IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-1259

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID GLENN IVES,

Defendant-Appellant.

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 Appeal from the United States District Court

 for the Northern District of Texas

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( February 16, 1993)

Before REAVLEY, KING and WIENER, Circuit Judges.

KING, Circuit Judge:

 After pleading guilty to the charge that he distributed

amphetamine in violation of 21 U.S.C. § 841(a)(1), David Glenn

Ives was sentenced by the district court to ninety-seven months'

imprisonment. On appeal, Ives raises a single claim: that the

district court erred by refusing to depart downward in order to

"harmonize" Ives' sentence with the considerably lesser sentences

given to Ives' equally culpable co-conspirators. Finding no

error, we affirm.

 Because Ives raises only a single issue of law on appeal, we

dispense with a full recitation of the facts. We simply note
 

1 Numerous other co-conspirators received sentences ranging

from twelve to thirty-six months of actual prison time. The

sentences were primarily the result of prosecutors' charging

decisions, resulting from plea-bargains, not because of an

exercise of unbridled discretion by sentencing courts.

 

2 See, e.g., United States v. Wogan, 938 F.2d 1446, 1448-

1449 (1st Cir. 1991), cert. denied, 112 S.Ct. 441 (1991); United

States v. Joyner, 924 F.2d 454, 460-462 (2nd Cir. 1991); United

States v. Higgins, 967 F.2d 841, 845 (3rd Cir. 1992); United

States v. Kant, 946 F.2d 267, 270 n.3 (4th Cir. 1991); United

States v. Geesa, 944 F.2d 265, 270 (6th Cir. 1991) (noting intracircuit conflict), vacated upon decision to reconsider the issue

en banc, 944 F.2d 271 (6th Cir. 1991); United States v. Cea, 914

F.2d 881, 889 (7th Cir. 1990); United States v. Torres, 921 F.2d

196, 197 (8th Cir. 1990); United States v. Majia, 953 F.2d 461,

468 (9th Cir. 1991) (noting intra-circuit conflict); United

that Ives' co-conspirators received sentences substantially less

severe than Ives' sentence of ninety-seven months' imprisonment.1

We also observe that it appears from the district court's

comments at Ives' sentencing hearing that one or more of these

co-conspirators were equally or more culpable than Ives. The

district court was sympathetic to Ives' arguments but stated

that, under the United States Sentencing Guidelines, he had no

authority to depart downward for the purpose of achieving

sentencing parity or equity between similarly situated codefendants.

 Although an issue of first impression in this circuit, this

very question has been decided by numerous other federal courts

of appeal. Although there is a small degree of intra- and intercircuit conflict, the clear trend has been to hold that a

district court may not under any circumstances depart from a

recommended Guidelines' sentence -- either upward or downward --

for the purpose of achieving parity or equity between codefendants.2
States v. Jackson, 950 F.2d 633, 637-38 (10th Cir. 1991); United

States v. Hendrieth, 922 F.2d 748, 752 (11th Cir. 1991).

3

 Citing the distinct minority position, see United States v.

Ray, 920 F.2d 562, 567-68 (9th Cir. 1990); United States v.

Nelson, 918 F.2d 1268, 1275 (6th Cir. 1990), Ives proposes that

we should adopt a rule that permits a district court to depart

downward in order to assure sentencing equity between codefendants. Ives' argument in support of his proposal is as

follows: Although the Sentencing Guidelines expressly

contemplate that there will inevitably be some sentencing

disparities between co-defendants, see Joyner, 924 F.2d at 454,

such differentials should only be the result of "reasoned"

sentencing factors entering into a district court's calculations

under the Guidelines' sentencing mechanism. "Reasoned" factors,

according to Ives, include a defendant's unique criminal history,

the degree of the defendant's involvement in a criminal

enterprise, whether he accepted responsibility for the crime, and

the like. Ives argues that such factors contributing to

disparate sentencing of co-defendants are perfectly reasonable. 

We agree. 

 However, Ives further argues that sentencing disparities

that result from such determinative factors as a prosecutor's

(often seemingly arbitrary) decision to plea bargain favorably

with one co-defendant and unfavorably with a similarly situated

co-defendant are "unreasoned." Ives suggests that a district

court should have the discretion to depart downward in order to
 

3 We hardly dispute that the occurrence of disparities among

similarly situated co-defendants is a recurring feature of our

criminal justice system, on both the state and federal levels. 

We observe that this has always been true, including well before

the advent of structured discretion in the Sentencing Guidelines. 

Disparate sentencing appears to some degree inherent in our

system. The Supreme Court has been repeatedly reminded of this

fact and has consistently held that, even in the special context

of the death penalty, there is nothing unconstitutional about it. 

See, e.g., Gregg v. Georgia, 428 U.S. 153, 199-200 & n.50 (1976)

(plurality opinion); Pulley v. Harris, 465 U.S. 37, 43 (1984).

4

correct such unwarranted disparities that would otherwise result

from a mechanical application of the Guidelines. Here we must

disagree.3

 Because the Constitution is not implicated, resolution of

this issue must occur within the confines of the applicable

statute and the United States Sentencing Guidelines. The

operative provisions are 18 U.S.C. § 3553(b) and U.S.S.G.

§ 5K2.0. Those provisions state that a district court may depart

from the recommended Guidelines' sentence only in two instances.

First, departure is warranted when the Guidelines expressly

permit it based on specified aggravating or mitigating factors;

second, a district court may depart when "the court finds that

there exists an aggravating or mitigating circumstance of a kind

or to a degree not adequately taken into consideration by the

Sentencing Commission in formulating the [G]uidlines that should

result in a sentence different from that [recommended]." Nowhere

in the Guidelines is the existence of disparate sentences among

co-defendants listed as a permissible aggravating or mitigating

circumstance.
 

4 Again, turning to the Supreme Court's capital

jurisprudence, we note that the Court has repeatedly held that

"aggravating" and "mitigating" factors are only those things that

relate to the "defendant's character or record or any of the

circumstances of the offense." See, e.g., Eddings v. Oklahoma,

455 U.S. 104, 110 (1982). 

5

 Thus, the only way disparate sentences could constitute a

reason for departure would be if they qualify as either an

aggravating or mitigating factor. Following the lead of at least

two other circuits, we hold that Ives' claim fails because

disparity of sentences among co-defendants simply cannot be

deemed an aggravating or mitigating circumstance. As such, it is

not a proper basis for departure, either upward or downward. See

United States v. Higgins, 967 F.2d 841, 845 (3rd Cir. 1992);

United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991).4

Accordingly, the district court properly refused to depart

downward in Ives' case.

 For the foregoing reasons, the judgment of the district

court is AFFIRMED.