1The HONORABLE FERNANDO J. GAITAN, JR., United States District

Judge for the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4096

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United States of America, *

 *

Appellee, *

 *

v. * Appeal from the United States

 * District Court for the

Anthony C. Barrett, * Western District of Missouri. 

 *

Appellant. *

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 Submitted: November 18, 1998

 Filed: April 13, 1999

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Before LOKEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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LOKEN, Circuit Judge.

Anthony C. Barrett pleaded guilty to conspiring with members of his family

and others to distribute cocaine base and other illegal drugs in violation of 21 U.S.C.

§ 846. At sentencing, over Barrett’s objections, the district court1 imposed upward

Guidelines adjustments based upon findings that Barrett was a supervisor or manager

in the conspiracy and possessed a firearm. The court declined to depart downward

based upon Barrett’s cooperation because the government made no substantial
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assistance motion. The court sentenced Barrett to 360 months in prison, the bottom

of his Guidelines range. He appeals that sentence. We affirm.

I. Role in the Offense Adjustment. The Guidelines authorize a three-level

increase, “If the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(b). We review the district court’s determination to

impose that adjustment for clear error. See United States v. Ayers, 138 F.3d 360,

363-64 (8th Cir.), cert. denied, 119 S. Ct. 219 (1998).

At sentencing, whether the conspiracy included five or more participants was

not a disputed issue. Barrett did not object to paragraphs in his presentence report

identifying more than five participants. In addition, at the sentencing hearing, the

government read into the record testimony from the trial of Barrett’s co-defendants

that identified more than five participants. Barrett did not object to this testimony,

and its admission was not plain error. See United States v. Parker, 989 F.2d 948,

951-52 (8th Cir.), cert. denied, 510 U.S. 849 (1993). 

While not disputing the conspiracy had many participants, Barrett did contest

whether he had managed or supervised other participants. At the sentencing hearing,

an FBI Special Agent testified that Barrett controlled his sister, Sonja Barrett, and

Clarence Brooks when they assisted Barrett in the distribution of Endo, a high priced

form of marijuana. Barrett testified in rebuttal, denying any connection with Brooks

but admitting he gave Sonja drugs and “supervised or assisted” her in selling drugs.

To warrant a § 3B1.1(b) increase, a defendant need only have managed or supervised

at least one other participant. See U.S.S.G. § 3B1.1, comment n.2; United States v.

Pena, 67 F.3d 153, 156-57 (8th Cir. 1995). The evidence at the sentencing hearing

was sufficient to support the district court’s finding that Barrett exercised enough

control over at least one other conspirator to warrant the three-level increase.
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Compare Ayers, 138 F.3d at 364, with United States v. Del Toro-Aguilera, 138 F.3d

340, 342-43 (8th Cir. 1998). 

II. Downward Departure for Substantial Assistance. The plea agreement

recited that Barrett would “provide full and complete cooperation,” that he had not

yet provided substantial assistance, and that the government would make a downward

departure motion under U.S.S.G. § 5K1.1 if it determined, in its sole discretion, that

Barrett provided substantial assistance. At sentencing, the government declined to

make that motion, and the district court denied Barrett’s request to depart downward

because of his allegedly full cooperation. When a plea agreement preserves the

government’s discretion in this regard, “the court is without authority to grant a

downward departure for substantial assistance absent a government motion.” United

States v. Kelly, 18 F.3d 612, 617 (8th Cir. 1994). The government’s decision not

to make that motion is reviewable only if the defendant makes a “substantial

threshold showing” of improper motive. Wade v. United States, 504 U.S. 181, 186

(1992); see United States v. Romsey, 975 F.2d 556, 557-58 (8th Cir. 1992). Barrett

has made no such showing; he simply disagrees with the government’s assessment

of his truthfulness and the extent to which his cooperation assisted the government.

III. Other Adjustments. Barrett also objected to the district court’s drug

quantity determination and its decision to impose a two-level increase under U.S.S.G.

§ 2D1.1(b)(1) because he possessed one or more firearms. In the plea agreement,

Barrett stipulated the conspiracy involved over 1.5 kilograms of cocaine base, the

quantity used by the district court to determine his base offense level, and he agreed

that he would be subject to the two-level enhancement under § 2D1.1(b)(1). A

defendant may not challenge an application of the Guidelines to which he agreed in

a plea agreement (unless he proves the agreement invalid or succeeds in withdrawing

from it). See United States v. Early, 77 F.3d 242, 244 (8th Cir. 1996). Moreover,

there was testimony at the sentencing hearing supporting the drug quantity
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determination and a finding that Barrett possessed a firearm. Thus, the district court’s

determinations were not clearly erroneous. 

IV. Conclusion. Before we requested oral argument, Barrett’s appellate

counsel submitted his brief pursuant to Anders v. California, 386 U.S. 738 (1967).

Accordingly, we have reviewed the entire record in the manner prescribed in Penson

v. Ohio, 488 U.S. 75, 80 (1988). Finding no nonfrivolous issues other than those we

have resolved in this opinion, we affirm the judgment of the district court and grant

counsel&s motion to withdraw.

A true copy.

Attest:

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