelines directs

district courts to decrease a defendant’s offense

level by two points if "the defendant was a minor

participant in any criminal activity."

Application Note 3 of that Guideline defines a

"minor participant" as "any participant who is

less culpable than most other participants, but

whose role could not be described as minimal." We

have previously held that "downward adjustments

to the base offense level for minor participants

are to be used infrequently." United States v.

Tanksley, 104 F.3d 924, 925 (7th Cir. 1997) (per

curiam). "When a defendant requests a decrease in

his offense level, he has the burden of

demonstrating that he is eligible for the

reduction by a preponderance of the evidence."

United States v. Nobles, 69 F.3d 172, 190 (7th

Cir. 1995).

 In denying Putzlocker’s request for a two point

reduction as a minor participant, Judge Clevert

observed:

it seems to me that Mr. Putzlocker is among other

parties who were essentially couriers in this

drug conspiracy. And it does not appear that Mr.

Putzlocker is dissimilar from others and,

therefore, not entitled to some kind of special

treatment as a minor participant . . . 

If we just go through the numbers here and look

at who was involved in this conspiracy, and if

you look at the persons named . . . Mr.

Putzlocker had people below him, by his own

acknowledgment, and others at his level. And I

see nothing in his level of participation that

would distinguish him in a way that he should be

given some kind of mitigation in this particular

case.

The facts in this case amply support the district

judge’s finding. Putzlocker made numerous trips

between Milwaukee and Green Bay to transport

drugs. And, although he was primarily a drug

courier, Putzlocker also played an active role

packaging and distributing the cocaine he had

brought to Green Bay. There were members of the

conspiracy who ranked below Putzlocker and whose

participation was far less important to the

success of the operation than was Putzlocker’s.

Finally, we note that the district judge had

carefully familiarized himself with the many

individuals involved in this conspiracy and was

in a good position to determine the extent of

each one’s participation. In short, there are

several facts in the record to support the

district court’s finding that Putzlocker was not

a minor participant in this drug conspiracy. We

therefore conclude that Judge Clevert did not
commit clear error by denying Putzlocker’s

request for a two point reduction.

 The last defendant whose case is before us,

Lyle Rivard, was sentenced to 130 months in

prison, 60 months supervised release, and ordered

to pay a $500 fine. At sentencing, the district

court found that Rivard was a minor participant

in the conspiracy and therefore reduced his

offense level by two points under U.S.S.G. sec.

3B1.2(b). However, the trial court denied a

government motion under U.S.S.G. sec. 5K1.1 to

deduct an additional point from Rivard’s offense

level for substantial assistance to the

government. Rivard complains that the district

court misapplied the Guidelines when it concluded

that he was a minor participant but

simultaneously denied the government’s motion for

a downward departure based on substantial

assistance. The government counters Rivard’s

appeal by arguing that we do not have

jurisdiction to review the district judge’s

discretionary denial of the sec. 5K1.1 motion.

 We lack jurisdiction to review a district

court’s refusal to depart downward where that

refusal resulted from a proper exercise of the

district judge’s discretion. United States v.

Winters, 117 F.3d 346, 348 (1997); United States

v. Franz, 886 F.2d 973, 978 (7th Cir. 1989).

Rivard claims that he is entitled to a downward

departure for substantial assistance because he

provided information about Sherard’s drug

distribution conspiracy as well as information

concerning a murder in Green Bay. The district

court denied the sec. 5K1.1 motion because it

found that Rivard did not provide any information

that the government did not already have

regarding the drug conspiracy. The trial court

reached this conclusion because Rivard did not

cooperate with the government until

"substantially late in the game" and, by that

time, the government had already arranged for

several other codefendants to testify against

Sherard. Similarly, Judge Clevert found that the

information Rivard provided regarding a murder in

Green Bay had not yet proven to be useful or even

connected to that crime. 

 There were certainly facts in the record to

support Judge Clevert’s conclusion that Rivard

did not provide useful information to the

government. By making this finding, the district

judge simply exercised his discretion and

determined that Rivard had not provided the

requisite substantial assistance necessary to

qualify him for a downward departure under

U.S.S.G. sec. 5K1.1. Because the denial of the

government’s motion for a downward departure

resulted from a proper exercise of Judge
Clevert’s discretion, we have no jurisdiction to

consider Rivard’s appeal.

 The decisions in Sherard’s, Milquette’s, and

Putzlocker’s cases are affirmed. Rivard’s appeal

is dismissed for lack of jurisdiction.

/1 Four other people were charged in the same

indictment, but their cases are not before us.

/2 Putzlocker also asserts that the district court

should not have included his municipal ordinance

violations when calculating his criminal history

category. We reject Putzlocker’s argument for the

same reasons we rejected Milquette’s argument--

the conduct Putzlocker was cited for also

violated Wisconsin state law. Furthermore, the

inclusion of these ordinance violations was

harmless because even if they had not been

counted in his criminal history score, Putzlocker

would remain a criminal history category VI.