F I L E D

United States Court of Appeals

Tenth Circuit

JUN 2 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant/CrossAppellee,

v.

LEVONE RAY MADEN,

Defendant-Appellee/CrossAppellant.

Nos. 96-2125

& 96-2140

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR 94-211 MV)

Richard A. Friedman, Attorney, Appellate Section Criminal Division, Department of

Justice, Washington, D.C. (Tara C. Neda, Assistant United States Attorney, and John J.

Kelly, United States Attorney, District of New Mexico, with him on the briefs), for

Plaintiff-Appellant/Cross-Appellee.

Albert B. Lassen of Lassen & Jaffe, Albuquerque, New Mexico, for DefendantAppellee/Cross-Appellant.

Before HENRY, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.
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Defendant Levone Maden was convicted after a jury trial of possession with intent

to distribute more than fifty grams of cocaine base, in violation of 21 U.S.C.

§ 841(b)(1)(A). The district court sentenced defendant to 240 months imprisonment,

departing downward from the guideline range of 360 months to life. The government has

appealed, asserting that the district court improperly departed downward on the basis of a

sentencing disparity with a codefendant. Defendant cross-appeals, asserting that the

district court failed to properly instruct the jury after defendant’s objection to testimony

that defendant said that he made his living as a drug dealer. We affirm defendant’s

conviction for the reasons stated hereafter, but hold the district court erred in departing

downward below the range established by the sentencing guidelines.

I

We first address defendant’s cross-appeal which, if successful, would invalidate

his conviction. This case arose when law enforcement officers went to defendant’s

apartment to execute an arrest warrant on him. When the officers entered the apartment

they found defendant and codefendant John Paul Wilbon in the living room. The officers

saw in plain view on a dining room hutch two plastic bags containing what appeared to be

cocaine base. They also found codefendant Geneva Gallegos hiding in a locked

bathroom.

The officers searched defendant incident to the arrest and found that he had

significant amounts of cash and some marijuana on his person. After obtaining a warrant
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to search the apartment, they found and seized cocaine base packaged in distribution

quantities with a total weight of over 450 grams. Both defendant and Gallegos admitted

they lived in the apartment. About a day after he was arrested defendant told an FBI

agent that he knew the material found in the apartment was crack cocaine.

A grand jury indicted defendant, Wilbon, and Gallegos for possession with intent

to distribute more than fifty grams of cocaine base. Wilbon pleaded guilty pursuant to

Fed. R. Crim. P. 11(e)(1)(C) to possession with intent to distribute less than five grams of

cocaine base, and was sentenced to thirty months pursuant to a plea agreement. 

Defendant and Gallegos were convicted in a jury trial.

Defendant’s argument on appeal addresses a detective’s testimony that he had

encountered defendant before this arrest and defendant told him that “what he did for a

living was he was a drug dealer.” IV R. 188. Defense counsel objected without

specifying the grounds and the court initially sustained the objection. At a bench

conference the government asserted the testimony was an admission of a party opponent

and “relevant to go to the--the defendant indicated he was unemployed at the time of his

arrest, and there is unexplained wealth that the government is able to show in this

apartment.” Id. at 188-89; see Fed. R. Evid. 801(d)(2)(A). Defense counsel asked the

district court to strike the statement and to instruct the jury to disregard it. Defense

counsel asserted that the statement was Fed. R. Evid. 404(b) prior bad act evidence not

disclosed to defendant before trial. The district court expressed concern that the witness
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not disclose that defendant made the statement during a prior arrest, but then stated that

“I’m going to deny the defense objection to strike and instruct the jury to disregard that

last statement. Go ahead.” IV R. 191. Based on this colloquy defendant asserts that the

court sustained its objection and agreed to instruct the jury to disregard the statement,

which it never did. But we are satisfied that although the ruling was inartfully worded,

the district court denied the defense’s objection and its request to instruct the jury to

disregard the testimony. That this was also defense counsel’s understanding is supported

by the fact that defense counsel did not pursue the matter when the district court failed to

immediately give a curative instruction.

The district court’s jury instructions did reference a statement by defendant which,

because the statement was not identified, defendant argues could have confused the jury. 

The court stated:

You have heard testimony that the defendant, Levone Maden, made

a statement. In determining whether any statement claimed to have been

made by a defendant outside of court and after an alleged crime has been

committed was knowingly and voluntarily made, you should consider the

evidence concerning such a statement with caution and great care and

should give such weight to the statement as you believe it deserves under all

the circumstances.

IV R. 253 (emphasis added).

Inherent in defendant’s assertion that the district court erroneously failed to

instruct the jury to disregard the drug dealer testimony, or that its instruction confused the

jury, is a claim that the “drug dealer” comment was character evidence not properly
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admitted under Fed. R. Evid. 404(a) and (b). Under Fed. R. Evid. 404(b), evidence of

prior bad acts may not be admitted “to show bad character or propensity to commit a

crime, but may be admitted to prove, among other things, intent or knowledge.” United

States v. Arias-Montoya, 967 F.2d 708, 709 (1st Cir. 1992). 

We note defense counsel did not object to the instruction. Indeed, we cannot

determine from the appellate record whether this was an instruction submitted by the

prosecution or the defense. The court noted that the only dispute over both parties’

proffered jury instructions was over the use of Gallegos’ “other name.” IV R. 244-45. 

Thus, we review the instruction only for plain error. The district court was correct in

ruling that such a statement is not considered hearsay, because it was made by defendant

himself. See Fed. R. Evid. 801(d)(2)(A). But it should have been considered for its

admissibility under Rule 404(b).

Some courts have expressed “doubt whether evidence of an occupation or status

like ‘drug dealer’ falls within the realm of ‘other crimes, wrongs, or acts’ admissible to

show knowledge or intent under Rule 404(b).” United States v. Brewer, 1 F.3d 1430,

1435 (4th Cir. 1993) (citing United States v. Reed, 647 F.2d 678, 686 (6th Cir.)

(testimony that defendants charged with receiving stolen goods were known burglars or

fences not admissible under Fed. R. Evid. 404(b))), cert. denied, 454 U.S. 837, 1037

(1981). But evidence of prior drug transactions can be admissible to prove intent in drug

prosecutions. See United States v. Elkins, 732 F.2d 1280, 1286 (6th Cir. 1984) (prior
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cocaine deals observed by witness admissible to prove intent in cocaine prosecution). 

The defense at trial was that “the evidence showed only his presence and perhaps

knowledge that a crime was committed, but failed to show that he himself was in

possession of the cocaine base.” Levone Maden’s Brief on Cross-Appeal at 9. Thus, the

officer’s testimony that defendant told him he was a drug dealer was relevant to a matter

at issue in the case--whether defendant had the intent to possess and distribute the cocaine

found in his apartment. See, e.g., United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st

Cir. 1990) (evidence of defendant’s prior drug possession convictions admissible under

Fed. R. Evid. 404(b) to negate his defense that he did not know car he had been driving

contained cocaine); United States v. Molinares Charris, 822 F.2d 1213, 1220 (1st Cir.

1987) (evidence of defendants’ prior smuggling of controlled substances relevant to

disprove claim of “mere presence”), cert. denied, 493 U.S. 890 (1989).

The district court did not explicitly perform the required Fed. R. Evid. 403

balancing. But the colloquy at the time of the objection, in which the court expressed

concern that the witness not disclose that defendant made the statement during an arrest,

might be construed as weighing possible prejudice. Nevertheless, even if the district

court erred in admitting the evidence of the “drug dealer” admission or in not being more

specific in its limiting instruction, the error was harmless. When defendant was arrested

in the apartment he shared with Gallegos the cocaine base was on a hutch in plain view. 

He had over $400 in cash in his pocket, and officers found a pager he had rented. After
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he was arrested defendant told an officer he knew the substance found was crack cocaine. 

Further, evidence was admitted at trial without objection from defense counsel that in

December 1989 defendant sold crack cocaine to a confidential informant and was later

convicted of selling crack cocaine. Given the substantial evidence against defendant the

admission of his statement that he was a drug dealer is not reversible error. See United

States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc).

II

The government’s appeal asserts that the district court abused its discretion in

departing downward based on the disparity between defendant’s guideline range and the

sentence the court previously approved for codefendant Wilbon who entered a Rule

11(e)(1)(C) plea bargain to a different offense.

The presentence report calculated defendant’s base offense level at 34 based on the

451.3 grams of cocaine base found in his apartment. His criminal history category was

VI, and his previous felony convictions for crimes of violence and drug offenses qualified

him as a career offender under USSG § 4B1.1. See also 28 U.S.C. § 994(h). The career

offender guideline elevated his offense level to 37. There were no applicable

adjustments. The presentence report calculated a sentencing range of 360 months to life.

The district court departed downward under 18 U.S.C. § 3553(a) and (b) and

USSG § 5K2.0 to remedy the perceived disparity between defendant’s guideline range

and the thirty-month sentence codefendant Wilbon received under his plea agreement. 
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The district court departed four levels to a guideline range of 235 to 293 months

imprisonment and sentenced defendant to 240 months imprisonment, the mandatory

statutory minimum. See 21 U.S.C. § 841(b)(1)(A) (twenty-year mandatory minimum

sentence for recidivist drug traffickers). The court stated its reasons for departing

downward:

[P]ursuant to Section 5K2.0 of the U.S. Sentencing Guidelines, the Court

finds that there exists a mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence different from

that described. The Court notes that codefendant John Paul Wilbon and the

Government had a Rule 11(e)(1)(C) Plea Agreement, and as a result, John

Paul Wilbon was sentenced to thirty (30) months custody of the Bureau of

Prisons. The Court notes that the offense conduct by both John Paul

Wilbon and Levone Ray Maden did not result in any role adjustments;

therefore, they can be viewed as equally culpable; yet the possible sentence

exposure in this case is substantially higher than that of John Paul Wilbon. 

The Court also notes that this disparity is due to the criminal background of

Levone Ray Maden, that a downward departure to the minimum sentence

required by 21 U.S.C. § 841(b)(1)(A), which is twenty (20) years, is the

appropriate sentence in this case.

I R. doc. 147 at 8; see also V R. 20-21.

We review the district court’s determination to depart from the guideline range for

an abuse of discretion. Koon v. United States, 116 S. Ct. 2035, 2047 (1996). We review

the district court’s interpretation of the United States Sentencing Guidelines de novo. See

id. The narrow question before us is whether the district court abused its discretion in

finding that the disparity was “a mitigating circumstance of a kind or to a degree not
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adequately considered by the Sentencing Commission” that would authorize a downward

departure. 18 U.S.C. § 3553(b).

In United States v. Garza, 1 F.3d 1098, 1110 (10th Cir.), cert. denied, 510 U.S.

1018 (1993), we stated that “‘neither Congress nor the Commission could have expected

that the mere fact of a difference between the applicable guideline range for a defendant

than that of his codefendant would permit a departure, either because the difference was

too large or too small. The Congressional objective was to eliminate unwarranted

disparities nationwide.’” Garza, 1 F.3d at 1100 (quoting United States v. Joyner, 924

F.2d 454, 460 (2d Cir. 1991)). “Congress did consider that sentences of co-defendants

may be disparate. Congress chose to avoid unwarranted disparities through a guideline

system which considered various facts concerning the offense and the offender.” Garza,

1 F.3d at 1100.

Although some courts have held that a district court may not depart downward “for

the purpose of avoiding unequal treatment of codefendants,” see, e.g., United States v.

Mejia, 953 F.2d 461, 468 (9th Cir.), cert. denied, 504 U.S. 926 (1992), we need not go so

far in this case because we held in Garza that “disparate sentences are allowed where the

disparity is explicable by the facts on the record.” 1 F.3d at 1101; see also United States

v. Contreras, 108 F.3d 1255, 1271 (10th Cir. 1997) (avoiding question whether trial court

abused its discretion in departing on disparity because codefendants were not similarly

situated).
1

 Although Wilbon initially was charged with the same crime as defendant, the

government entered into a plea agreement with Wilbon under Fed. R. Crim. P.

11(e)(1)(C). Wilbon agreed to cooperate and to plead guilty to an information charging a

reduced offense--possession with intent to distribute less than five grams of crack

cocaine--and the government agreed to a sentence of 30 months imprisonment. See Brief

for the United States Add. B (Wilbon plea agreement). Without the plea agreement for a

30-month sentence Wilbon’s presentence report calculated a sentencing range of 135 to

168 months based on an offense level of 31 and a criminal history category of III. The

district court exercised its discretion to accept the plea agreement and sentenced him to 30

months imprisonment. The court stated that it was satisfied that “the agreed sentence

departs from the applicable guideline range for justifiable reasons.” I R. doc. 133 at 7.

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The disparity here is clearly explicable by several facts to which the district court

itself referred: Wilbon entered a plea agreement to a lesser charge; his criminal history,

though considerable, was substantially less than defendant’s; and defendant supplied the

drugs to Wilbon for distribution.1

 See Garza at 1101 (district court abused its discretion

in departing downward to avoid disparate sentence because defendant’s and

codefendant’s participation, culpability, criminality, and conduct were not similar). The

district court did not identify any factors other than the sentencing disparity that took

defendant’s case outside the heartland of the guideline range. Thus we see no basis for

the district court to depart downward.

We AFFIRM defendant’s conviction, but set aside the sentence imposed and

REMAND for resentencing within the applicable guideline range.