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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-8288
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IKWUEMESI UZOMA OKOLI,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
April 29, 1994
Before GARWOOD and JOLLY, Circuit Judges, and DUPLANTIER,* District
Judge.
E. GRADY JOLLY, Circuit Judge:
Ikwuemesi Okoli appeals the sentence imposed following his
guilty plea to an information charging conspiracy to import heroin.
Finding that his arguments are without merit, we affirm.
I
Our review of Okoli's sentence is limited. We will uphold a
sentence "as long as the guidelines are correctly applied to
findings that are not clearly wrong." United States v. Tansley,
986 F.2d 880, 887 (5th Cir. 1993).
*District Judge of the Eastern District of Louisiana,
sitting by designation.

A
Okoli first argues that the district court erred in enhancing
his sentence four levels under § 3B1.1(a) as "an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive." The proof showed--and
Okoli's counsel agreed--that Okoli not only recruited but also
directed his codefendant, Patel. There was further undisputed
proof of the involvement of four other named individuals, as well
as several other persons whom the government declined to identify
by name because of its continuing investigation. According to
Okoli, such evidence was insufficient to justify the enhancement
because the government did not demonstrate that he personally led
or organized five or more participants in criminal activity.
At the time that Okoli was sentenced, there was a conflict
between circuits in the interpretation of § 3B1.1(a). Some
circuits had held that a sentence may be enhanced under § 3B1.1(a)
only if the defendant personally led five or more participants,
while other circuits have held that § 3B1.1(a) is satisfied with
proof that the defendant led at least one of five participants in
the criminal activity. Compare United States v. Barnes, 993 F.2d
680 (9th Cir. 1993), petition for cert. filed 62 U.S.L.W. 3657
(U.S. Apr. 5, 1994) and United States v. Dean, 969 F.2d 187 (6th
Cir. 1992) with United States v. McGuire, 957 F.2d 310 (7th Cir.
1992) and United States v. Reid, 911 F.2d 1456 (10th Cir. 1990).
Our circuit has never previously addressed this issue. We have
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reviewed the opinions of other circuits, and we find plausible
arguments supporting each interpretation of § 3B1.1.
In considering Okoli's argument, however, we are persuaded by
a recent amendment to the commentary to the guidelines, which
addresses this precise issue, presumably to clarify the meaning of
language that has been subject to divergent interpretations.
According to the amended commentary, "[t]o qualify for an
adjustment under this section, the defendant must have been the
organizer, leader, manager, or supervisor of one or more other
participants." Although this comment was not in effect at the time
that Okoli was sentenced, the guideline was in effect and the
comment does not change the guideline but merely provides
additional instruction to us in its proper interpretation. In the
absence of some reason to depart from the commentary to the
guideline, we will accept its counsel. Accordingly, we hold that
the district court properly applied the guideline in enhancing
Okoli's sentence under § 3B1.1(a).1
B
Okoli argues next that the district court erred when it
declined to depart downward from the statutory minimum sentence.
Based on Okoli's substantial assistance, the government filed a
motion to depart downward, pursuant to U.S.S.G. § 5K1.1, from the
1We recognize that this holding conflicts with decisions in
at least two circuits but that conflict should be short-lived
inasmuch as the contrary decisions were rendered before the
November 1993 amendment.
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sentence recommended under the guidelines; the government, however,
did not file a motion to depart downward from the statutory minimum
under 18 U.S.C. § 3553. Approximately four months after Okoli's
sentencing, this court joined other circuits in holding that a
government motion for a § 5K1.1 departure grants the district court
the discretion to depart from the statutory minimum without a
separate motion under section 3553. See United States v. Beckett,
996 F.2d 70, 74-75 (5th Cir. 1993). There is nothing in the
record, however, that Okoli ever requested the district court to
depart downward from the statutory minimum or any proof that the
district court abused its discretion in failing to do so on its
own motion.
III
For the reasons set forth above, the judgment of the district
court is
A F F I R M E D.
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