United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-1058

___________

United States of America, * 

* 

Appellee, * 

* 

v. * 

* 

Antonio Rodriguez, * 

* 

Appellant. *

___________

Appeals from the United States

No. 03-1316 District Court for the 

___________ District of Nebraska.

United States of America, * 

* 

Appellant, * 

* 

v. * 

* 

Antonio Rodriguez, * 

* 

Appellee. *

___________

Submitted: October 20, 2003

Filed: July 11, 2005

___________

Before RILEY, BEAM, and SMITH, Circuit Judges.

___________
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SMITH, Circuit Judge.

A jury found Antonio Rodriguez guilty of conspiring to distribute 500 grams

or more of methamphetamine and 500 grams or more of cocaine. The district court

denied two of Rodriguez's pretrial motions. Rodriguez objected under Apprendi v.

New Jersey, 530 U.S. 466 (2000), to the obstruction of justice enhancement in the

Presentence Investigation Report ("PSR"). During the sentencing phase of trial, the

district court granted Rodriguez's downward-departure motion and sentenced him to

262 months' imprisonment–followed by five years of supervised release. Rodriguez

appeals his conviction and sentence. The government cross-appeals the district court's

decision to depart downward. We affirm the conviction, but reverse and remand for

resentencing.

I. Facts

During late 2000 and early 2001, Rodriguez assisted local, state, and federal

drug enforcement authorities in Nebraska. However, in early fall of 2001, Rodriguez

himself became the subject of a drug investigation. After surveillance, and with the

aid of a confidential informant, state police arrested Rodriguez during a controlled

methamphetamine buy on August 6, 2001. Police searched Rodriguez's car and found

two ounces of methamphetamine. Investigator Richard Aldag prepared an affidavit

and obtained a search warrant for Rodriguez's motel room and obtained consent to

search from Rodriguez's female companion, Amanda Brejcha-Walenta, for her motel

room. The search uncovered marijuana and drug paraphernalia in Brejcha-Walenta's

room and methamphetamine, a scale, and drug paraphernalia from Rodriguez's room.

On November 15, 2001, a grand jury indicted Rodriguez and Amanda BrejchaWalenta for conspiracy to distribute 500 grams or more of methamphetamine and 500

grams or more of cocaine. Rodriguez filed several pretrial motions, including a

motion to suppress and motion to dismiss and strike. A hearing was held on February

1, 2002, on the motion to suppress. In that motion, Rodriguez claimed Aldag's
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affidavit–offered in support of a warrant to search–stated knowingly false

information. The magistrate judge filed a "Report and Recommendation," which

found that Rodriguez had not made a sufficient showing to entitle him to a hearing

under Franks v. Delaware, 438 U.S. 154 (1978). The "Report and Recommendation"

concluded that, by omitting the challenged information, there still remained sufficient

information to support a finding of probable cause. The district court adopted the

magistrate's report and denied Rodriguez's suppression motion.

Rodriguez also filed a motion to dismiss, claiming that the indictment should

be dismissed because of an inconsistency between information in the affidavit for

search warrant and the testimony of the affiant before the grand jury. The magistrate

judge concluded in a second "Report and Recommendation" that the inconsistencies

between the affidavit and the grand jury testimony were not material to the finding

of probable cause by the grand jury and therefore did not form the basis for dismissal

of the indictment. The magistrate's second "Report and Recommendation" was

adopted by the district court, and Rodriguez's motion to dismiss was denied.

At trial Brejcha-Walenta, Jay Wills, Aaron Dixon, Fidel Martinez, Jose

Villalobos, and Nick Janes testified against Rodriguez. All of these individuals were

alleged co-conspirators with Rodriguez. Based upon their testimony, the jury

convicted Rodriguez. During the sentencing phase of trial the government objected

to the quantity of controlled substances attributed to Rodriguez contained in the PSR.

The government asserted that–based on Martinez's testimony–the quantities would

total more than fifteen kilograms of methamphetamine. Additionally, the government

offered testimony that Rodriguez possessed a firearm related to the drug-trafficking

offense for which he was convicted.

Rodriguez also objected to the drug quantity, to the government's version of the

offense in the PSR, to the four-level enhancement imposed for his role in the offense,

to the two-level enhancement for obstruction of justice, and to the Criminal-History
1

As to the drug-quantity issue, the court used the low end of Martinez's

estimation in calculating the amount attributable to Rodriguez. This decision was

based on the court's expressed concern regarding the precision of Martinez's

testimony–that he spoke in general terms and was imprecise about the frequency with

which he provided methamphetamine to Rodriguez. However, the court expressed

confidence–based on Martinez's and other witnesses' testimony–that ten kilograms

of methamphetamine and four pounds of cocaine should be attributed to Rodriguez.

2

Rodriguez also raises these issues in his brief: whether the district court

misapplied role enhancement, or abridged Rodriguez's constitutional rights by

sentencing him to 262 months' imprisonment; whether the district court abused its

discretion in sustaining a relevance objection to a question posed to a government

witness during cross-examination or in denying admission of a video tape; whether,

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points assessed. Rodriguez also filed a motion for downward departure based upon

eight separate grounds. He also asserted Eighth Amendment violations. The court

overruled the drug-quantity objections and used Martinez's testimony to calculate the

amount attributable to the defendant and attributed ten kilograms of

methamphetamine and four pounds of cocaine to Rodriguez.1

The court found that Rodriguez was an organizer or leader of a conspiracy

involving five or more individuals and as such a four-level increase was appropriate.

The court also found that Rodriguez obstructed justice by attempting to convince coconspirator Brejcha-Walenta not to talk to authorities. The court denied Rodriguez's

Eighth Amendment claims and the government's gun-enhancement motion.

Finally, the court decided to depart downward from a total offense level of 42,

criminal history category II, with a sentencing range of 360 months to life, to a total

offense level of 38, with a range of 262 to 327 months. The court then sentenced the

defendant to 262 months' imprisonment followed by five years of supervised release.

Of the numerous issues raised2

 on appeal, we will address only the following:
under the plain-error standard, there was selective, malicious, and vindictive

prosecution sufficient to warrant a new trial. Having carefully reviewed the record,

we find no error of law in the district court's disposition of these matters. Therefore,

the judgment is affirmed. See 8th Cir. R. 47B.

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(1) Whether the district court erred in denying Rodriguez a Franks hearing and in its

finding that the indictment was valid; (2) Whether the district court properly denied

Rodriguez's motions to suppress evidence obtained from the hotel and vehicle

searches; (3) Whether there was sufficient evidence to support the conspiracy

conviction; (4) Whether the district court clearly erred in its drug-quantity

determination; (5) Whether the district court committed plain error in not ordering a

mistrial due to juror misconduct; (6) Whether the district court erred in its decision

to depart downward; and (7) Whether the district court violated Apprendi.

II. Franks Hearing

Rodriguez first argues that the district court erred in denying a hearing pursuant

to Franks, and in denying his motion to dismiss due to a defective indictment. A

refusal to hold a Franks hearing is reviewed for abuse of discretion. United States v.

Gabrio, 295 F.3d 880, 882 (8th Cir. 2002). We also utilize the abuse of discretion

standard when reviewing a ruling on a motion to dismiss an indictment due to false

testimony presented to a grand jury. United States v. Moore, 184 F.3d 790, 794 (8th

Cir. 1999).

To support his claim that the district court abused its discretion, Rodriguez

notes that the search warrant affidavit contained false information regarding drug

quantity and the grand-jury testimony contained false information about drug type

and quantity. Specifically, Rodriguez alleges that Investigator Aldag lied to the grand

jury when he stated that on July 27, 2001, cocaine–instead of methamphetamine–was

purchased during an undercover buy. Rodriguez also brings to our attention
3

The search warrant claimed that three ounces of methamphetamine were

recovered, the grand jury testimony indicated that two ounces were found, and the lab

report contained a total-weight calculation of 1.8 ounces for the recovered

methamphetamine.

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inconsistencies in the reported quantity of methamphetamine recovered at the time

of his arrest.3

The factual discrepancies between Investigator Aldag's affidavit and the

indictment noted by Rodriguez, without more, do not establish an abuse of discretion

on the part of the district court. Conclusory allegations of falsehood are insufficient

to make a substantial preliminary showing that a false statement was intentionally or

recklessly included in the affidavit. United States v. Mathison, 157 F.3d 541, 547–48

(8th Cir. 1998). The small quantum of difference in the amount and description

estimated in the warrant–and later corrected in the indictment–did nothing to diminish

the illegality of Rodriguez's alleged conduct. Rodriguez does nothing more than point

out minor descriptive inaccuracies–he has made no showing of intent or recklessness

on the part of Investigator Aldag. When no proof is offered that an affiant deliberately

lied or recklessly disregarded the truth, a Franks hearing is not required. United

States v. Moore, 129 F.3d 989, 992 (8th Cir. 1997), cert. denied, 523 U.S. 1067

(1998).

More significantly, in order to establish a Franks violation, Rodriguez was

required to show that the remaining content of the affidavit was insufficient to

establish probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.

2001). The district court found the Aldag warrant affidavit sufficient–without the

alleged false information. On appeal, Rodriguez does not challenge the sufficiency

of the warrant without the false statement. We find no abuse of discretion in the

district court's decision to refuse Rodriguez a Franks hearing or in its decision to

deny Rodriguez's motion to dismiss. 
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III. Suppression

Next, Rodriguez offers several arguments to support his claim that the district

court erred in its refusal to suppress tainted evidence–allegedly gathered without

proper constitutional authority. When considering the propriety of a denial of a

motion to suppress, we review the district court's historical factual findings for clear

error and its conclusions of law on the probable-cause issue de novo. United States

v. Wells, 223 F.3d 835 (8th Cir. 2000).

A. Vehicle

Rodriguez first claims that "there was no valid reason to conduct a search of

the rental vehicle in this case"–even as an inventory search– and "the search violated

the Fourth Amendment." He also contends that there was no probable cause for the

vehicle search as there was no "reasonable suspicion" of drug trafficking.

After a careful review of the record, we are satisfied that the vehicle search was

proper. The search was completed after a confidential informant contacted Rodriguez

and arranged for a purchase of methamphetamine to take place at a specific time and

location. Officers were waiting at the designated location. The vehicle was identified

by the informant, and officers took both Rodriguez and the driver, Brejcha-Walenta,

into custody. The officer then conducted a search of the car.

Under the automobile exception, if a law-enforcement officer has probable

cause, he may search an automobile without a warrant. Probable cause exists when,

given the totality of the circumstances, a reasonable person could believe that there

is a fair probability that contraband or evidence of a crime would be found in a

particular place. United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000).

Here, probable cause was established by the following facts: (1) a buy was

scheduled and Rodriguez arrived as scheduled (right time, right place); (2) Rodriguez

was positively identified by the informant; (3) Rodriguez exchanged the "code" word
4

Rodriguez attempts to distinguish Marchena-Borjas by arguing that, here,

the informant had not seen Rodriguez with contraband; could not describe the type

of vehicle that would be driven; and that the informant was not reliable. Rodriguez

argues that because the conversations were in Spanish, the officers could not

understand–or rely on–the informant. We, however, are unpersuaded by the

distinctions noted by Rodriguez. The essential facts of Marchena-Borjas are similar,

and relevant, to Rodriguez's claim. 

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with the informant. See United States v. Marchena-Borjas, 209 F.3d 698, 699–700

(8th Cir. 2000) (after suspected methamphetamine seller arrived at particular location,

at appointed time, driving a particular vehicle–all as previously described by

informant–officers had probable cause to search vehicle).4

 Certainly, with these facts,

the officers reasonably believed that a fair probability existed that contraband or

evidence of a crime would be found in the automobile.

As far as Rodriguez's claim that officers violated his Fourth Amendment rights

when they conducted an inventory search of his car, we frame the facts differently.

In our view, probable cause existed to search the entire vehicle, and a search pursuant

to the automobile exception to the Fourth Amendment may take place at a separate

place and time. United States v. Winters, 221 F.3d 1039, 1041 (8th Cir. 2000). We

affirm the district court's denial of the suppression motion.

B. Motel Rooms

Rodriguez further claims that the warrant to search his room was based on

evidence discovered in the "illegal" searches of his car, and thus anything recovered

in his room should be suppressed as "fruit of the poisonous tree." This argument is

without merit. As discussed supra, probable cause existed to search the vehicle, and

the evidence that was legally retrieved under the automobile exception was used to

support the warrant to search Rodriguez's motel room. The warrant, therefore, was not

tainted, and probable cause existed for the search. 
5

We do not reach the question of Rodriguez's standing to challenge the

search of room #521. Based on Rodriguez's admission that Brejcha-Walenta lived in

the room, the magistrate judge found standing did not exist. However, the district

court considered the merits of the issue and approached the claim using a consent

analysis. 

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Rodriguez also argues that the search of room #521–in which Brejcha-Walenta

was residing–was invalid. He claims that because he registered for the room, paid for

the room, and could have excluded Brejcha-Walenta from the room (if he desired to

move back into the room), he was in "complete control" of the room. Rodriguez

further argues that the fact that an airline ticket bearing his name was found in the

room also establishes his control of the room.

Assuming, without concluding, that Rodriguez had standing5

 to challenge this

search, we note that Brejcha-Walenta–a person with authority over the

property–consented to the search of the room. "The Fourth Amendment's general

prohibition against warrantless searches does not apply when officers obtain

voluntary consent from the person whose property is searched or from a third party

with common authority over the property." See Illinois v. Rodriguez, 497 U.S. 177,

181 (1990). The consent of one who possesses common authority over premises or

effects is valid as against the absent, nonconsenting person with whom that authority

is shared. United States v. Matlock, 415 U.S. 164, 170 (1974); United States v.

Esparza, 162 F.3d 978, 980 (8th Cir. 1998). 

Brejcha-Walenta gave consent–a factual finding of the district court that is not

clearly erroneous–to search the motel room. She was the only person currently living

in the room, thereby possessing at least common authority over the room. Thus, the

search was valid. Accordingly, the district court properly rejected Rodriguez's motion

to suppress the evidence recovered from room #521.

C. Arrest Warrant
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Rodriguez also contends that the officers had no probable cause to arrest and

detain him for this crime. This claim is predicated on Rodriguez's prior argument

regarding the incorrect drug-quantity amount contained in the search warrant

affidavit. He suggests that although there was a warrant for his arrest, the warrant was

not valid because it was premised upon false information. As discussed above, we are

not persuaded by this argument and find sufficient probable cause to support

Rodriguez's arrest.

IV. Sufficiency

Rodriguez also challenges the sufficiency of the evidence to support his

conviction. Specifically, he claims that the government failed to prove (1) that there

was an illegal agreement; (2) that Rodriguez knew about the agreement; and (3) that

Rodriguez knowingly became a part of the alleged conspiracy. He points out that

mere association or acquaintance cannot establish a conspiracy nor does mere

presence at the scene of a crime prove conspiracy. United States v. Hernandez, 986

F.2d 234, 236 (8th Cir. 1993).

In a sufficiency review, the evidence is viewed in the light most favorable to

the verdict, and all reasonable inferences supporting the verdict are accepted as

established. A conviction will be reversed only if no reasonable jury could have

convicted the defendant. United States v. Leonos-Marquez, 323 F.3d 679, 681 (8th

Cir. 2003).

In order to sustain a conviction, the government was first required to

prove–beyond a reasonable doubt–that Rodriguez agreed or conspired to distribute

drugs. It is sufficient to prove that the conspiracy consisted of a tacit or implicit

understanding–it is not required that the conspiracy be explicit or expressed. Id. at

682. However, the government's proof must establish some degree of cooperation by

Rodriguez, beyond mere knowledge of the existence of the agreement. Id.
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Viewing the facts in the light most favorable to the government, and giving it

the benefit of all reasonable inferences, the evidence is sufficient to sustain the jury's

verdict. Rodriguez's supplier, Fidel Martinez, testified that he supplied Rodriguez

methamphetamine and cocaine from at least January 2001 to July 2001. And,

according to Martinez, the drug quantity–of both methamphetamine and

cocaine–supplied to Rodriguez was in excess of 500 grams. Rodriguez vigorously

attacks Martinez's credibility. However, credibility is a determination for the trier-offact, and its assessment is virtually unassailable on appeal. United States v.

Hernandez, 187 F.3d 806, 809 (8th Cir. 1999).

Several other individuals involved in Rodriguez's drug-distribution chain also

testified against him–including Dixon, Janes, Brejcha-Walenta and Wills. Their

testimony, if believed, provided sufficient evidence to support the jury's finding that

Rodriguez was guilty of conspiracy to distribute 500 grams or more of

methamphetamine and cocaine.

V. Drug Quantity

Rodriguez next challenges the quantity of drugs attributed to him. We review

a district court's drug-quantity finding (for sentencing purposes) using a clear error

standard. United States v. Causor-Serrato, 234 F.3d 384, 389 (8th Cir. 2000). In

conspiracy cases, the quantity of drugs to be attributed to the defendant includes those

which were a part of acts committed by the defendant, aided and abetted or caused by

him, as well as the reasonably foreseeable acts of others that were in furtherance of

the jointly-undertaken criminal activities. See U.S.S.G. § 1B1.3(a)(1). Actions are

reasonably foreseeable to a defendant when they fall within the scope of the

agreement between the defendant and the coconspirators. United States v. Jones, 965

F.2d 1507, 1517 (8th Cir. 1992). This also includes actions that occur while the

defendant is incarcerated. United States v. Casares-Cardenas, 14 F.3d 1283, 1288

(1994).
6

One pound of methamphetamine equals 453.59 grams.

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In its finding that Rodriguez should be held responsible for 500 grams or more

of methamphetamine and cocaine, the district court said:

Based on the testimony of all the witnesses as to the amount of

methamphetamine and cocaine, the Court is confident that ten kilograms

of methamphetamine and four pounds of cocaine should be attributed to

the defendant, but no more than that.

The district court further concluded "that the testimony of Fidel Martinez should be

used in calculating the amount attributable to the defendant." Martinez estimated that

he distributed, in toto, between ten and fifteen kilograms of methamphetamine to

Rodriguez. He also testified that he distributed approximately four pounds of cocaine

to Rodriguez. This testimony was corroborated by Brejcha-Walenta. She testified that

she saw Martinez deliver pound quantities of methamphetamine to Rodriguez. She

also testified that on several occasions–under Rodriguez's direction–she picked up

pound quantities of methamphetamine from Martinez. She also stated that she sold

methamphetamine–for Rodriguez–in quantities of up to a half pound. In addition to

the testimony of Martinez and Brejcha-Walenta, Dixon and Wills testified regarding

drug quantities received from Rodriguez. The quantities presented by Dixon alone

exceeded one pound of methamphetamine.6

 Wills also testified to amounts of

methamphetamine in excess of one pound. 

Because there is overwhelming evidence to support the district court's finding

that Rodriguez's methamphetamine drug quantity exceeded 500 grams, we affirm.

VI. Juror Misconduct

Rodriguez's next argument centers on juror misconduct stemming from a

member of the jury asking a question–during a recess–of a government witness.

Rodriguez fashions his claim as a violation of the Sixth Amendment's guarantee that
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every defendant receive a trial by an impartial jury. He did not raise this issue below,

thus the allegation of error is reviewed for plain error. Fed. R. Crim. P. 52(b); United

States v. Williams, 545 F.2d 47, 51 (8th Cir. 1976).

A juror approached Trooper Caladori, a government witness and a canine

officer, and asked him about the availability of dog presentations for a school. When

placed under oath and asked about the encounter, Trooper Caladori testified that he

did not initiate the conversation. In response to her inquiry, he provided the

appropriate contact number to the juror and ended all further contact. Trooper

Caladori confirmed that no aspect of Rodriguez's trial was discussed during the

exchange. Following these remarks, Rodriguez's counsel agreed that an

admonishment to the jury provided a sufficient remedy for the witness-juror

communication. And as agreed, the judge admonished the jury. However, Rodriguez

now contends the court should have gone further and should have dismissed the juror

or declared a mistrial.

Extrajudicial communication during trial between a prosecution witness and

a juror is presumptively prejudicial subject to being rebutted by the government.

Remmer v. United States, 347 U.S. 227, 229 (1954); United States v. Williams, 545

F.2d 47, 51–52 (8th Cir. 1976). However, the presumption of prejudice does not

apply unless the extrinsic contact relates to factual evidence not developed at trial.

United States v. Hall, 85 F.3d 367, 371 (8th Cir. 1996). 

Rodriguez did not request a mistrial, nor did he ask for the juror to be

dismissed. The communication did not involve facts related to the trial, and the steps

taken by the court were those requested by Rodriguez and reasonable under the

circumstances. Rodriguez has made no showing of prejudice. As such, the district

court's failure to dismiss the juror or declare a mistrial did not violate Rodriguez's

Sixth Amendment right to receive a trial by an impartial jury.
7

Rodriguez's criminal-history calculation was based upon two misdemeanor

convictions. One involved an assault offense and the other involved a concealedweapons charge. The latter conviction was committed during the time Rodriguez was

actively involved in the current conspiracy. Further, his criminal history score of three

points was at the top of the range for category II.

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VII. Downward Departure

In its cross-appeal, the government contends that the district court erred in

reducing Rodriguez's total Offense Level from 42 to 38. We review a district court's

departure from the Guidelines de novo. The Protect Act, Pub. L. No. 108–21, 117

Stat. 650 (2003); United States v. Aguilar-Lopez, 329 F.3d 960, 963 (8th Cir. 2003).

The district court based its departure decision on three factors: (1) Rodriguez's

criminal history; (2) Martinez's ambiguous testimony as to drug quantity; (3)

Rodriguez's age. The court considered Rodriguez's prior offenses less serious than the

pending drug-conspiracy offense. The court also stated its preference to give

Rodriguez the benefit of the lower range of witness Martinez's estimate of drug

quantities supplied to Rodriguez. Finally, the court considered that at age thirty one,

Rodriguez would spend the bulk of his remaining productive years in prison and

could take advantage of self-improvement opportunities in prison.

At the outset, we note that the district court erred in considering criminal

history as a part of a § 5K2.0 departure–as opposed to a separate § 4A1.3 departure.

The district court departed from an Offense Level of 42 (Criminal History Category

II), with a sentence ranging from 360 months to life in prison–to an Offense Level of

38 (Criminal History Category II), with a range of 262 to 327 months. This departure

was based–in part–on the court's finding that Rodriguez's criminal history was overrepresented.7

 The court noted that this offense was Rodriguez's first felony.

With an Offense Level of 42, Rodriguez's sentence cannot be less than 360

months whether he be classed in Criminal History Category I or II. The sentencing
8

In the absence of the characteristic or circumstance that distinguishes a case

as sufficiently atypical to warrant a sentence different than that called for under the

Guidelines, a sentence outside the Guideline range is not authorized. See 18 U.S.C.

§ 3553(b).

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range for Offense Level 42, Criminal History Category I, is also 360 months to life

in prison. In other words, a departure below 360 months on criminal-history grounds

is error. See United States v. Blackbird Sheridan, 270 F.3d 669, 673 (8th Cir. 2001)

(A departure below the lower limit of the Guidelines range for Criminal History

Category I on the basis of the adequacy of criminal history cannot be appropriate

because this category is set for a first-time offender). However, the district court's

departure was not entirely based on an over-representation of criminal history. 

Thus, we must determine whether the district court's other bases for departure

are sufficient to take the case out of the "heartland"8

 and support a downward

departure. In reviewing a departure based on multiple factors, we must consider

whether a potential factor is already taken into account or specifically discouraged

by the Guidelines. Koon v. United States, 518 U.S. 81, 96 (1996). To determine

whether a circumstance was adequately taken into consideration by the Commission,

Congress instructed courts to consider only the Sentencing Guidelines, policy

statements, and official commentary of the Sentencing Commission. Koon, 518 U.S.

at 92–93. 

Cases outside of the "heartland" of the Guidelines should be "extremely rare."

U.S.S.G. § 5K2.0 commentary. If a factor is unmentioned in the Guidelines, the court

must, after considering the structure and theory of both relevant individual Guidelines

and the Guidelines taken as a whole, decide whether it is sufficient to take the case

out of the Guideline's heartland. Koon, 518 U.S. at 96. Thus, our charge is to

determine if Rodriguez's "conduct significantly differs from the norm" to such a

degree that departure is warranted. United States v. Roberts, 313 F.3d 1050, 1053 (8th

Cir. 2003).
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In support of its decision to depart downward, the district court considered the

attributable drug quantity as a relevant factor–however, testimony regarding drug

quantity is covered specifically under the Guidelines in the determination of the

offense level, in this case under U.S.S.G. § 2D1.1(a)(3). The court was also concerned

about the credibility of Martinez's drug-quantity testimony. As a result of this

concern, the court held Rodriguez responsible for the lower end of Martinez's

estimation. The lower-end number was also used by the court to establish quantity to

support the charged offense, which in our view amounts to a finding that the amount

was credible.

The district court also departed, in part, due to the defendant's age. Rodriguez

is a thirty-one year old male. Although a downward departure based on age is

permissible, it is so only if the factor is present in an exceptional degree or in some

other way makes the case different from the ordinary case where the factor is present.

United States v. Hildebrand, 152 F.3d 756 (8th Cir. 1998) (finding departure based

on age appropriate for a seventy-year-old with life-threatening health conditions).

Unfortunately, a thirty-year-old male facing a lengthy prison sentence for conspiracy

to distribute a large quantity of drugs is not extraordinary in our legal system.

Finally, another factor considered by the sentencing court in support of

departure was the possibility of Rodriguez's future rehabilitation. The court

optimistically suggested that the departure would encourage Rodriguez's participation

in programs offered by the Bureau of Prisons and that "if he decides to make a

genuine effort to obtain an education and to receive vocational training by this

downward departure, this will give him some opportunity that he would be able to use

those things to his benefit after his release." The Guidelines consider rehabilitation

efforts as relevant indicia as to whether a defendant has accepted responsibility. See

U.S.S.G. § 3E1.1 cmt. n.1(g). However, because the Guidelines already account for

rehabilitation under § 3E1.1, a departure can be granted only if there are rehabilitative
-17-

efforts "'exceptional enough to be atypical of cases in which the acceptance of

responsibility reduction is usually granted.'" United States v. Roberts, 313 F.3d 1050,

1054 (8th Cir. 2003) (quoting United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir.

1997)).

In the present case, Rodriguez was not granted a reduction for acceptance of

responsibility. We see no exceptional circumstance presented by Rodriguez's

rehabilitation prospects. At least no circumstance so exceptional as to justify a

downward departure from the Guidelines. Furthermore, when all of the factors used

to support the sentencing court's decision to departure are examined individually, the

resulting impact does not rise to the level of "extremely rare." In fact, the "aggregate

[comes] to no more than a sum of its insufficient parts." United States v. Roberts, 313

F.3d 1050, 1056 (8th Cir. 2003). 

VIII. Apprendi

Rodriguez raised an Apprendi objection to the PSR. Consequently, Rodriguez

has preserved a valid claim under United States v. Booker, 125 S. Ct. 738 (2005); see

also United States v. Pirani, No. 03-2871, slip op., 6 (8th Cir. Apr. 29, 2005). The

district court overruled all of Rodriguez's Guideline objections and in doing so treated

the Guidelines as mandatory. At sentencing, the court found facts and denied

Rodriguez's objection. In doing so the court erred. We therefore remand to the district

court to review the enhancements under an advisory Guideline scheme. Id. at 757. 

Accordingly, we reverse and remand for resentencing consistent with this

opinion.

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