The Honorable Michael J. Melloy, Chief Judge, United States District Judge for 1 the Northern District of Iowa. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2200

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. James Alexander Pryor, * * [UNPUBLISHED] Appellant. *

___________ Submitted: March 25, 1998 Filed: March 30, 1998

___________ Before FAGG, BOWMAN, and MURPHY, Circuit Judges.

___________ PER CURIAM. After a jury found James Alexander Pryor guilty of d istributing crack cocaine on two occa sions, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 21 U.S.C. § 860, the district court, applying the Guidelines for cocaine base, sentenced Pryor t o 1 concurre nt terms of 84 months imprisonment and six years supervised release. Pryor now appea ls from the district court & s denial of his post-trial motions for a new tria l and/or dismissal of the indictment, which were based on the government & s failure to-2-

disclose timely exculpatory evidence pertaining to the identification of Pryor as th e person who sold crack cocaine to an undercover Iowa detective. Pryor also argues the co urt erred in applying the Guidelines for crack rather than powder cocaine i n determining his sentence, because the Guidelines definition of crack is vague and the rule of lenity thus should apply. We affirm. Under Brady v. Maryland , 373 U.S. 83, 87 (1963), the government is required to disclos e any evidence that is “ # favorable to an accused & ” and is “ # material either to guilt or to punishment. & ” See U nited States v. Gonzales , 90 F.3d 1363, 1368 (8th Cir. 1996). In this circuit, however, the Brady rule “is limited only to the discovery, after trial, of information which had been known to the prosecution but unknown to th e defense. . . . Where the prosecution delays disclosure of evidence, but the evidence is nonetheless disclosed during trial, Bradyis not violated.” Id. Here, al l of the purported Brady mate rial was disclosed before or during trial (and there is no allegation to th e contrary), and we note that Pryor declined the court & s offer to grant him a mistrial based on the g overnment & s late disclosure of this material. Because Pryor & s motions wer e premi sed upon the government & s alleged violation of Brady and no such violatio n oc curred, the district court did not abuse its discretion in denying Pryor & s post-tria l motions. See United States v. Rabins , 63 F.3d 721, 726 (8th Cir. 1995) (standard of review formotion for new trial based on newly discovered Brady material), cert . deni ed , 516 U.S. 1153 (1996); United States v. Manthei , 979 F.2d 124, 126-27 (8t h Cir. 1992) (standard of review for motion to dismiss indictment based on prosecutorial misconduct). Pryor & s challenge to the use of the Guidelines for cocaine base in determining his sen tence is foreclosed by our prior decisions. See, e.g. , United States v. Jackson , 64 F.3d 1213, 1219-20 (8th Cir. 1995) (rejecting vagueness challenge and challenge based on rule of lenity), cert. denied , 516 U.S. 1137 (1996). Accordingly, we affirm the judgment of the district court.-3-

A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.