## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-3860

___________ United States of America, *
* Appellee, * Appeal from the United States * District Court for the v. * District of North Dakota.
* Clifford Scott Eaton, * [UNPUBLISHED]
* Appellant. *

___________ Submitted: June 13, 2011 Filed: July 12, 2011

___________ Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

___________ PER CURIAM.
In 2009, a federal gr and jury returned an indictment charging Clifford Eaton with one count of conspiracy to possess w ith intent to distribute methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to 21 U.S.C. § 851, the Government filed notice of its intent to es tablish two prior fel ony controlled-substance convictions, subjecting Eaton to a mandato ry sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A). Subsequently, Ea ton and the Government entered a plea agreement. They also entered a plea agr eement supplement in which Eaton agreed “to fully cooperate with the United States . . . in any investigation re lated to or arising from these charges,” and the Government agreed that if Eaton’s “cooperation has1 The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota.
-2- provided substantial assistance . . . in th e investigation or prosecution of another person who has committed an offense,” it w ould file a motion to depart below the statutory minimum. The district court 1 accepted Eaton’s plea of guilty.
Before sentencing, the Government filed a motion for downward departure based on substantial assistance, pur suant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The Government reported that Eaton had “provided in formation regarding the conduct of himself and [his] co-defendant” and had “also pr ovided information on an assault case in Stutsman County and theft of ATMs in Grand Forks County.” However, the Government noted that Eaton’ s assistance had not resulted in the filing of any criminal charges. Based on these considerations, the Government recommended a sentence of 344 months’ imprisonment. Eaton filed a response, requesting a greater reduction, since he had done “exactly what the government asked” and his co-defendant had receive d a greater reduction for less assistance.
At sentencing, the court calculated an advisory guidelines range of 151 to 181 months’ imprisonment, but it found that Eat on previously had been convicted of two felony controlled-substance offenses, subjec ting him to a mandatory life sentence. It then proceeded to consider the Government’s motion fo r downward departure. The court noted that in determining the amount of the departure it only could consider the factors listed in § 5K1.1(a) and found that “all five of those factors . . . weigh in favor of Mr. Eaton.” Accordingly, the court reduced Eaton’s sentence to 240 months—over 100 months below the Government’s recommendation—less 17 months’ credit for time served, yielding a net sentence of 223 months. The court noted that although Eaton’s co-defendant had received a great er reduction, “I don’t believe that you should be treated like [him] because there’s a significant disparity in criminal history categories and a significant difference in th e mandatory minimum that was triggered-3- in this case as a result of that criminal histor y, so there is certainly a legal basis to treat the two of you differently.” Eaton appeals, arguing that by considering his criminal history, the court based the amount of the substantial-assistance reduction on a nonassistance-related consideration.

“[T]o reflect a defendant’s substantial assistance in the investigation or prosecution of another person,” 18 U.S.C. § 3553(e) grants a sentencing court “[l]imited authority to impose a senten ce below a statutor y minimum . . . in accordance with the guidelines.” Section 5K 1.1 of the guidelines indicates that the amount of such a reduction should be de termined by considering the following assistance-related factors:
(1) . . . the significance and usefulness of the defendant’s assistance . . . ; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3 ) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant’s assistance.
“Where a court has authority to senten ce below a statutory minimum only by virtue of a government motion under § 3553(e), the reduction below the statutory minimum must be based exclusively on assi stance-related considerations.” United States v. Burns , 577 F.3d 887, 894 (8th Cir. 2009) (en banc) (quoting United States v. Williams , 474 F.3d 1130, 1130-31 (8th Cir. 2007)). More over, “after reduci ng a sentence based on the factors set forth in 18 U.S.C. § 3553(e), a district court may not reduce the sentence further based on factors, other th an assistance, set forth in 18 U.S.C. § 3553(a).” Id.
Ordinarily, we would review the clai m that the district court relied on nonassistance-related considerations in de termining the amount of a section 5K1.1 departure de novo

. See Williams , 474 F.3d at 1131. Howeve r, Eaton failed to object-4- to this alleged error before the di strict court, thereby forfeiting it. See United States v. Pirani , 406 F.3d 543, 549 (8th Cir. 2005) (en banc). Accord ingly, we review the claim for plain error and will reverse only if Eaton can show “(1) an error, (2) that was ‘plain,’ [and] (3) ‘affects subs tantial rights,’ and [that] (4) ‘the error seriously affects the fairness, integrity or public reput ation of judicial proceedings.’” United States v. Rush-Richardson , 574 F.3d 906, 910 (8th Cir. 2009) (quoting United States v. Olano , 507 U.S. 725, 735-36 (1993)).
Regardless of whether the district court committed an error that was plain, we conclude that Eaton has failed to show that the alleged e rror affected his substantial rights. To satisfy this prong, Eaton mustestablish “a reasonable probability that, but for [the error claimed], th e result of the proceeding would have been different.” See United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004) (alteration in original) (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)). Eaton has made no argument that the alleged error affected th e outcome of the pro ceeding. Likewise, our own review of the record discloses no indica tion that, absent the alleged error, Eaton would have received a more favorable senten ce. The district court specifically found that the sentence was sufficient but not great er than necessary. The court mentioned Eaton’s criminal history only after it had co rrectly identified and discussed the 5K1.1 factors and determined its sentence and only in the context of rebutting Eaton’s disparity argument. Under these circum stances, any suggestion that Eaton was prejudiced by the alleged erro r would be merely speculativ e, and “[w]here the effect of the error on the result in the district c ourt is uncertain or indeterminate—where we would have to speculate—the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error.” United States v. Bain , 586 F.3d 634, 641 (8th Cir. 2009) (quoting Pirani , 406 F.3d at 553).2We deny the Government’s motion to di smiss the appeal as within the appeal waiver of Eaton’s plea agreement as moot.
-5- Accordingly, we affirm. 2

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