___________ No. 95-3683

___________ United States of America, * * Appellee, * * v. * * Enrique Manjarrez-Padilla, also * known as Paco, also known as * Francisco Mendoza, * * Appellant, *

___________ Appeals from the United States District Court for the No. 95-3685 Western District of Missouri.

___________ United States of America, * [UNPUBLISHED] * Appellee, * * v. * * Ramon Godoy Galindo, * * Appellant. *

___________ Submitted: May 16, 1996 Filed: June 11, 1996

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

___________ PER CURIAM.
Enrique Manjarrez-Padilla, Ramon Godoy Galindo, and other s transported various c ontrolled substances from California to Kansas City, Missouri, and distributed them between March 1993 and

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Dec ember 1994. Based on pleas of guilty, both were convicted on dru g charges and Manjarrez-Padilla was convicted on afirearms charge. In this consolidated appeal, each defendant appeals his sentence. For the reasons set forth below, we affirm as to Galindo's appeal, and remand ManjarrezPadilla's firearm conviction for further consideration.

MANJARREZ-PADILLA

Manjarrez-Padilla pleaded guilty to conspiracy to distribut e mariju ana, cocaine, and methamphetamine, in violation of 21 U.S.C. § § 841 (a)(1) and 846, "using" a firearm during and in relation to a dru g traffic king offense, in violation of 18 U.S.C. § 924(c), and crimina l forfeit ure, in violation of 21 U.S.C. § 853. In the plea agreement th e government agreed to file substantial-assistance departure motions under U.S.S.G. § 5K1.1, p.s., and 18 U.S.C. § 3553(e), if deemed appropriate

. The plea agreement al so provided that the district court could not reduce Man jarrez-Padilla's sentence below seven years (84 months). At the Ma y 1995 plea hearing, the district court accepted M anjarrez-Padilla's plea of guilty to the section 924(c) charge pursuant to the government's assertion it could prove the firearm was found near a scale and drug proceeds.

At Manjarrez-Padilla's October sente ncing hearing, the court granted th e government's previously-filed substantial-assistance motion unde r section 5K1.1 for the drug offense, and its motions under sections 5K1.1 and 355 3(e) for the firearm offense. As to the drug offense, the cour t departed downward to the statutory mandatory minimum and sentence d Manjarrez-Padilla to 120 months imprisonment. As to the firearm offense, the court sentenced Manjarrez-Padilla to 60 mont hs imprisonment; the court depart ed downward by ordering the firearm sentence to be serve d concurrently--rather than consecutively--to the drug sentence. The court sentenced Manjarrez-Padilla to a total of five years

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supervised release.

On appeal, appointed counsel filed a brief pursuant to Anders v

. California , 386 U.S. 738 (1967). The Anders brief suggests that pursuant to the plea agreement, Manjarrez-Padilla could not be sentenced to mor e than 84 months imprisonment. Although granted leave, Manjarrez-Padilla ha s not filed a supplemental brief.

We con clude the issue raised in the Anders brief is meritless , because the plea agreement did not provide for a specific sentence, bu t rather set forth the parties' stipulation that under no circumstances woul d Manjarrez-Padilla receive a sentence less than 84 months. In accordance with Penson v. Ohio , 488 U.S. 75, 80 (1988), we have reviewed the record to look for any nonfrivolous issues. In light of the Supreme Court' s December 1995 decisio n in United States v. Bailey , 116 S. Ct. 501 (1995), we conclude such an issue is presented.

In Baile y , the Supreme Court held that a section 924(c) convictio n for "use" of a firearm during and in relation to a drug trafficking offens e requires proof of "active employment of the firearm." Id. at 506. Becaus e the distr ict court has not had an opportunity to consider the effect o f Bailey on Manjarrez-P adilla's section 924(c) conviction, we remand so the district court may do so. Finally, we have found no other nonfrivolou s issues.

GALINDO

Galind o pleaded guilty to conspiracy to distribute marijuana , cocaine, and methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and criminal forfeiture, in violation of 21 U.S.C. § 853. A t sentencing, Galindo objected to the probation officer's failure t o
re commend an additional one-level reduction for acceptance o f responsibilityunder U.S.S.G. § 3E1.1(b)(2), and a mitigating-rol e reduction under U.S.S.G. § 3B1.2. The court

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overruled Galindo's o bjections, adopted the PSR, and sentenced Galindo to 151 months imprisonment and five years supervise d release, and ordered him to pay a $2,000 fine. On appeal, Galindo argues that the district court erred by denying him an additional point for acc eptance of responsibility, and by denying him a mitigating-role reduction b ased solely on a dismissed firearm count.

The Guidelines permit a district court to reduce a defendant's offens e level by two levels "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense." U.S.S.G. § 3E1. 1(a). Section 3E1.1(b)(2) permits a further one - level reduction when a defendant qualifies for the two-level reduction u nder section 3E1.1(a), the defendant's offense level is 1 6 or greater, and "the defendant has assisted authorities in th e inv estigation or prosecution of his own misconduct by . . . timel y notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." H ere, Galindo did not plead guil tyuntil the eve of trial, thus forcing the government to expen d signi ficant time and expense in preparing for trial. We disagree wit h Galindo that his plea was timely because it was entered as soon as th e district court ruled on his motion to dismiss on e count of the indictment. See Un ited States v. Narramore , 36 F.3d 845, 846 (9th Cir. 1994) (n o entitlement to § 3E1.1(b)(2) reduction where def endant entered guilty plea after district court ruled on motion to dismiss indictment "on the eve of trial," and government had prepared for trial); United States v. McQuay , 7 F. 3d 800, 803 (8th Cir. 1993). Accordingly, we find no error in th e denial of the additional point. See United States v. Thompson , 60 F.3 d 514, 517 (8th Cir. 1995) (no clear error in denial of § 3E1.1(b)(2 ) red uction where defendant did not timely notify government of intent t o plead guilty and government "had essentially already completed it s preparations for trial").

### -5- Se ction 3B1.2 as a whole permits "adjustment for a defendant wh o plays a part in committing the offense that makes him substantially less culpab le than the average participant." U.S.S.G. § 3B1.2, comment

. (backg'd.). A senten cing court must consider the defendant's role in the entire conspiracy. See United States v. Westerman , 973 F.2d 1422, 1427-28 (8th Cir. 1992).

We reject Galindo's assertion that the district court could no t consider Galindo's re levant conduct. See United States v. Lucht , 18 F.3d 541, 556 (8th Cir.) ( defendant's role in offense is based on all relevant conduct, not solely on act of conviction), cert. denied , 115 S. Ct. 36 3 (1994). Moreover, the record shows that Galindo was an active participant in the conspiracy which involved a significant quantity of drugs

. Accordin gly, we find no error in the denial of the mitigating-rol e reduction. See United States v. Abanatha , 999 F.2d 1246, 1250 (8th Cir. 1993) (sentencing court properly denied § 3B1.2(b) reduction wher e defendant was active participant in drug conspiracy), cert denied , 114 S. Ct. 1549 (1994); United States v. Garvey , 905 F.2d 1144, 1146 (8th Cir

. 1990) (per curiam) (district court can deny mitigating-role reduction base d solely on presence of significant amount of drugs).

Thus, we affirm Galindo's sentence. See United States v. Lubli n , 981 F.2d 367, 370 (8th Ci r. 1992) (affirming denial of Chapter 3 reduction on oth er ground "clearly supported" by the record); cf. Williams v. Unite d States , 503 U.S. 193, 203 (1992) (remand required when district cour t misapplies Guidelines , unless reviewing court concludes on basis of whole record that error was harmless).

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Attest:

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