The Honorable H. Dean Whipple, United States District Judge for the Western 1 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2460

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri Robert John Michael Baber, * * Appellant. *

___________ Submitted: November 17, 1998 Filed: December 8, 1998

___________ Before McMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.

___________ McMILLIAN, Circuit Judge. Robert John Michael Baber appeals fr om a final judgment entered in the United States District Court for the Western District of Missouri, after a jury trial, finding him 1 guilty on one count of conspiracy to distribute 100 grams or more of me thamphetamine, seven counts of distribution of methampheta mine, one count of distribution of cocaine, and one count of carrying a firearm dur ing and in relation to a drug trafficking offense. Baber was sentenced to 97 months imprisonment on the drug trafficking offenses and-2-

a consecutive 60 months imprisonment on the firearm offense, five years of supervised release, and $1,000.00 in special assessments. United States v. Baber , No. 4:97CR00149-001 (W.D. Mo. May 22, 1998) (judgment). Jurisdiction was proper in the d istrict court based on 18 U.S.C. § 3231. Jurisdiction is proper in this cour t based upon 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For reversal, Baber first argues that the district court erred in refusing to depart downwar d under the guidelines based on a theory of sentencing entrapment o r se ntencing manipulation. Baber maintains that law enforcement officers improperl y engaged hi m undercover drug sales, well after achieving their legitimate investigative goals, for the sole purpose of “ratcheting up” his sentence under the guidelines. Brief for Appellant at 19 (citing United States v. Shepard , 4 F.3d 647, 649 (8th Cir. 1993) (d iscussing sentencing manipulation and entrapment), cert. denied , 510 U.S. 120 3 (1994)). In particular, he contends that the officers had already ascertained th e identities of his coconspirators and his source o f supply on or before April 1, 1997, yet they continued to purchase drugs from him until August of 1997. Baber claims that , as a consequence, his base offense level was increased by two levels (without which his imprisonment range under the guidelines would have been 63 to 78 months).
It was B aber’s burden to show that sentencing entrapment or sentencin g manipulationoccurred. United States v. Stavig , 80 F.3d 1241, 1245 (8th Cir. 1996). If it did occur, a downward departure would be warranted. Id. at 1246. Because the source of Baber’s sentencing argument is the due process clause, “[t]h is is not the usual case in wh ich a defendant asks us to review an unreviewable failure to depart. ” Shepard , 4 F.3d at 649 . We have carefully reviewed the record and the arguments on appeal and conclude that Baber has not shown that the officers engaged in the late r drug transactions solely to enhance his potential sentence. To the contrary, th e evidence supports the conclusion that the officers engaged in an ongoing series of drug purchases from Baber in an effort to gain his confidence and identify as man y coconspirators as possibl e, as well as his source of supply. This court has recognized-3-

that law enfo rcement officers “must be given leeway to probe the depth and extent of a criminal enterpr

ise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy.” United States v. Calva , 979 F.2d 119, 123 (8th Cir. 1992); see also United States v. Barth , 990 F.2d 422, 424 ( 8th Cir. 1993) (“‘courts should go very slow ly before staking out rules that will deter government agents from the pro per performance of their investigative duties’”) (quoting United States v

. Connell , 9 60 F.2d 191, 196 (1st Cir. 1992)). Accordingly, we hold that the distric t court did not err in refusing to grant Baber a downward departure.
Baber also argues on appeal that he should have been granted judgment o f acquittal on Count 11 of the indictment, charging him with using or carrying a firearm during and in relation to the drug trafficking offense, in viola tion of 18 U.S.C. § 924(c). Baber maintains that the governme nt failed to present sufficient evidence to prove the offense because the government did not introduce the firearm into evidence. W e disagree.
The gov ernment presented evidence at trial that Baber had a firearm on hi s person during an undercover methamphetamine transaction that occur red on August 18, 1997. The undercover detective to whom Baber sold the methamphetamine testified th atshe saw a firearm secreted in Baber’s waistband during the transaction. In th e conversation b etween Baber and the undercover officer, which was captured on tape, Baber referred

to the weapon as his “little Beretta” and indicated that he would shoot any police officers who might show up during the transaction. That evidence, whe n viewed i n the light most favorable to the government, was sufficient to convince th e jury beyond a reasonable doubt that Baber carried a firearm during and in relation to a drug trafficking offense. Accordingly, the district court did not err in denying Baber’s motion for judgment of acquittal. The judgment of the district court is affirmed. See 8th Cir. R. 47B.-4-

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