United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1549

___________ United States of America, * * Appellee, * * v. * * Derrick Eugene Coleman, also known * as Wobbley, * * Appellant. *

___________ Appeals from the United States District Court for the No. 97-1915 District of Minnesota.

___________ United States of America, * [PUBLISHED] * Appellee, * * v. * * Deanna Elaine Foster, * * Appellant. *

__________ No. 97-1916

__________-2-

United States of America, * * Appellee, * * v. * * Lana Ann Glass, also known as * Lana Ann Bellecourt, * * Appellant. *

__________ No. 97-1917

__________ United States of America, * * Appellee, * * v. * * Kathryn Chevette Wooten, * * Appellant. * *

__________ No. 97-2213

__________ United States of America, * * Appellee, * * v. * *The Honorable David S. Doty, United States District Judge for the District of 1 Minnesota. -3- Damon Laurice Whitmore, * * Appellant. *

___________ Submitted: December 26, 1997 Filed: January 6, 1998

___________ Before FAGG, BOWMAN and MURPHY, Circuit Judges.

___________ PER CURIAM.
In this consolidated direct criminal appeal, Derrick Eugene Coleman, Deann a Elaine Foster, Lana Ann Glass, Kathryn Chevette Wooten, and Damon Lauric e Whitm ore challenge the sentences imposed on them by the district court after the y 1 each pleaded guilty to conspiring to distribute cocaine base and to possessing it with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.

The ple a agreement and presentence report (PSR) of each defendant, excep t Colem an, contemplated receipt of a mitigating-role reduction under U.S. Sentencin g Guidelines Manual § 3B1.2 (1997). At sentencing, however, the district court found that each defendant was a

n “average participant” and therefore was not entitled to the reduction. After granting the government & s downward departure motions under 1 8 U.S.C. § 3553(e) and U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (1997), the-4-

cour t sentenced Coleman to 150 months imprisonment, Foster and Wooten to 7 0 months imprisonment each, Glass to 96 months imprisonment, and Whitmore to 204

mon ths imprisonment; each defendant also was sentenced to serve five year s supervised release following imprisonment.
On appeal, Glass and Wooten first argue that the court erred in failing to provide notice of its intent to deny them a mitigating-role reduction. We have previousl y rejected the notion that a district court is required to give advance notice of its intent to deny a mitigating-r

ole reduction, however, and we are bound by that decision. See United States v. Rodamaker , 56 F.3d 898, 903-04 (8th Cir. 1995).
Glass also argues that the district court erred by failing to make a factual finding

as to whether the conduct underlying a prior theft conviction, for which she received

one criminal history point, established that she had committed a theft. The recor d before us shows she merely argued--in the context of her U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1997) motion to depart downward on the basi s that her Category II criminal history overstated the seriousness of her past conduct--that the PSR & s des cription of the conduct belied the criminality of the offense; this was not a sufficiently specific objection to the fact of her conviction. See United States v. Flores , 9 F.3d 54, 55-56 (8th Cir. 1993) (absent objection alerting court to need for specifi c finding regarding challenged factual allegation in PSR, court may rely on PSR).
Next, all defendants argue that th e court erred in denying them a mitigating-role reductio n. We agree with the government that the district court & s denial of thes e mitigating-role reductions is unr eviewable, because they received sentences below the-5-

applicable Guidelines range with or without the requested reducti on. See United States v. Baker , 64 F.3d 439, 441 (8th Cir. 1995).
Speci fically, Coleman had a Guidelines imprisonment range of 235 to 29 3 months, based on a total offense level of 35 and a Category IV criminal history; h e would have had a Guideline s range of 168 to 210 months if he had received the threelevel mitigating-role reduction he requested at sentencing; and he was sentenced to 150 months imprisonment. Foster and Wooten had a Guidelines imprisonme nt range of 135 to 16 8 months, based on a total offense level of 33 and a Category I criminal history; they wo uld have had a Guidelines range of 87 to 108 months if they had received a four-level reduction (two levels for being minor parti cipants, and two levels under U.S. Sentencin g Guidelines Manual § 2D1.1, comment. (n.14) (1997)); and they wer e sentenced to 70 months imprisonment. Whitmore had a Guidelines impris onment range of 262 to 327 months, based on a total offense level of 35 and a Category V criminal history; he would have had a Guidelines range of 2 10 to 262 months if he had received

a t wo-level minor-participant reduction; and he was sentenced to 204 month s imprisonment. S ee U.S. Sentencing Guidelines Manual Ch.5, Pt.A (sentencing table) (1997).

As to Glass, t

he district court made an unreviewable discretionary decision not to depart under section 4A1.3 from her criminal history category, see United States v. Hall , 7 F .3d 1394, 1396 (8th Cir. 1993); and even assuming she received a four-level minimal-participant reduction as she had re quested--resulting in a total offense level of 31--her 96-month sentence is still below the 121-to-151 month Guidelines range that-6-

would have r

esulted, based on her Category II criminal history, see Baker , 64 F.3d at 441.

Foste r, Coleman, and Glass nonetheless argue their sentences are reviewable , relying on U nited States v. Schaffer , 110 F.3d 530, 532-34 (8th Cir. 1997). W e disagree. In Schaffer , we were asked to determine whether the district court ignored section 3553(e) & s directive to rely on the Guidelines in calculating reduced sentences, when the court used the 60-month mandatory minimum sentence as the starting point for its downward departure in sentencing the defendant for an 18 U.S.C. § 924(c)(1) conviction. The defendant in tha t case, who also had pleaded guilty to a drug offense, argued that the district court instead should have applied a two-level enhancemen t under U.S. Sen tencing Guidelines Manual § 2D1.1(b)(1) (1997) to his drug sentence, departed from that point, and treated the consec utive 60-month sentence as if it did not exist. See Schaffer , 110 F.3d at 531-534 (holding 60-month mandatory minimu m sentence was proper departure point following grant of § 3553(e) motion). Here , however, there is no allegation th at the district court failed to rely on the Guidelines in calcula ting defendants & reduced sentences; defendants simply disagree with how th e Guidelines were applied.
Finally, Coleman argues that the court erred by failing to s entence him below the statutory minimum, and by disproportionately sentencing him as compared to mor e culpable co-conspirators. The sentencing-disp arity argument is unreviewable, because itre quires us to evaluate the extent of the district court & s downward departure. Se e UnitedStates v. Goodwin , 72 F.3d 88, 91 (8th Cir. 1995) (extent of downwar d departure is unreviewable; declining to consider sentencing disparity between two-7-

defendants after both received downward departures for their respective cooperation, because appeal essentially challenged rela tive extent of downward departures); United St ates v. Albers , 961 F.2d 710, 712-13 (8th Cir. 1992) (defendant may not appea l substantial-assistance downward departure simply because he is dissatis fied with extent of departure; refusing to infer district court did not adequately consi der co-conspirators & activit ies and sentences when record clearly reflected ready availability of suc h inf ormationand defendants benefitted from greatly reduced sentences). We als o concl ude that, in sentencing Coleman, the court was not required to depart below the statutory mandatory minimum. See Schaffer , 110 F.3d at 533 (noting court & s grant of § 3553(e) motion “permit[s]” sentence below statutory minimum). Finally, the letters Coleman has submitted on appeal do not demonstrate the district court unfairl y punished him.
Accordingly, we affirm the judgment of the district court.
A true copy.

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