## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1650

___________ United States of America, * * Appellee, * * v. * * Edwin Obafemi Prosper, also known as * Jason Amos Knight, also known as * Richard Billy Ayers, also known as * Eric Amos Freeman, also known as * Steve Freeman, also known as Victor * Ricky Douglas, also known as Samuel * Batey, also known as Emmanuel Van * Appeal from the United States Ricks, * District Court for the * District of Minnesota. Appellant. * [UNPUBLISHED] *

--------------------- * * United States of America, * * Appellee, * * v. * * Edwin Obafemi Prosper, * * Appellant. *The Honorable Richard H. Kyle, United States District Judge for the District of 1 Minnesota. -2- ___________ Submitted: October 7, 1998 Filed: November 2, 1998

___________ Before WOLLMAN, HANSEN, and MURPHY , Circuit Judges.

___________ PER CURIAM. Pursuant to a written plea agreement, Edwin Obafemi Prosper pleaded guilty to one count of conspiring to launder money, in violation of 18 U.S.C. § 1956(h), and to one count of conspiring to defraud a financial institution, in violation of 18 U.S.C

. § 371. As relevant, Prosper objected to the presentence report & s two-level role-in-theoffense enhancement and to the calculation of his criminal history score. After a hearing, the district court overruled both objections, but granted Prosper & s motion for 1 a downward departure after concluding that Prosper & s criminal history score overstated the seriousness of his criminal history. The district court then sentenced Prosper to 40 month s & imprisonment and three years & supervised release, and ordered him to pa y $269,288 in restitution jointly and severally with his co-defendants. Prosper appeals, and we affirm. Prosper f irst challenges the district court & s order of restitution. We reject thi s challenge. Prosper stipulated in his plea agreement tha t the district court should impose restitutionin this amount, and a district court does not err in ordering restitution in an amount “agreed to by the parties in [the] plea agreement.” 18 U.S.C. § 3663(a)(3); see United States v. Bartsh , 985 F.2d 930, 933 (8th Cir. 1993) (no error for district court-3-

to order defendant to pay restitution that was within terms of plea agreement), cert
. denied , 510 U.S. 1170 (1994). Prosper next argues that the district court erred in assessing one criminal history point f or his prior conviction in Georgia for the misdemeanor offense of giving a false name to a police officer, because the conviction was uncounseled. We reject thi s argument as well, because imprisonment was not imposed for the false-name conviction; rathe r Prosper received a sentence of 12 months & probation, a fine, and five days & commu nity service. See U.S. Sentencing Guidelines Manual § 4A1.2, comment

. (bac kg & d) (1997) (“Prior sentences, not otherwise excluded, are to be counted in th e crimin al history score, including uncounseled misdemeanor sentences wher e imprisonm ent

was not imposed.”); Nichols v. United States , 511 U.S. 738, 748-4 9 (1994) (uncounseled misdemeanor conviction valid under Scott v. Illinois , 440 U.S. 367 (197 9), because no prison term was imposed, is also valid to enhance punishment at subsequent conviction); Scott v. Illinois , 440 U.S. 367, 373 (1979) (“actua l imprisonment” is line defining constitutional right to counsel). Prosper also argues that including the false-name conviction in his crimina l history score violates equal protection, because if he had been convicted in Minnesota, he would not have received under Minnesota law a sentence that would have resulted in criminal history points in a subsequent federal sentencing. This argument fails

. Under the Minnesota statutory scheme he could have received a sentence of at least 30 days & imp risonment for giving a false name to a peace officer--a sentence that woul d have triggered one criminal history point, just as his Georgia sentence of 12 months & probation did. See Minn. Stat. Ann. § 609.03 (West 1987) (for misdemeanor offense defendant can be sentenced to not more than 90 days’ imprisonment or to pay fine of $700, or both); U.S. Sentencing Guidelines Manual § 4A1.2(c) (1997) (for offense of giving false information to poli ce officer, sentence is counted only if it was at least one year probation or 30 days & imprisonment).-4-

Last, assuming that Prosper & s plea agreement stipulation does not foreclose his challe nge on appeal to the two-level aggravating role enhancement under U.S

. Sente ncing Guidelines Manual § 3B1.1(c) (1997), see United States v. Early , 77 F.3d 2 4 2, 244 (8th Cir. 1996) (per curiam), the district court did not clearly err in applying the enhancement based on testimony that Pros per controlled the disbursement of funds; that he received a larger share of the proceeds, as evidenced by the moneyhe sent to codefendant Carmichael Febabor versus the amount he kept; that he instructed Febabor on how to set up the s cheme, and set up all the accounts in Georgia; and that he set up post-office boxes and leased property in connection with the scheme. Moreover , Prosper adm

its in his brief that he recruited Febabor. See U.S. Sentencing Guidelines Manua l§ 3B1.1, comment. (n.4) (1997) (court should consider, among other things , defendant & s dec ision-making authority and degree of participation in planning offense, whether defendant recruited accomplices, whether defendant claimed gre ater profit from crime, and defendant & s control and authority over others); United States v. Mayer , 130 F.3d 338, 339-40 (8 th Cir. 1997) (§ 3B1.1(c) enhancement applies so long as criminal ac tivity involves more than one participant and defendant played coordinating o r organizing role); United States v. Johnson , 47 F.3d 272, 277 (8th Cir. 1995) (standard of review); United States v. Pierce , 907 F.2d 56, 57 (8th Cir. 1990) (per curiam ) (finding t hat recruitment of accomplices strongly supported managerial or supervisory role). The judgment is affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.