## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3682

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Barbara J. Stewart, * [UNPUBLISHED] * Appellant. *

___________ Submitted: May 22, 1997 Filed: May 30, 1997

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

___________ PER CURIAM. Barbara Stewart pleaded guil ty to conspiring to distribute methamphetamine, in vio lation of 21 U.S.C. §§ 841(a)(1) and 846. Her presentence report (PSR ) re commendeda two-level increase to her offense level under U.S. Sentencin g Guidelines Manual § 3B1.1(c) (1995) based on her rol e in the offense. The PSR noted the adjus tment was assessed because Stewart "directed the activities" of two co

defendants, Delores Quarles and Mi chael Cacopardo, and involved her husband in the conspiracy.-2-

At sen tencing, Stewart objected, inter alia, to the PSR's factual statement s regardin g her role. The government attorney responded that "the testimony or th e evidence would have been that Delores Quarles and Michael Cacopardo were working with and for . . . Stewart in the distribution of the drugs." The district court denie d Stewart's objection and assessed the sec tion 3B1.1(c) adjustment, noting that its ruling was based upon the PSR. The court sentenced Stewart to 70 months imprisonment and four years supervised release. This appeal followed.
Stewart contends the district court erred in assessing the section 3B1.1(c ) adjust ment. Such an adjustment is appropriate where the defendant organized , supervised, led, or managed criminal act ivity that involved fewer than five participants and was not otherw ise extensive. The government must prove by a preponderance of the evidence that the adjustment applies. See United Stat es v. Frieberger , 28 F.3d 916, 919 (8th Cir. 1994), cert. denied , 513 U. S. 1097 (1995). We conclude that the district court erred in applying the section 3B1.1 adjustment here. See United States v

. Skorniak , 59 F.3d 750, 757 (8th Cir.) (standard of review), cert. denied , 116 S. Ct. 487 (1995) . Once Stewart challenged the factual statements in the PSR, the district court was required to make a finding on the basis of evidence, and the PSR and statements of counsel are not evidence. See United States v. Green , 41 F.3d 383, 386 (8th Cir

. 1994) (per curiam); United States v. Hammer , 3 F.3d 266, 271-7 2 (8th Cir. 1993), cert. denied , 510 U.S. 1139 (1994); United States v. Wise , 976 F.2d 393, 404 (8th Cir

. 1992) (en banc), cert. denied , 507 U.S. 989 (1993).
As to the o ther sentencing issues Stewart raises, we conclude first that th e di strict court did not clearly err in basing its drug-quantity finding on Stewart' s stipulation in the plea agreement. See United States v. Randolph , 101 F.3d 607, 609 (8th Cir. 1996). Second, c ontrary to Stewart's assertion, the safety-valve exception to mandatory minimum sentences under U.S. Sentencing Guidelines Manual § 5C1. 2 (1995) was inapplicable because Stewart's Guidelines range exceeded the five-yea r mandatory minimum se ntence. We note, however, that if on remand the district court-3-

finds that S tewart was not an organizer or leader under section 3B1.1, her Guidelines range w ould fall below the mandatory minimum, and she could be eligible for safetyvalve relief provided she satisfied the remaining criteria.
Because we are reman ding for resentencing, we conclude that it is unnecessary to address any downward-departure issues at this ti me. Finally, we decline to consider Stewart's arg ument regarding her plea, raised for the first time on appeal. See United States v. Dixon , 51 F.3d 1376, 1383 (8th Cir. 1995).
The sentence is vacated, and the case is remanded for resentencing consisten t with the views set forth in this opinion. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.