The H onorable Thomas M. Shanahan, United States District Judge for th e 1 District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1034

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Juan Carlos Neri, * * [UNPUBLISHED] Appellant. *

___________ Submitted: May 29, 1998 Filed: June 8, 1998

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

___________ PER CURIAM. Juan Carlos Neri pleaded guilty to conspiring to distribute metham phetamine and cocaine, and to possess the m with intent to distribute, in violation of 21 U.S.C. § 846. Departing upon the government & s motion to a point below the applicable Guideline s range and the statutory mandatory minimum sentence, the distric t court sentenced Neri 1 to 84 months imprisonment and five years supervised release. This appeal followed. After appellate counsel moved to with draw pursuant to Anders v. California , 386 U.S.-2-

738 (1967), we granted N eri permission to file a pro se supplemental brief, but he has not done so. We affirm.

In his Anders brief, counsel raises a challenge to the district court & s drug-quantity finding . Normally we review a district court & s factual findings at sentencing for clear error, and we review de novo the application of the Guidelin es to the facts. See United States v. Darden , 70 F.3d 1507, 1544 (8th Cir. 1995), cert. denied , 517 U.S. 1149 and cert. denied , 518 U.S. 1026 (1996). The Anders -brief argument, however, suffers from a number of deficiencies. First, the court & s drug-quantity finding is consistent with the pa rties & plea-agreement stipulation that Neri was to be held responsible for betwee n th ree and ten kilograms of methamphetamine, for a base offense level of 34. Se e United States v. Early , 77 F.3d 242, 244 (8th Cir. 1996) (per curiam) (defendant cannot challenge Guidelines application on appeal where defendant & s plea agreement expressly sets forth base offense level and type of controlled substance).
Second, th e issue raised here is reviewable only to the extent that Neri i s challengin ga quantity of drugs, which, when deducted from the amount the court attributed to his offense, would produce a Guidelines sentencing range below th e departure sentence Neri received. See United States v. Baker , 64 F.3d 439, 441 (8th Cir. 1995). Finally, even assuming the argument is not foreclosed and Neri & s sentence is reviewable, Neri did not challen ge his base offense level at sentencing, thus limiting us to reviewing the calculation of his base offense level for plain error, which we do not find. S ee U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A), (B) (1997 ) (defendant & s base offense level is calculated based on acts defendant commits, and also
on all rea sonably foreseeable acts and omissions of others in furtherance of jointl y undertaken criminal act

ivity); United States v. Montanye , 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (explaining plain-error review).-3-

Upon review of the record in accordance with Penson v. Ohio , 488 U.S. 75, 80 (1988), w e find no nonfrivolous issues. Accordingly, we affirm the judgment of th e district court. A true copy.

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