_____________

No. 95-3389MN

_____________

United States of America, *

*

Appellee, *

*

v. *

*

Aaron John Moog, *

*

Appellant. *

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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Duane Dorvan Gilleshammer, * [UNPUBLISHED]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.
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_____________

PER CURIAM.

Aaron John Moog, Duane Dorvan Gilleshammer, and James Dillon Smith

appeal from the guidelines sentences imposed by the district court

following their guilty pleas to drug charges. We affirm.

I. Aaron John Moog

Moog pleaded guilty to distributing cocaine. Moog admitted

distributing three kilograms of cocaine, and stipulated he was accountable

under U.S.S.G. § 1B1.3 for five to fifteen kilograms of cocaine. Moog

argues the district court should have granted him a four-level minimalparticipant decrease under U.S.S.G. § 3B1.2, rather than a three-level

decrease, because he was among the least culpable of those involved in the

criminal activity at issue. We conclude the district court did not clearly

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 one

occasion, he was involved with a significant amount of cocaine. United

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 to

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 the

applicable guidelines range regardless of any statutory minimum sentence

if the court finds the defendant meets all of the conditions listed in

§ 5C1.2(1)-(5). To establish his eligibility, Gilleshammer must not have

more than one criminal
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history point "as determined under the sentencing guidelines." Id.

§ 5C1.2(1).

Gilleshammer was assigned two criminal 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 criminal

conduct or the likelihood of his committing other crimes, the district

court departed downward under U.S.S.G. § 4A1.3 and calculated

Gilleshammer's guidelines range based on a Category I criminal history.

The resulting sentencing range of 46 to 57 months, however, was subject to

a statuary mandatory minimum sentence of 60 months. See U.S.S.G.

§ 5G1.1(b) (where statutory minimum sentence exceeds the guidelines range,

statutory minimum sentence becomes guidelines sentence). At sentencing,

the district court refused to apply § 5C1.2 to sentence Gilleshammer within

the 46-to-57 month range.

Reviewing de novo, we agree with the district court that Gilleshammer

is not entitled to relief under § 5C1.2. See United 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 one

criminal history point, as determined under the sentencing guidelines

"means more than one criminal history point as determined under § 4A1.1."

U.S.S.G. § 5C1.2 n.1. The district court's decision to treat Gilleshammer

as a Category I offender under § 4A1.3 does not change the fact that

Gilleshammer had two criminal history points under § 4A1.1. See United

States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996) (rejecting argument that

defendant who had more than one criminal history point qualified for

§ 5C1.2 relief on ground that district court departed under § 4A1.3 and

treated defendant as if he had only one criminal history point); United

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 of

cocaine, Smith moved to dismiss the indictment on double jeopardy grounds.

Smith contended an earlier administrative forfeiture of his property under

21 U.S.C. §§ 881(a)(4) and (a)(6) was punishment and barred his

prosecution. The district court denied the motion. Smith's double

jeopardy argument is foreclosed by the contrary holdings of the United

States Supreme Court and this court. See United States 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 jeopardy 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 twolevel aggravating-role enhancement under U.S.S.G. § 3B1.1(c)--contends the

district court improperly failed to grant his request for disclosure of any

relevant portions of his codefendants' presentence reports. Smith contends

the information would support his theory that the government had

inconsistently applied the same evidence to assign differing role levels

among the codefendants. Smith contends this inconsistent application

created an illegal sentencing disparity. The sentencing court rather than

the government, however, was responsible for the sentencing adjustments

made in each case, and Smith cannot rely on his codefendants' sentences as

a yardstick for his own. See United States v. Granados, 962 F.2d 767, 774

(8th Cir. 1992). To the extent Smith is challenging the aggravating-role

enhancement, we conclude the district court did not clearly err in

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).
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Finally, Smith challenges the district court's refusal to depart

downward under U.S.S.G. § 5K2.0. Smith contends he was entitled to a

departure because his guilty plea influenced other defendants to plead

guilty, and because of the alleged disparity between his and his

codefendants' sentences. Because we conclude the district court was

clearly aware of its authority to depart and chose not to do so, we may not

review this claim. See United States v. Jenkins, 78 F.3d 1283, 1290-91

(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.