(caption unavailable)

*Hon. Howell Cobb, United States District Court for the
Eastern District of Texas, sitting by designation.
1 Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expenses on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________________
No. 94-40478
___________________________________
UNITED STATES OF AMERICA,Plaintiff-Appellee,
versus
JOHN HOWARD THOMAS, Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(1:93-CR-109-1)
____________________________________________________
(April 20, 1995)
Before DAVIS, and JONES, Circuit Judges, and COBB, District
Judge.*
PER CURIAM:1
Appellant pled guilty to one count of conspiracy to export
stolen motor vehicles. He was sentenced to a 30-month term of
imprisonment, a $25,000 fine, $31,482 in restitution, and a three-
year period of supervised release. He now appeals his sentence.
We affirm.

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I.
Appellant John Howard Thomas was charged in a six-count
indictment relating to stolen vehicles. Amongst the counts in the
indictment were charges for exporting stolen motor vehicles, and
conspiring to export motor vehicles. Thomas pleaded guilty to the
conspiracy count in return for the dismissal of the remaining
counts. The plea agreement also included a promise on the part of
the U.S. Attorney to file a U.S.S.G. § 5K1.1 motion for a downward
departure, conditioned on Thomas' substantial assistance in the
investigation of other crimes. On appeal, Thomas raises a number
of objections to the court's sentence which we discuss below.
II.
A.
Did The District Court Commit Clear Error In Its
Valuation Of The Loss Attributable To Thomas?
Thomas filed forty objections to the original Presentence
Report ("PSR"). In response the PSR was amended to reflect some of
his concerns, including a reduction of the loss attributable to
Thomas from $114,600 to $111,000. At sentencing, the district
court largely adopted the loss valuation of the PSR, settling on a
figure of $112,000 (the thousand dollar difference having no
bearing on the sentencing outcome).
On appeal, Thomas argues that the district court erred in
accepting the PSR's valuation of the loss attributable to him. He
points out that the revised PSR was not specific as to the value or
ownership of two vehicles Thomas was credited with.

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The PSR's calculations were based on the testimony of a
probation officer. The probation officer's testimony was in turn
based on several lengthy interviews of Calvin Finnels, a co-
conspirator of Thomas'. Thomas contested the veracity of the PSR
by asserting that Finnels' testimony was self-interested and
therefore unreliable. Determining loss is a factual inquiry which
is reviewed for clear error. United States v. Palmer, 31 F.3d 259,
261 (5th Cir. 1994). The district court's finding is fully
supported by the PSR and is not clearly erroneous.
B.
Did The District Court Commit Clear Error In Assessing A
Four-Level Increase For Thomas' Role As A Leader Or
Organizer?
Following the recommendation of the PSR, the district court
assessed a four-level increase for Thomas' role as a leader or
organizer. Thomas argues that there was insufficient evidence to
support his role as a leader or organizer.
Section 3B1.1(a) of the sentencing guidelines provides for an
increase in four levels if the defendant was an organizer or leader
in a criminal enterprise that involved five or more persons, or was
otherwise extensive. At sentencing, the government bears the
burden of proving, by a preponderance of evidence, that the
defendant was a leader or organizer. United States v. Barbontin,
907 F.2d 1494, 1497 (5th Cir. 1990).
The PSR established that Thomas' conspiracy did involve five
persons. Apart from Thomas himself, the PSR identifies Finnels,
who stole equipment for Thomas and supervised its transport to

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Belize; it identifies Ashton Laday, who was Thomas' supply source
for stolen equipment; it establishes that Thomas used Frederick
Chapman to store stolen equipment. The PSR also establishes the
role of Mark Stubbs, who was hired by Chapman to grind the serial
numbers off of stolen equipment.
In addition to basing Thomas' role as a leader on the number
of participants, the district court could have also based the
finding on the extensive nature of the criminal enterprise. The
district court found that the export of a caravan of stolen
vehicles into Belize requires exceptional organizational and
leadership skills. Based on the facts adduced in the PSR and in
the sentencing hearing, the district court's findings are supported
by substantial evidence and are not clearly erroneous.
C.
Did The District Court Commit Clear Error In Its
Assessment For Obstruction Of Justice?
As part of a sting operation, law enforcement authorities
placed a recorder on a witness who contacted Thomas about a grand
jury subpoena. After being informed of the grand jury subpoena,
Thomas suggested that the bulldozer that was the subject of the
subpoena should be driven in a river, and that a false bill of sale
should be prepared for the bulldozer. Based on these comments, the
district court assessed Thomas with a two-level increase for
obstruction of justice. On appeal, Thomas argues that the finding
of obstruction of justice was erroneous because his attempts to
deflect detection occurred after he was already the subject of an
investigation. This argument fails because an obstruction of

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justice assessment can be based on a finding of attempted
obstruction of justice.
D.
Did The District Court Abuse Its Discretion In Denying
Thomas' Motion For Production Of Documents, And Did The
Government Improperly Refuse To File A § 5K1.1 Motion?
Pursuant to Thomas' plea bargain agreement, the Substantial
Assistance Committee of the United States Attorney's Office
reviewed the aid Thomas provided in deciding whether to file a §
5K1.1 motion. The committee determined that Thomas did not provide
substantial assistance, and recommended the motion not be filed.
At sentencing, Thomas made a motion for the production of all
documents used by the committee in reaching its decision. That
motion was denied. Thomas now argues that the district court erred
in denying his request for these documents because it prevented him
from effectively rebutting any erroneous assumptions the committee
might have made, and prevented the meaningful review of the good
faith of the committee's decision. Thomas also contends that the
government's refusal to file a § 5K1.1 motion was improper.
Both before the district court and on appeal, Thomas argued
that the § 5K1.1 motion should have been filed because he actually
did provide substantial assistance. In Thomas' plea bargain
agreement, the government retained the discretion to file the §
5K1.1 motion. This discretionary decision is "reviewable only on
the same basis as other discretionary decisions by a prosecutor:
district courts may grant relief 'if they find that the refusal was
based on an unconstitutional motive' such as the defendant's race

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or religion." United States v. Urbani, 967 F.2d 106, 109 (5th Cir.
1992) (quoting Wade v. United States, ___U.S. ___, 112 S.Ct. 1840,
1844 (1992)). Absent such a showing, a defendant is not entitled
to an evidentiary hearing or discovery. Id. Because Thomas has
not alleged an improper constitutional motive for the government's
refusal to file a § 5K1.1 motion or met the substantial threshold
showing of such a motive, the district court's denial of the
request for the production of documents is affirmed. Further, for
the same reasons, Thomas is not entitled to relief from the
government's refusal to file a § 5K1.1 motion.
The sentence of the district court's is AFFIRMED.

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