_____________ No. 95-3389MN

_____________ United States of America, * * Appellee, * * v. * * Aaron John Moog, * * Appellant. *

_____________ No. 95-3417MN

_____________ United States of America, * * Appellee, * Appeals from the United States * District Court for the District v. * of Minnesota. * Duane Dorvan Gilleshammer, * [UNPUBLISHED] * Appellant. *

_____________ No. 95-4184MN

_____________ United States of America, * * Appellee, * * v. * * James Dillon Smith, * * Appellant. *

_____________ Submitted: July 23, 1996 Filed: August 2, 1996

_____________ Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

### -2- _____________ PER CURIAM.

Aaron John Moog, Duane Dorvan Gilleshammer, and James Dillon Smit h appeal from the guidelines sentences imposed by the district cour t following their guilty pleas to drug charges. We affirm.
I. Aaron John Moog
Moog pl eaded guilty to distributing cocaine. Moog admitte d distributing three kilograms of cocaine, and sti pulated he was accountable under U.S.S.G. § 1B1.3 for five to fifteen kilograms of cocaine. Moo g arg ues the district court should have granted him a four-level minimal

partic ipant decrease under U.S.S.G. § 3B1.2, rather than a three-leve l decrease, because he was among the least culpabl e of those involved in the criminal activity at issue. We conclude the district court did not clearl y err in denying Moog a four-level decrease. See United States v. Rice , 49 F.3d 378, 383 (8th Cir.) (standard of review), cert. denied , 115 S. Ct
. 2630 (1995 ). Even assuming Moog acted as a drug courier on only on e occasion, he was involved with a significant amount of cocaine. Unite d States v. Garvey , 905 F.2d 1144, 1146 (8th Cir. 1990) (per curiam).
II. Duane Dorvan Gilleshammer
Gilleshammer pleaded guilty to possessing cocaine with intent t o distribute. Gilleshammer contends he is eligible for relief under U.S.S.G
. § 5C1.2, which requires a district court to sentence a defendant within th e applicable guidelines range regardless of any statutory minimum sentence if the court finds the defendant meets all of the conditions listed i n § 5C1.2(1)-(5). To e stablish his eligibility, Gilleshammer must not have more than one criminal

### -3-

histor ypoint "as determined under the sentencing guidelines." Id
. § 5C1.2(1). Gilleshammer was assigned two crimin al history points under U.S.S.G. § 4A1.1 in his presentence report. Finding that the resulting Category II criminal history overstated the seriousness of Gilleshammer's past crimina l conduct or the likelihood of his committing other crimes, the distric t court d eparted downward under U.S.S.G. § 4A1.3 and calculate d Gilles hammer's guidelines range based on a Category I criminal history
. The resulting sentencing range of 46 to 57 month s, however, was subject to a sta tuary mandatory minimum sentence of 60 months. See U.S.S.G . § 5G1.1(b) (where statutory minimum sentence exc eeds the guidelines range, statutoryminimum sentence becomes guidelines sentence). At sentencing, the district court refused to apply § 5C1.2 to sentence Gilleshammer withi n the 46-to-57 month range. Reviewing de novo, we agree with the district court that Gilles hammer is not entitled to relief under § 5C1.2. See Un ited States v. Polanco , 53 F.3d 893, 895 (8th Cir. 1995) (standard of review), cert. denied , 116 S. Ct. 2554 (1996). As the commentary to § 5C1.2 explains, more than on e crimina l history point, as determined under the sentencing guideline s "means more than one criminal history point as determined under § 4A1.1." U.S.S.G. § 5C1.2 n.1. The district court's deci sion to treat Gilleshammer as a Categ ory I offender under § 4A1.3 does not change the fact tha t Gilleshammer had two criminal history points under § 4A1.1. See Unite d States v. Resto , 74 F.3d 22, 28 (2d Cir. 1996) (rejecting argument tha t defe ndant who had more than one criminal history point qualified fo r § 5C1.2 r elief on ground that district court departed under § 4A1.3 an d treated defendant as if he had only one criminal history point); Unite d States v. Valencia-Andrade , 72 F.3d 770, 773-74 (9th Cir. 1995) (same).

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III. James Dillon Smith

Before pleading guilty to aiding and abetting the distribution o f cocaine, Smith moved to dismiss the indictment o n double jeopardy grounds. Smith contended an earlier administrative forfei ture of his property under 21 U.S.C. §§ 881(a)(4) and (a)(6) was punishment and barred hi s prosecution. The district court denied the motion. Smith's doubl e jeopardyargument is foreclosed by the contrary holdings of the Unite d States Supreme Court and this court. See UnitedStates v. Ursery , No. 95- 345, 64 U.S.L.W. 4565, 4572 (U.S. June 24, 1996) (a civil forfeiture under § 881(a)(6) is not punishment for double jeopard y purposes); United States
v. One 1970 36.9' Columbia Sailing Boat , No. 95-3158, 1996 WL 403038, at *3 (8th Cir. July 19, 1996) (same under § 881(a)(4)).
Smith raises two other issues. First, Smith--who received a two

level aggravating-role enhancement under U.S.S.G . § 3B1.1(c)--contends the district court improperly failed to grant his request for disclosure of an y relevant portions of his codefendants' presentence reports. Smith contend s the in formation would support his theory that the government ha d inconsistentlyapplied the same evidence to assign differing role levels among t he codefendants. Smith contends this inconsistent applicatio n created an illegal sentencing disparity. The se ntencing court rather than the government, however, was responsible for the sentencing adjustment s made in each case, and Smith cannot rely on his codefendants' sentences as a yardstick for his own. See United States v. G ranados , 962 F.2d 767, 774 (8th Cir. 1992). To the extent Smith is challenging the aggravating-role enhancem ent, we conclude the district court did not clearly err i n assessing the enhancement, because the evidence showed Smith supervised at least one other person. See United States v. Hazelett , 80 F.3d 280, 284 (8th Cir. 1996).

### -5- Finally, Smith challenges the district court's refusal to depar t dow nward under U.S.S.G. § 5K2.0. Smith contends he was entitled to a depart ure because his guilty plea influenced other defendants to plea d gu ilty, and because of the alleged disparity between his and hi s codefe ndants' sentences. Because we conclude the district court wa s clearly aware of its authority to depart and chose not to do so, we may no t review th is claim. See United States v. Jenkins , 78 F.3d 1283, 1290-9 1 (8th Cir. 1996). We thus affirm the sentences imposed by the district court.
A true copy.

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