### *The Hon. John Bailey Jones, United States District Judge for

the District of South Dakota, sitting by designation. _____________ No. 95-2787WM

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the Western District * of Missouri. Ronald D. Jenkins, * * Appellant. *

___________ Submitted: January 9, 1996 Filed: March 6, 1996

___________ Before RIC HARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES, * District Judge.

___________ RICHARD S. ARNOLD, Chief Judge.

Ronald Je nkins appeals his convictions for conspiracy to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and conspiracy to commit money launderin g in violation of 18 U.S.C. §§ 371 and 1956(a)(1)( A)(i). He argues that the convictions are not supported by the evidence pr esented at trial. Jenkins also

### The Hon. D. Brook Bartlett, United States District Judge for 1 

### the Western District of Missouri. -2- appeals his sentence claiming that the District Court miscalculated th e 1 drug quantity, and that he should have been granted a reduction in hi s sentence under U.S.S.G. § 5K2.0. We affirm both the convictions and the sentence.

I.
This i s a classic case of a network of people who chose to devot e their time and energy to the distribution and sale of cocaine and cocaine base. Ronald Jenkins, the defendant, was a key member of an ongoing schem e to transport drugs from Los Angeles, California, to Kansas City, Missouri, whe re the drugs were distributed. The organization was responsible fo r over 100 kilograms of cocaine being introduced into the Kansas City drug market between 1987 and 1992.

James Jen kins, the defendant's brother, organized and ran the drugdistribution network which was supplied from Los Angeles by Shannon Thames and Reevious Henderson. Other members of the or ganization included Reggie Hou se, Ronald Smith, Shawn Stubbs, and Sandy Lyles, who transported th e cocaine from Los Angeles to Kansas City. Once in Kansas City, the drugs
were dis tributed by Diamond Coleman, Keenan Hart, and others. Th e defendant facilitated the conspiracy in at least two ways: he allowed his home to be used as a "safe house," and he assisted in the accounting o f drug proceeds, including disbursing money to the distributors and wiring money to Los Angeles.
Evide nce of the defendant's performance of each of these roles i s overwhelming. The testimony of co-conspirators leaves no doubt that the defendant allowed his home to be used as a "safe house" in furtherance of the conspiracy. First, he allowed the couriers to

### According to the record, Jenkins wired $93,650 in dru g 2 

### proceeds to Los Angeles between July of 1987 and April of 1990. -3- stay in his home during their trips to Kansas Ci ty. Second, large amounts of cocaine were stored in the basement of his home at his instruction
. Once the cocaine was sold, couriers returned to the defendant's home with the drug proceeds, which were also stored in his basement.

The evidence that the defendant actively participated in th e acc ounting of the drug proceeds is also compelling. On at least fiv e occasions the defendant received drug proceeds f rom Hart and Coleman. The money was delivered to the defendant at his home in brown paper bag s contai ning $1,000 bundles with the total amount received ranging fro m $10,000 to $20,000. The defendant stored the money in his basement. On anothe r occasion, the defendant, with Hart, James Jenkins, and Colema n present, c ounted $100,000 in drug proceeds which had been stored in a garbage bag at his home. In addition to storing and counting the dru g proceeds, he was also active in their disbursement. He gave money to coconspirators when instructed to do so by James J enkins, and he wired money from the sale of the drugs to Los Angeles. He also instructedHart on how 2 to avoid Internal Revenue Service reporting requirements when sending larg e sums of money via Western Union.

In Jan uary of 1993, the defendant was charged in a seven-coun t indictment for his drug-related activities. Fol lowing the trial, the jury returned a verdict of guilty on Count Two for co nspiracy to distribute and possess with intent to distribute cocaine and cocaine base, and on Count Seven for conspiracy to conduct money laundering. He was sentenced to 15 years and 8 months' imprisonment on Count Two, and five years' imprisonmen t on Count Seven, to run concurrently. The defendant also must serve a five

yea r term of supervised release on Count Two and a three-year term o f supervised release on Count Seven to run concurrently. He now

### -4-

appeals both his convictions and his sentence.

II. The defendant challenges the suffici ency of the evidence with regard to his drug conspiracy and money-laundering conspiracy convictions. In ou r review , we must view the evidence in the light most favorable to th e verdict. United States v. Bascope-Zurita , 68 F.3d 1057, 1060 (8th Cir
. 1995), ce rt. denied , 116 S. Ct. 741 (1996). The verdict is given th e benefit of all reasonable inferences that might have been drawn from the evidence presented. Ibid. Reversal is appropriate "only if we conclude that a reasonable fact-finder must have entertained a reasonable doub t about the government' s proof of one of the offense's essential elements." Ibid.
In order to prove the existence of a conspiracy, "the governmen t must show an agreement between at least two people and that the agreement' s objective was a viola tion of the law." United States v. Escobar , 50 F.3d 1414, 1419 (8th Cir. 1995). The existence of the agreement may be proved byeither direct or circumstantial evidence. Ibid. Once the government establ ishes the existence of a drug conspiracy, only slight evidenc e li nking the defendant to the conspiracy is required to prove th e defend ant's involvement and support the conviction. United States v
. Smith , 49 F.3d 362, 365 (8th Cir. 1995) (subsequent history omitted).

A.
The defendant argues that the government failed to prove that h e knew of the drug conspiracy or that he knowingly joined the conspiracy. I n support of this argum ent he notes that there was no evidence that he sold drugs, and that the testimony of his co-conspira tors was contradictory and refuted by defense witnesses.

### -5- The government presented ample evidence of an agreement betweenJames Jenkins and others to transport cocaine from Los Angeles to Kansas City. The proof included testimony describing numerous drug transactions which took place in Kansas City, some taking place in the defendant's presence. Testimony also establ ished that the proceeds from these transactions were often wired to Los Angeles.

Con traryto the defendant's assertion, the government did offe r eviden ce which not only demonstrated his knowledge of the overal l consp iracy, but also demonstrated that the defendant's actions wer e nec essaryfor the successful execution of the conspiracy. For example , Smithand Hart testified that they stayed at the defendant's home afte r transporting cocaine from Los Angeles to Kansas City. They also store d drugs an d money from the sale of drugs at the defendant's home. Lyle s testified that he mad e drug deliveries to Gilbert Dowdy and Stubbs at the defendant's home. Testimony also indicated that the defendant allowed his automobiles to be used to transport drugs.

We rec ognize that the testimony of the witnesses may have bee n inc onsistent at times. It was the jury's duty, however, to weigh th e credi bilityof the defendant's co-conspirators regarding the day-to-da y transactions of the operation. See United States v. Lopez , 42 F.3d 463, 466 ( 8th Cir. 1994) (weighing credibility of witnesses was role of th e jury). The jury apparently resolved the inconsistencies in favor of the government. We conclude that the testimony presented at trial, combined with t he documentation of wire transfers presented, was sufficient t o supp ort the jury's conclusion that the defendant was a member of th e overall drug conspiracy.

B. The defendant challenges his conviction for money laundering

### -6-

by cl aiming that the government failed to present evidence that he wa s aware that the wire transfers which he made were proceeds of drug activity , or that the transfers were made for the promotion of the drug conspiracy. He explains that he is guilty of nothing more than holding money for his brother and sending wire transfers.

In order to prove money laundering, the government must demonstrate
(1) that the defendant conducted a financia l transaction which involved the proceeds of unlawful activity; (2) that he knew that the propert y invol ved in the transaction was proceeds of som e formo f specified unlawful activity; and (3) tha t he "intend[ed] to promote the carrying on o f specified unlawful activity . . ."
United St ates v. Cruz , 993 F.2d 164, 167 (8th Cir. 1993) (citation s omitted). We have no doubt that a reasonable jury could have foun d suffici ent evidence to support each element of this offense. Witnes s testimony and wire-tr ansfer receipts confirm that the defendant made wire transfers of $93,650 in drug proceeds.
Further, the defendant's claim of innocence is incredible. Over a spanof three years Ronald Jenkins received thousands of dollars in cash from Hart, Smith, House, and Coleman, all young men ranging in age from 15 to 19. He also was a ware that his brother lived a lavish lifestyle -- he owned mult iple homes, limousines, a Rolls Royce -- yet had no visibl e source of income. On at least one occasion, the defendant had ove r $100, 000 in cash stored in a garbage bag in his home. A jury certainl y could have concluded from this evidence that the defendant was aware that the money in question had resulted from drug activity. Lopez , 42 F.3d 463 , 467 (recognizing that jury may infer from the evidence that defendants ' money came from drug sales).

### -7- III.
Next, the defendant argues that his conviction for conspiracy t o distribute and posses s with intent to distribute cocaine must be reversed because the government failed to prove the existence of a single conspirac y as cha rged in the indictment, but instead proved multiple conspiracies
. Thi s alleged variance between the indictment and the proof presented a t trial, he argues, is fatal. In support of his argument he notes that Jame s Jenkins left the conspiracy in August of 1989. He also notes that other members of the conspiracy worked as couriers for drug suppliers other than James Jenkins.
Because the defendant failed to rais e this issue below, our standard of review is one of plain error. United States v. Griggs , 71 F.3d 276, 27 9 (8th Cir. 1995). Under this standard, we may reverse only if the error ha s harmed the defendants' substantial rights. And even if the defendant's rig hts have been affected, whether to notice the error is a matter o f discretion which is generally exercised only where the error affects the fairness, integrity, or public reputation of judicial proceedings. Ibid
.
We are not convinced that the District Court erred in this case , plainlyor otherwise. Whether the government proved a single conspiracy
or multiple conspiracies is a question of fact for the jury to decide
. United States v. Holt , 969 F.2d 685, 687 (8th Cir. 1992). The evidenc e presented at trial established that the defendant agreed to store money an d dru gs for the drug-distribution ring which included James Jenkins and a number of couriers. The fact that the conspirat ors changed over time does not necessarily establish the existence of varied conspiracies. Rather, where the remaining conspirators continue to act in furtherance of th e conspi racyto distribute drugs, the conspiracy continues. See Unite d States v. Rabins , 63 F.3d 721, 724 (8th Cir. 1995) (noting that change in drug suppliers indicated the varied phases of a

### United States Sentencing Guideline § 1B1.3(a) provides i n 3 

### part: [T]he base offense level . . . shall be determined on th e basis of the following: * * * (1 )(B) in the case of a jointly undertake n criminal activity (a criminal plan, scheme , endeavor, or enterprise undert aken by the defendant in concert with others, whethe r or not charged as a -8- single drug conspiracy). The defendant may not have been aware of every asp ect of the conspiracy or the amount of each drug transaction. Se e United States v. Edwards , 994 F.2d 417, 420 (8th Cir. 1993) (explainin g that the commission of separate crimes by co-conspirators does not rule ou t the existence of a single conspiracy), cert. denied , 114 S. Ct. 701 (1994)
. But full knowledge of "all other conspirators or all details of th e conspiracy" is not necessary "in order for a sin gle conspiracy to exist of which the defendant is a part." United States v. Adipietro , 983 F.2d 1468 , 1475 (8th Cir. 1993). Denial of the defendant's motion for judgment o f acquittal was not plain error.

IV.

The defendant advances two arguments in hopes of lowering hi s sentence. First, he claims that the Court erredin its calculation of the drug quantity for which he could be held responsible. Second, he argues that the Court erred by refusing to grant him a § 5K2.0 downward departure
. We reject both arguments for the reasons discussed below.

A.

The Court sentenced the defendant based on a criminal histor y category of I, with abase offense level of 36. The guideline sentencing range for the defendant at level 36 is 188 to 235 months. The defendant
now co ntends that the Court miscalculated the quantity of cocain e attributable to him under U.S.S.G. § 1B1.3 3

### conspiracy), all reasonably foreseeable acts an d om issions of others in furtherance of the jointl y undertaken criminal activity, that occurred during the commission of the offense o f convic tion, in preparation for that offense, or in th e course of attempting to avoid detection or responsibilit y for that offense. -9- when deter mining his base offense level. We review the Court's drug

quantity determination for clear error. Smith , 49 F.3d at 365.

Sec tion1B1.3 provides that the District Court may hold a co

conspirator responsible for "all reasonably fore seeable acts and omissions of oth ers in furtherance of the jointly undertaken criminal activity. " U.S.S.G. § 1B1.3(a)(1 )(B). Thus, a defendant may be held accountable for the cr iminal activities of other co-conspirators which "fall within th e scope of criminal activity [he] agreed to jointly undertake," includin g "other drug transactions " which "are part of the same course of conduct or scheme." United States v. Flores , 73 F.3d 826, 833 (8th Cir. 1996).
The Presentence Investigation Report (PSR) attributed responsibility to the defendant for 113.5 kilograms of cocaine based on severa l transactions between 1987 and 1990. Upon defend ant's objection, the Court mad e fact findings and concluded that the defendant was responsible fo r 113.5 kilograms. See Fed. R. Crim. P. 32(c)(1); see also Holt , 969 F.2d 685, 688 (stating that court must make factual findings when relying o n disputed facts in PSR). The Court calculated the drug quantit y attributable to the defendant on the basis of the testimony of his co

con spirators -- Reginald House, Ronald Smith, and Sanford Lyles. Thei r combined testimony provided evidence of numerous drug

### House testified that between 1987 and 198 8 he made four trips 4 

### to Kansas City transporting cocaine with a total weight of 1.2 5 kilograms. The cocaine was stored at the Jenkins house. He also testif ied that during 1988 Stubbs transported seven kilograms o f cocaine to Kansas City, which were sold, and that the $10,000 i n proceeds from the sale were gi ven to the defendant at his house by James Jenkins.
Ron ald Smith testified that he transported a total of 11.2 5 kilograms of cocaine to Kansas City during five separate trips to the city between 1987 and 1988. On each of these trips Smit h stayed at Jenkins's home, and on at least one visit, used th e defendant's car to deliver drugs. In additional testimony, Smith stated that he mailed five kilograms of cocaine to Jenkins's house, flew t o Kansas City, and arrived at the house in time to receiv e the package. Smith also left $32,000 in proceeds from the sale of 25 kilograms of cocaine, at James Jenkins's instruction, wit h Clearliss Starr to be picked up by the defendant. Lyles testified that in the summer of 1989 he gave on e kilogram of gift-wrapped cocai ne to the defendant as instructed by James Jenkins. Also, in September of that year, Stubbs tran sported 50 kilograms of cocaine to Kan sas City. The defendant was present when 30 kilograms of this coca ine were sold. Lyles also testified that James Jenkins informed hi m that one kilogram of the remaining cocaine was given to the defendant. In 1990, Lyles delivered ten kilograms of cocaine to Stubbs at the defendant's house and wa s told by the defendant to put the cocaine in his basement. Testimony at trial revealed that a total of $93,650 of drug 5 

### proce eds was sent to California by wire transfer in the name o f Ronald Jenkins, the defendant. The total amount of wire transfers exceeded $600,000. -10- transfers, and wire transfers of drug proceeds. Even though th e

4 5 defendant did not participate actively in each o f the transactions, we are convi nced that "the conduct of [his] co-conspirators was reasonabl y foreseeable . . .." Smith , 49 F.3d at 366.
We have reviewed the transcript of the sentencing hearing and t he PSR carefully, and we find a discrepancy between the testimony of House, and the facts recorded inthe PSR and the factual findings made by the Court. Accord ing to the transcript, the Court attributed 11.25 kilograms o f
coc aine to the defendant on the basis of House's testimony. Hous e

### -11-

testified that he made five trips to

### In fact, the 110.5 kilograms of cocaine attributed to th e 6 

### defendant is a conservative estimate in light of the large amount of money involved in the wire transfers. We have stated that drug quan tities may be extrapolated from such financial information
. United States v. Ortiz-Martine z , 1 F.3d 662, 675 (8th Cir.), cert. denied , 114 S. Ct. 355 (1993).

Section 5K2.0 of the United States Sentencing Guideline s 7 

### provides in relevant part: Under 18 U.S.C. § 3553(b) the sentencing court may impos e a sentence outside the range established by th e applic able guideline, if the court finds "that ther e exis ts an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken int o considerationby the Sentencing Commission in formulatin g the guidelines that should result in a sentence differen t from that prescribed." -12- Kansas City transport ing cocaine in the following amounts: nine ounces on three separate trips, 18 ounces on a fourth trip, and seven kilograms on
a fifth tri p. In the PSR, House is listed as having transported 1 0 kilograms on the fift h trip. The Court also found that he transported 10 kilograms on the fifth trip and made this finding a part of its cocainequantity calculation for § 1B1.3 purposes. This finding is not supported by the record. House testified that on the fifth trip he transported 7 kilograms of cocaine to Kansas City.

The calcu lation error in this case, however, did not impact th e defen dant's sentence. The remaining drug-quantity finding of 110. 5 kilograms, which was not clearly erroneous, still qualifies the defendant for a base offense level of 36. 6

B.

Aft er calculating the defendant's base offense level, the Cour t entertain ed his motion for a departure under U.S.S.G. § 5K2.O. I t 7 consid ered each factor in favor of departure and decided, albei t reluctantly, to deny the motion for departure. The

### -13-

defendant now claims that the Court's refusal to depart was an abuse o f discretion because th e Sentencing Guidelines do not take into account the unique circumstances of this case, including the fact that this was hi s first offense, he was employed for over 21 years, his brother's involvemen t in the conspiracy was the "main reason" the defendant himself participated , and h e did not have knowledge of the breadth of the conspiracy. In th e alternative, he argue s that his behavior was an aberrant occurrence which provides a sufficient basis for downward departure under § 5K2.0.
We may review the court's decision n ot to depart if that decision is premis ed on the belief that the court lacked the authority to do so
. United States v. Jackson , 56 F.3d 959, 960 (8th Cir. 1995). Our appellate jur isdiction, however, does not extend to a district court's refusal t o exercise its discretion and grant a departure. Ibid. The defendant's cas e falls into that category of cases over which we have no jurisdiction
. Here, the Court considered the arguments and concluded that they did not support a downward de parture under § 5K2.0. The defendant urges that the Court was not aware of its authority to depart, while the government argue s that the Court decided not to exercise its discr etion in this case. After
a c areful review of the sentencing hearing transcript, we are persuade d that the Court recognized its authority to depar t under § 5K2.0 and simply chose not to exercise that discretion based on the facts of this case.
Moreover, and in the alternative, we simply could not agree with the defendant's claim that failure to grant a downwa rd depart in this case was an abuse of discretio n. When considering a departure, a sentencing court should look "to the totality of [the] individual circumstances" t o det ermine if an unusual situation not contemplated by the Commission i s created. United Stat es v. Parham , 16 F.3d 844, 848 (8th Cir. 1994). The Court concluded that the circumstances of this c ase were not so unusual as to warr ant a departure. Based on the evidence before us, we cannot sa y that

### The Court made the following observation when considering the 8 

### defendant's aberrant-behavior argument:

So I d on't think 5K2.0 is -- can legitimately b e used to place an argument before the sentencing judg e tha t, "Hey, we have a good person here" unless, unles s you have the kind of situation that the courts hav e recognized as being aberrant behavior. And that is the si ngle instance, out of the blue, and apparently no t follo wed up on. I mean, of a single instance of, fo r instance, violent behavior, . . . no previous history of ass aultive behavior and no history after. It's just a blip on the screen.
No wthat isn't the evidence with regard to thi s defendant. The evidence with regard to this defendant i s a blip that lasted for a relatively long time. It wasn' t th at on one occasion, at one time, he inadvertently , accidentallyor intentionally, but for one occasion , allowed somebody to come to hi s house and stay overnight who it turned out later was a drug dealer.

The evidence in this case is that the defendant in a number of different ways con tributed to the success of this criminal conspiracy over a lengthy period of time. Not days, not months, but years. S. Tr. 103-04. -14- this finding was mistaken.

In cer tain cases, we have recognized that a departure based on a single act of aberran t behavior may be warranted. Ibid. ; but see United States v. Bieri , 21 F.3d 811, 819 (8th Cir.) (first-time offender status does not justify a downward departure), cert. denied , 115 S. Ct. 20 8 (1994). We have defi ned a single act of aberrant behavior as an act that is "spontaneous and seemingly thoughtless." United States v. Atkins , 25 F.3d 1401 , 1405 (8th Cir.), cert. denied , 115 S. Ct. 371 (1994). Th e defendant's ongoing involvement in the drug cons piracy and in the transfer of drug proceeds over a five-year period does not appear to fall into the category of aberrant behavior. See United States v. Premachan dra , 32 F.3d 8 346, 349 (recognizing "that a spontaneous and

### -15-

seem inglythoughtless act may be a basis for departure"). Thus, th e Court' s denial of the defendant's § 5K2.0 motion was not an abuse o f discretion.

V.
The defendant's convictions and his sentence are affirmed.

A true copy.

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