## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1344

_____________ Andrew Jones, * * Appellant, *

* v. * * United States of America, * * Appellee. *

_____________ Appeals from the United States No. 97-2235 District Court for the

_____________ Eastern District of Missouri.
Felton J. Sykes, * * Appellant, *

* v. * * United States of America, * * Appellee. *

_____________ Submitted: January 12, 1998

Filed: May 27, 1998

_____________The Honorable John B. Jones, United States District Judge, United State s 1 District Court for the District of South Dakota, sitting by designation. The Ho norable Catherine Perry, United States District Judge, United State s 2 District Court for the Eastern District of Missouri. -2- Before BOWMAN, Chief Judge, BRIG HT, Circuit Judge, and JONES , District Judge. 1

_____________ JONES, District Judge. Andrew Jones (“Jones”) was convicted by a jury of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846, and with distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Felton Sykes (“Sykes”) was charged in the conspiracy count and entered a plea of guilty thereto. Jones was the only one of twenty-one alleged conspirators to proceed to trial. The District Court 2 sentenced Jones to 360 months’ imprisonment and sentenced Sykes to 84 months ’ imprisonment. Jones appeals his conviction and the sentence he received. Syke s appeals his sentence. We affirm.
I. BACKGROUND
The defendants were invol ved in a conspiracy to distribute heroin and cocaine in the St. Louis, Missouri area. The two ringleaders of the c onspiracy were Lamond Sykes (a cousin of

defendant Sykes) and Eluterio Reyes (“Reyes”). Lamond Sykes led th e conspiracy in its distribution of drugs in St. Louis. Reyes, of Phoenix, Arizona, was the ma in supplier of drugs to the conspiracy. Various members of the conspirac y transported drugs and money between Phoeni x, Arizona and St. Louis, Missouri. Other members prepared the heroin for retail sale and distributed the heroin to primary distributors and ultimate consumers. All tw enty-one members of the conspiracy, except Jones , plead guilty and were sentenced to various terms of imprisonment ranging from-3-

18 months t o 276 months. The ringleaders, Lamond Sykes and Reyes, were eac h sentenced to 276 months’ imprisonment.
A. Felton Sykes Sykes was charg ed with participating in the conspiracy from September of 1991 to June of 1994. Sykes was held responsible for distributing approximate ly 28 kilograms of heroin and 595.35 grams of cocaine. Sykes assisted in the preparation of heroin for retail sale, stored

heroin, packaging materials, and money from the sale of heroin at his residence , and met with Lamond Sykes, one of the ringleaders of the conspiracy, t o obtain he roin and make payment for heroin previously supplied to Sykes. Sykes wa s ran ked sixth to eighth in culpability amongst the twenty-one defendants charged in the conspiracy. Sykes claims his involvement in the conspiracy ended when he wa s inc arcerated on state drug convictions from October of 1992 to February of 1993

. Howe ver, a federal search warrant executed in June of 1994 at Sykes’ business an d residence resulted in the seizure of over 300 grams of heroin. Sykes does not attempt to explain the existence of thi s heroin, which was seized over a year after Sykes asserts he ceased participation in the conspiracy.
The guide line range for Sykes was 135 to 168 months’ imprisonment. Th e Di strict Court granted the government’s motion for a downward departure, unde r U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based on Sykes’ substantial assistance i n the investigation and prosecution of other persons who were involved in the conspiracy. Sykes was s entenced to a term of imprisonment of 84 months, a term of supervise d release of 3 years, and was ordered to pay a special assessment of $50. Sykes claims the District Court erred in denying him a minor participant reduction under U.S.S.G. § 3B1.2(b) and the District Court erred in failing to depart sufficiently to cure t he disparity in sentences received by Sykes and other, more culpable , codefendants. The government argues that Sykes did not preserve for review-4-

the issue of the minor participant reduction and that the disparity in sentences argument has no merit.
B. Andrew Jones
Jones was charged with participating in the conspiracy from the winter of 1986 to December 22, 1994. J ones was held responsible for distributing approximately 71.5 kilo grams of heroin and approximately 595.35 grams of cocaine. The District Court imposed a sentence of 360 months’ imprisonment on the conspiracy count and 24 0 mon ths’ imprisonment on the distribution count, to be served concurrently; 5 years o f supervis ed release on the conspiracy count and 3 years of supervised release on th e distribution count, to run concurrently; and a special assessment of $100.
Jones wa s a street level seller, selling “buttons” of heroin to addicts in the St

. Louis area. Terry Martin testified at Jones’ tri al that he and Jones, among others, began selli ng buttons from houses and then sold from vehicles when law enforcement started busting houses where drugs were being sold. Jones was als o present on occasions when heroin was being prepared and packaged for retail sale.
Jones s ought a downward departure on the basis of reduced mental capacity

. During the sentencing hearing, Jones called Dr. Dani el J. Cuneo, a clinical psychologist, to establis h that Jones was entitled to such a departure. Dr. Cuneo opined that Jone s suff ered schizo-effective disorder, depressed type, and that he was mildly mentall y reta rded. He opined that Jones functioned at the level of an eight- or nine-year-ol d person. Dr. Cuneo determined that Jones had an IQ of 53. The government called Dr. John Rabun, a forensic psychiatrist, to dispute Jones’ claim that he suffered from reduced mental capacity which would entitle him to a downward d eparture. Dr. Rabun testified that Jones’ alleged conduct of engaging i n business activities, including setting up drug buys at specific locations, answering-5-

hundreds of pages on his beeper per day and handling large sums of money, ar e inconsist ent

with mental retardation. Dr. Rabun also stated that Jones’ conduct i n conforming to the conditions of his release on bond and his knowledge of suc h condition s are inconsistent with mental retardation. Dr. Rabun testified that althoug h Jones has a mental condition, that mental condition did not cause or contribute to hi s criminal activity.
The Dist rict Court denied Jones’ motion for downward departure based o n reduced mental capacity. After considering the evidence presented by Dr. Cuneo and Dr. Rabun and the arguments of counsel, the District Court did not find that Jones ’ mental capacity was significantly reduced or tha t it contributed to the commission of the offense.
Jones r aises four issues in this appeal: (1) the District Court erred in admittin g guilty pleas of non-testifying codefendants; (2) the District Court abused its discretion in admitting evidence regarding Jones’ un charged, subsequent drug transactions; (3) the Dist rict Court’s finding that Jones did not have reduced mental capacity led it t o mis takenly believe it did not have authority to depart for Jones’ mental illness an d retar dation, therefore, the District Court erred when it refused to depart; and (4) th e District Cou rt erred in holding that it could not depart on the basis of the disparat e sentences received by others more culpable than Jones.
II. DECISION
A. Felton Sykes Where a defendant fails to object to the presentence report, we review for “ < plain error resulting in a miscarriage of justice.’” United States v. Flores , 959 F.2d 83, 88 (8th Cir.) (citation

omitted), cert. denied , 506 U.S. 976 (1992). Sykes asserts that although his attorney failed to raise an objection to the presentence report prior to his-6-

first sentencing hearin g, Sykes personally raised the issue of his limited participation in a resentencing hearing. We disagree. In his statement to the District Court during the resent encing hearing, Sykes stated that he should not be held responsible for the ful l amount of the heroin dis tributed during the conspiracy because he was not involved for the en tire time the conspiracy was active. Neither Sykes nor his attorney requested a reduc tionunder U.S.S.G. § 3B1.2(b) for being a minor participant. Therefore, w e review for plain error resulting in a miscarriage of justice. Flores , 959 F.2d at 88. Sykes c arries the burden of proving he is eligible for a decrease in the bas e offense level on the minor nature of his participation in the offens e of conviction. United State s v. Wilson , 102 F.3d 968, 973 (8th Cir. 1996). We have explained that “[a ] defendant who is concededly less culpable than his codefendants is not entitled to th e minor participant reduction if that defendant was ‘deeply involved’ in the criminal acts.” United States v. Thomps on , 60 F.3d 514, 518 (8th Cir. 1995) (quoting United States v. West , 942 F.2d 528, 531 (8th Cir. 1991)) . Sykes did not object to the conclusion in the presentence report that he was ranked sixth to eighth in culpability amongst the twentyone codefend ants. He did not dispute that he helped prepare heroin for retail sale, that he stored heroin, packaging materials and money at his residenc e, or that he met with his cousin, Lamond Sykes, for the purpose of obtaining heroin and making payment fo r heroin previously supplied to Sykes. The District Court found that Sykes’ involvement in the conspiracy was “substantial.” It is clear from the record in this case that Sykes was “deeply involved” in the criminal acts of the drug conspiracy. We do not find plain error resulting in a miscarriage of justice in fa iling to grant Sykes a reduction in the base offense level for being a minor participant in the drug conspiracy. Sykes’ second argument in this appeal is that the District Court erred in failing to dep art sufficiently to cure the disparity in sentences received by Sykes and other more cu lpable codefendants. Jones’ disparity in sentences argument is foreclosed by thi s Court holding that “[d]isparity between sentences imposed on codefendants is not-7-

a proper basis for departure.” United States v. Polanco , 53 F.3d 893, 897 (8th Cir

. 1995), cert. denied , 518 U.S.1021 (1996); and United States v. Wong , 127 F.3d 725 , 728 (8t h Cir. 1997). “A defendant cannot rely upon his co-defendant’s sentence as a yar dstick for his own; a sentence is not disproportionate just because it exceeds a co

defendant ’s sentence.” United States v. Granados , 962 F.2d 767, 774 (8th Cir. 1992). Altho ugh Congress enacted the Sentencing Guidelines to promote proportional an d uniformsentences for the same criminal activity, “some disparity will inevitably exis t because of t he unique facts of each individual defendant’s case.” Wong , 127 F.3d a t 728.
B. Andrew Jones
Jones’ first claim i s that the District Court erred in admitting guilty pleas of nontestif ying codefendants. During cross-examination by Jones’ counsel regardin g transcripts of taped conversations, the government’s case agen t stated, “... the rest of the defendants having plead guilty, we did not use [a summary book of transcripts].”
The trial court has broad dis cretion to admit evidence and we will reverse only if the trial court abused its discretion. United States v. Rogers , 939 F.2d 591, 594 (8t h Cir.), cert. denied , 502 U.S. 991 (1991). If a guilty plea of a codefendant is brought into a trial , either directly or indirectly, “trial courts must ensure it is not being offered a s substantive proof of the defendant’ s guilt.” Id. The defendant’s right to a fair trial may be seriousl y prejudiced if such pleas are mentioned at trial. Id. The facts an d circu mstances of how a plea was used at trial must be carefully scrutinized by th e appellate court. Id. “It is essential to consider such factors as whether the court gave the jur y a limiting instruction, ‘whether there was a proper purpose in introducing th e fact of the guilty plea, whether the plea was improperly emphasized or used a s substantive evidence of guilt, and whether the introduction of the plea was invited by the defense counsel.’” Id.-8-

The test imony Jones complains of was not elicited by the government and th e government did not i mproperly emphasize it or use it as substantive evidence of Jones’ guilt. It appears that this testimony was volunteered by t he case agent. Defense counsel did not necessarily invite the case agent’s ref erence to the guilty pleas, but the reference wa s made while defense counsel was cross-examining the case agent. Jones did no t requ est, and the District Court did not give, a limiting instruction regarding the cas e agent’s testimony. Given the limited reference to the guilty pleas, and the government’s choice not to emphasize the guilty pleas to the jury, we find that Jones’ counsel made a tactical decision not to request a limiting instruction. Under the circumstance s presented by this case, we do not find plain error in the District Court’s failure to give a cautionary instruction. Id.
The second argument advanced by Jones is that the District Court abused it s discretion in admitting evidence of Jones’ uncharged, subseque nt drug transactions. The evidence which Jones objects to is the testimony of the government’s case agent. When defense counsel asked if Lamond Sykes was still supplying Jones with drugs after May of 1994, the case agent responded, “Not necessarily, no. I’m saying that [Jones] wa s still selling drugs.” The case agent made additional statements that Jones was sellin g drugs between May of 1994 and December of 1994. Fed.R.Evid. 404(b) is a rule of inclusion: “we w ill overturn the admission of Rule 404(b) evidence only if ‘the appellant can show that the e vidence in question clearly had no bearing upon any of the issues involv ed.’” United States v. Baker , 82 F.3d 273, 276 ( 8 th Cir.), cert. denied , ___ U.S. ___, 117 S.Ct. 538 (1996). Jones has failed to make su ch a showing in this case. We have held that “[e]vidence of similar drug activity i s admissible in a drug prosecution case becaus e ‘a defendant’s complicity in other similar transactions serves to establi sh intent or motive to commit the crime charged.’” United States v. Johnson , 934 F.2d 936, 940 (8th Cir. 1991) (citation omitted). Although the evidence at is sue in this case relates to Jones’ drug selling activities after he left th e conspiracy charged in the indictment, the mere subsequency-9-

of such acts do not, solely on those grounds, make the evid ence incompetent to establish intent or motive. Id. The evidence at issue here indicates that Jones continued to sell drugs after he left the conspiracy led by Lamond Syk es. This evidence is similar in kind and close in time to the drug activity Jones engaged in while a member of the conspiracy charged in the indictment. The Rule 404(b) evidence Jones objects to wa s elicited by Jones’ attorney during cross- examinationof the government’s case agent. Testimony elicited by defens e co unsel on cross-examination regarding Rule 404(b) evidence is admissible. Unite d States v. Kragness , 830 F.2d 842, 866, n. 23 (8th Cir. 1987). The District Court did not abuse its discretion in admitting the evidence of Jones’ uncharged, subsequent dru g activities.
Jones’ third argument is that the District Court erred in refusing to downwardly depa rt because the court’s finding that Jones did not have reduced mental capacity led it to mistak

enly believe it did not have authority to depart for Jones’ mental illness and retardation. The government asserts that although the District Court did not decide to depart based on

reduced mental capacity, the District Court did recognize its authority to depart downward for diminished capacity. We agree with the government. Th e District Court clearly stated during the sentencing hearing that although it had the ability under the guidelines to depart where a defendant’s sig nificantly reduced mental capacity contributed to the commission of th e offense, the court refused to so depart in this case. This refusal to depart was based on the District Court’s finding that Jones’s menta l capacity was not significantly reduced, or even if it was lower than normal, it did no t contribute to the commission of the offense in this case.
We lack authority to review a sentencing court’s exercise of its discretion t o refr ainfrom departing either upward or downward from the range established by th e appli cable Sentencing Guideline. United States v. Evidente , 894 F.2d 1000, 1004-0 5 (8th Cir.) cert. denied , 495 U.S. 922 ( 1990); and United States v. Follett , 905 F.2d 195,-10-

197 (8th Cir. 1 990) (holding that the district court’s refusal to depart downward on the basis of the defendant’s psychological problems and diminished capacity was no t reviewable on appeal), cert. denied , 501 U.S. 1204 (1991). “Failure to depa rt downward is reviewable only if the district court did not realize that it had the discretion to consider a downward departure.” United States v. Knight , 58 F.3d 393, 398 (8th Cir. 1995 ) (citation omitted), cert. denied , 516 U.S. 1099 (1996). The District Court clearl y recogniz ed its authority to depart in this case, and, therefore, the court’s decisio n refusing Jones’ request for a downward departure based on diminished mental capacity is unreviewable on this appeal.
Jones’ final argument is that the District Court erred in holding that it could not depart o n the basis of the disparate sentences received by others more culpable tha n Jones. Jones’ sen tence guideline computation was based on an offense level of 40 and a criminal history category of III, resulting in a sentence range of 360 months to life. If Jon es had pled guilty and received a 3-level reduction for acceptance o f responsibility under Section 3E1.1(a)( b)(1)(2), his sentence range would have been 262 months to 327 mont

hs. By going to trial, Jones raised his minimum sentence under the guidelines by 98 months. The two ringleaders of this conspiracy, who pl ed guilty but did not otherwise provide any assistance to the government, each received sentences of 276 months, probably as a result of a 3-level reduction for acceptance of responsibility.
Jo nes joined the conspiracy near its beginning, and there was evidence tha t Lam ondSykes had stated that Jones was his most loyal and steady worker. Th e presentence reports attributed the same drug amounts to Lamond Sy kes and Jones on the conspiracy charges.
As stated above in c onnection with Sykes’ disparate sentences argument, Jones’ argument is precluded by our prior holding that disparity in sentences among-11-

codefendants is not a proper basis for a departure. See Wong , 127 F.3d at 728; an d United S tates v. Reeves , 83 F.3d 203, 207 (8th Cir. 1996) (holding a defendant’ s argumentthat his sentence is disproportionate to his codefendants, considering hi s comparably minor role in the of fense, was precluded by prior Eighth Circuit decisions).
Alt hough Jones’ sentence is significantly heavier than other more culpabl e members of the drug consp iracy, this Court’s review of Jones’ sentence imposed under the Sentencing Guidelines is l imited to determining whether it “was imposed as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(a)(2); see also , Granados , 962 F.2d at 774. We find that the District Court correctly applied the Sentencing Guidelines in Jones’ case.

. III. CONCLUSION The judgment of the District Court in both cases is affirmed. BRIGHT, Circuit Judge, concurring in part and dissenting in part.
I concur in th e result reached by this court with respect to the appeal of Felto n Sykes. I m

ust dissent, however, in this court’s affirmance of Andrew Jones’ sentence.
I. An Unfair Criminal System
The sentence of Jones, a man with the mind of a child, to thirty years o f incarceration makes a mockery out of the phrase, “Equal Justice Under the Law.” In this case, the lowest person on the totem pole, a mere street-level seller with an I.Q. of fiftythree rece ived a heavier sentence than the mastermind of the conspiracy and th e conspiracy’s prim ary drug supplier. What kind of system could produce such a result? This case provides yet another example of how rigid sentencing guidelines and theI use the term criminal system rather than criminal justice system because the 3 present scheme of sentencing guidelines and mandatory minimums often produces an unfair or inequitable result. These comments were in response to questions from the court at oral argument. 4 -12- mandato ry minimums associated with drug cases make an unfair “criminal” system
. 3 Moreove r, even under the Sentencing Guidelines, the district court should hav e determ inedthat Jones’ limited mental capacity probably prevented him fro m comprehending the conspiracy’s activities other than those sales that he personally made. Jones’ thirty-year sentence represents the heaviest sentence given to any member of this tw enty-one person drug conspiracy. Lamond Sykes, the kingpin of th e conspiracy, and Eluterio Reyes, the primary drug supplier, each received a sentence of twenty-three years. Roberta Farr, who served as an alternative source for heroin , received only two years' inca rceration. The prosecutor in this case concedes that Jones served only as a street-level seller and that Jones received a harsh sentence. Th e prosecutor states that had Jones pleaded guilty, he would have received a lesse r sentence, and that Jones’ insistence on exercising his Constitutional right to a tria l justified his heavy sentence. In turn, Jones’ defense counsel asserted that he told Jones that counsel would accept a plea agree ment but believes that because of Jones’ reduced mental c apacity that Jones may not have understood the need to accept the ple a agreement. 4
The cr iticism for this heavy sentence imposed on the least responsible person in the conspiracy i s not directed at the district court or the attorneys. The injustice in this case rests wi th our faulty system of sentencing guidelines and mandatory minimums. I add this case to my litany of opinions criticizing the guidelines. See, e.g. , Montanye v. Unite d States , 77 F.3d 226, 233 (8th Cir.) (Bright, J., dissenting) (“By any ordinar y measure outside the guidelines, I would think this sentence would be considered-13-

draconian, unnecessarily harsh and unreasonable.”), c ert. denied , 117 S. Ct. 318 (1996); United States v. Hiveley , 61 F.3d 1358, 1363 (8th Cir. 1995) (Bright, J., concurring ) (“The se unwise sentencing policies which put men and women in prison for years, not only ruin lives of prisoners and of ten their family members, but also drain the American tax payers of funds which can be measured in billions of dollars.”); United States v

. O’Meara , 89 5 F.2d 1216, 1221 (8th Cir. 1990) (Bright, J., dissenting in part an d concurring in part) (“This cases opens the window on the sometimes bizarre and topsytu rvy world of sentencing under the Guidelines.”). Regrettably, the primary cons ideration under our present sentencing scheme is not criminality, but rather on the weight of the drugs charged to a de fendant plus the information a defendant will give to h i s or her prosecutor. In this case, the kingpin (Sykes) and other primary actors in the cons piracy had something to sell in exchange for lighter sentences: information o n und erlings. For informing on lesser partners in crime, the kingpins received reduce d sentences for “acceptance of responsibilit y.” “Acceptance of responsibility” reductions are usually m ore of a reward for being a snitch rather than a recognition of tru e repentance
. For their part, the underlings are rarely privy to workings of the overal l conspiracy and consequentl y have nothing to sell to the prosecutor. The circumstances in this case compel me to repeat what I stated in United States v. Griffin :
What kind of a criminal justice system rewards the drug kingpin or nearkingpin who informs on all the cr iminal colleagues he or she has recruited, but sends to prison for years and years the least knowledgeable or culpable conspirator, one who knows very little about the conspiracy and is without information for the prosecutors?

Griffin , 17 F.3d 269, 274 (8th Cir. 1994) (Bright, J., dissenting).As reflected in the Presentence Report, the probation officer accepted th e 5 government's testimony that the overall conspiracy sold a bout one ounce (28.35 grams) of heroin per day between the Winter of 1986 and May of 1994, totaling 77.42 kg of heroin. PSR at p.8, ¶ 24. Furthermore, the probation officer credited testimony that forth ree weeks during the Summer of 1994, the conspiracy sold approximately on e ounce (28.35 grams) of cocaine per day, for a total of 595.35 grams of cocaine. Id

. The probation

officer concluded that because Jones entered the conspiracy soon after it began, Jones was responsible for 71.5 kg (almost all of the total amount) of heroin and 595.35 grams (the entire amount) of cocaine. Id. ; Add. to PSR at #5. -14- II. Plain Error – Calculation of Drug Amounts Against Jones
Even under the Sentencin g Guidelines, the district court committed clear error in calculating the drug amounts attributa ble to Jones. For a defendant to be sentenced for

5 drugs distributed by his or her co-conspirators, t he distribution of drugs must have been: “(1) in furtherance of the conspiracy and (2) reasonably foreseeable to [the defendant].” Se e United State v. Montanye , 962 F.2d 1332, 1347 (8th Cir. 1992), rev’d on othe r gro unds , 996 F.2d 190 (8th Cir. 1993) (en banc) (citations omitted). “For activities of aco-conspirator to be reasonably foreseeable to a defendant, they must fall within the scope of the agreement between the defe ndant and the other conspirators.” Id. (citation omitted).
What would the reader of this opinion think about a thirty-year prison sentenc e for an eight- or nine -year-old boy (the mental level at which Jones functions), who was charged with drug distribution? A person of this level of intelligence is not likely t o compre hendthe scope of the conspiracy. Simply stated, Jones did not possess th e mental capacity to comprehend the drug distribution scheme beyond performing the tasks th athe was ordered to do. Therefore, the district court should have rejected th e Presentence Report’s conclusion that Jones was responsible for al most the entire amount of drugs sold by the conspiracy, or at least held a hearing on this issue.-15-

In attem pting to justify the length of Jones’ sentence, the government contend s that Jones p layed an elevated role in the conspiracy ring. Specifically, the government no tes the following factors: (1) Jones joined the conspiracy near the beginning; (2 ) Sykes con sidered Jones one of his most trusted employees; and (3) Jones trained an d supervised new street-level sellers. The government’s position lacks substa ntial merit. The fact that Jones joined the conspiracy near the beginning indicates nothing as to Jones’ role in the conspiracy

. Furthermore, Sykes would no doubt consider Jones a trusted employee because Jones did only what Sykes and oth ers told him to do and knew nothing of the overall scheme. Finally, the duties of street-level drug seller in this conspiracy included driving a vehicle to a designated area and ex changing drugs for money. Consequently, Jones’ “training” and“supervision” of new street-level sellers hardly suggests that Jones possesse d advanc ed mental capabilities. Interestingly, the government itself presented evidenc e indicating over 500 telephone calls between Jones and Sykes during a three-month period. This evidence shows that because of Jones’ red uced mental capacity, he needed constant a nd perhaps repeated directions to even carry out the simplest duties of th e conspiracy. The record also discloses that although the Presentence Repor t describes at length the activities of different members of the conspiracy, the Presentence Report makes only brief mention of Jones’ role. Specifically, the Presentence Report makes only th e following notations in reference to Jones: (1) Jones (with Bruce Lee) sold an undercover detec tive .98 grams of black tar heroin; (2) a confidential informant told police tha t several in dividuals, including Jones, were involved in selling heroin in the St. Louis , Missouri area; (3) during 1987, Jones joined the Sykes’ conspiracy, at which time the co-c onspirators began selling increased amounts of heroin and cocaine in button form; (4) Sykes utilized several individuals, including Jones, to distribute the heroin in the St. Louis, Miss ouri area; and (5) when police arrested Jones, he was carrying a gun. I f Jones had such an elevated position in Sykes’ drug scheme, theIn Fiscal 1995, we estimate the average cos t per day per inmate will be $60.26, 6 with an average annual amount of $21,995. Letter fro m Kathleen M. Hawks, Director, United St ates Department of Justice, Federal Bureau of Prisons, to the Honorabl e Myron H. Bright (July 6, 1995) (on file with Judge Bright). According to the same study, low-level drug offenders comprised 36.1% of all 7 incarcerated drug offenders. -16- Presentence Report would certainly cont ain more notations concerning Jones other than repeating that which is undisputable--Jones sold drugs for Sykes on the street. Indeed, nothing in the Presentence Report supports the government’s attempt to paint Jones as anymore than an unintelligent low-level drug seller. Finally, I must comment on one fu rther aspect of this case, which is the high cost and relati vely low benefit of incarcerating large numbers of drug offenders fo r exces sively long periods of time. In this case, the government obtained the conviction of twenty-one defendants, resulting in sentences exceeding 2 04 years. Based upon 1995 figures and excluding the inflation factor, the cost of incarcerating all the defendant s from this conspiracy alone totals almost $4.5 million. 6
The imposition of excessive sentences produces a tremendous monetary cost to the government and therefore the taxpayers. A United States Department of Justic e analysis, released on February 4, 1994, showed that 16,316 federal prisoner s inca rcerated on drug charges were low-level drug offenders. These low-level dru g 7 offender s were non-violent, had previously experienced little or no contact with th e criminal justice system, and played only low-level or periphera l roles in drug distribution schemes. U .S. Dep’t of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories , p.6 (1994). Yet, these low-level offenders received average sentences of 6.8 years, primarily due to mandatory minimums. In fact, two-thirds of the low-level drug offenders-17-

received mandator

y minimum sentences. In 1994, the Federal Judicial Center released a st udy on the effect of mandatory minimums and current guideline sentencing. That study provided:
We know from previous work by the Bureau of Prisons that 70% of th e prison growth related to sen tencing since 1985 is attributed to increases in dr ug sentence length. “(D)rug law offenders alone are consuming thre e times mor e resources than all other federal crimes combined. . . unles s Congress and the Sentencing commission change drug sentence s, relief will be nowhere in sight.

Federal Judicial Center, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings , p.6 (1994).
In Hiveley , 61 F.3d at 1363-64, this writer discussed the enormous costs o f incarcerating drug offenders for excessive periods of time:
This is the time to call a halt to the unnecessary and expensive cost o f putt ing people in prison for a long time based on the mistaken notion that such an e ffort will win “The War on Drugs.” If it is a war, society seems not to be winning, b ut losing. We must turn to other methods of deterring drug distribution and use. Long sentences do not work . . . and penaliz e society.
Jones, age thirty-five at the time of sente ncing, will probably spend the rest of his natural l ife in prison (assuming he lives to age 65 in prison). The cost to the taxpayers for this incarc eration will probably exceed $750,000. If this sentence is lawful, it does not serve the cause of justice or the public interest.Ju dge Broderick died on March 3, 1995. The Pace University Law Revie w 8 published a tribute to this fine jurist. 16 Pace L. Rev. 187 (Winter 1996). As t he concurring opinion noted in United States v. Hiveley , 61 F.3d 1358 , 9 1364 (8th Cir. 1995) that 86.4% of federal sentencing judges support changing current sentencing rules. -18- III. Disparity and Inequity
United St ates District Judge Vincent L. Broderick of New York spoke to th e 8 Subcom mittee on Crime and Criminal Justice of the Committee on the Judiciary of the Hou se of Representatives at the Congress of the United States almost five years ag o (July 28, 1993 ). See VINCENT L. BRODERICK, STATEMENTS BY VINCENT L. BRODER ICK

BEFORE THE SUBCOMMITTEE ON CRIME AND CRIMINA L JUSTICE OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE O F REPRESENTATIVES (1993) [hereinafter “Statement of Vincent L. Broderick”]. At that time, Judge Broderick served as chair of the Committee on Criminal Law of the Judici al Conference of the United States. He spoke as an experienced, practical and i ntelligent federal judge on behalf of the Committee and indeed federal judge s everywhere. Judge Broderick was no soft-headed judge. He had served as a deput y

9 po lice commissioner in New York, then police commissioner and as a prosecutor. He had served as a federal district judge since 1976.
In no unc ertain terms he told the subcommittee that mandatory minimu m sen tences which drive guideline sentencing in many cases make it "impossible for th e judge, today, fairly and honestly to perform his or her role." (Statement of Vincent L. Broderick, at 4). He spoke of the "u nfairness of sentencing that results from mandatoryThe Broderick statement noted that more than 100 feder al mandatory minimum 10 penalties exist in 60 crimin al states but four statutes, these dealing with drug offenses, account for 94% of cases where mandatory minimum sentences have been imposed. -19- minimum sentences and some of the characteristics of the federal mandatory system that exacerbate unfairness, particularly for drug offenses." Id. 10
The Broderick statement concerning the unfair impact of sentences based o n mandatory minimum penalty statutes is graphically illustrated by the instant Jones ' sentence. Jones' sentence of thirty years under the guidelines is driven and controlled by a mandat ory minimum sentence of at least ten years--twenty years where a prio r felony existed against the offender. The mand atory minimum applies to 1 kg or more of heroin. In this case, the probation officer (not the judge) attributed 71.5 kg. of heroin to Jones and certain others in the conspiracy by an estimate that from the winter of 1986 to Ju ne 1994, the conspiracy distributed an average of one ounce of heroin per day for a total of 77.42 kg of heroin.
The attribution to Jones, 71.5 kg of heroin, rested not on his actual sales nor his knowledg e of the extent of the conspiracy but apparently on the days and weeks h e served the conspiracy. As we have already observed, Jones, the low person on the totem pole, received the harshest sentence.
The reason for such an unfair sentence in a drug case can be explained by Judge Broderick's comments. We quote them in part below:
1. Ma ndatory minimums are inherently unfair because thei r appl ication depends, in most cases, upon the presence of onl y one factor. An inherent vice of mandatory minimum sentences is that they are designed for the most culpable criminal, but they capture many who are-20-

conside rably less culpable and who, on any test of fairness, justice an d proportionality, would not be ensnared.
(Statement of Vincent L. Broderick, at 7). Those comments apply in this case.
2. Unfairness of Quantity Based Mandatory Minimum Sentences. Use of the amounts of drugs by weight in setting mandatory minimum sentences raises issues of fairness because the amount of drugs in the offe nse is more often than not totally unrelated to the role of th e offender in the drug enterprise. Individuals operating at the top levels of drug enterprises routinely insulate themselve s from possession of the drugs and participation

in the smuggling or transfer functions of the business. It is the participants a

t the lower levels--those that transport, sell, or possess the drugs--that are caught with large quantities.

Id. at 10. Those comments apply in this case.

3. Un fairness of Mandatory Minimum Drug Sentences Based o n Weight Without Regard for Purity. Since the relation of the carrier medium to the drug increases as the drug is dilute d in movement to the retail level, the unfairness of imposin g automatic sentences based on amount without regard to role in the offense is compounded by failure to take purity into account. Id. at 11. These comments do not apply to Jones. 4. Unfairness in Applying Conspiracy Principles to Mandator y Minimum Drug Sentences. Anot her significant factor of unwarranted unfairness in mandatory minimum sentencing is the application of conspiracy principles to-21-

quantity-dr

iven drug crimes. Under the Pinkerton doctrine of conspiracy, accomplices with minor ro les may be held accountable for the foreseeable acts of other conspirators in furtherance of the conspiracy. A low-leve l conspirator is subject to the same penalty as the kingpin. . . . Id. at 11-12. This comment applies here. 5. Unfairness For Failure to Take Role in the Offense i nto Account in Setting Mandatory Minimum Sentences. Failure to permit the sentencing judge to take into account the role of th e offender in the offense, particularly for business enterprise typ e offens es, is probably the most central unfairness factor in mandatory minimum sentencing. Indeed, role in the offens e is far more reflective than amount of drugs of the dangerousnes s and culpability of the individual and of his or her reward from, and level in, the criminal enterprise. Id. at 12. This comment applies here. 6. Unfa irness in the Operation of the "Substantial Assistance " Factor with Respect to Mandatory Minimum Sentences. An ostensible purpose of mandatory minimums is to remov e discreti onfrom the sentencing process. It is axiomatic that there is n o departure from a mandatory minimum under current federal law. No departure, that is, unless the prosecutor initiates it.

. . . The government (prosecutor) exclusively holds this authority

. Problems of inequities arise fo r three reasons; the more culpable offenders hav e more information to bargain with than low-level offenders who may have limited contact with conspirators; there are seri ous inherent incentives to perjury; and prosecutors indulge a wide varietyof unstructured practices with respect to substantial assistance motions.We also know from United States v. Romero , 118 F.3d 576, 582-83 (8th Cir.) 11 (Bright, J., dissenting), modified , 128 F.3d 1198 (8th Ci r.), cert. denied , 118 S. Ct. 611 (1997), an appeal of several of Jones’ co-conspirators, that a father sold out the mother of his children presumably for sentence co nsideration by the prosecutor. Interestingly, the Presentence Report in the instant case now reveals that Graseda, the father wh o turned on Romero, the mother of his children, received 24 months to the mother' s mandatory minimum of 60 months (five years). -22- Who i s in a position to give such "substantial assistance?" Not the mule who knows nothing more abo ut the distribution scheme than his own role, and not the street-level distributor.

. . . . Th ere is no apparent consistency or uniformity between variou s UnitedStates Attorney's offices in the making of "substantial assistance" motions. . . . The se sentencing results, affected by decisions related t o prosecutorial discretion, raise concerns regarding the sentencing objectives of certainty of punishment, proportionality, and unwarranted disparity.

Id. at 13-15.
How t rue those observations are in number 6 as applied to Jones and his co

consp irators! We have attached as appendix A to this dissent a tabulation of th e sentences imposed on the twenty-one members of the conspiracy which graphicall y demonstrates that consistency in mandatory minimum and guideline sentencing is a myth. The s entences ranged from a low of eighteen months to 360 months (thirty years fo r Jones). Al l offenders were subject to mandatory minimum sentences of at least fiv e years. 11-23-

7. Unfairness in Application of Mandatory Minimum Sentences. In thir ty-five per cent of the cases where the facts seemed to warrant a mandato ry minimum sentence, the defendants involved pleaded guilty t o statutes or crimes carrying non-mandatory minimu m sentencing provisions. This ph enomenon should not come as a big surprise. Studies show tha t manda tory minimum sentencing practices influence participants at every le vel in the process--the investigator, the prosecutor, the jury, and th e judges--as each reacts to ameliorate broadly perceived unfairness. Id. at 16-17. That observation may apply here. 8. Unfairness Related to Effect of Mand atory Minimum Sentences on Sentencing Guidelines. The mandatory minimums have also had the effect of skewin g onwards and upwards the sentences which the Guidelines prescribe, as the Sentencing Commission has attempted to achieve proportionality whil e adapting to the mandatory minimums.

. . . . Thus mandatory minimum penalties have hindered the development of proportionality in the Guidelines , and are unfair not only with respect to offenders who are subject to them, but with respect to others as well.

Id. at 17-18. Certainly that observation applies to Jones. The guidelines applie d prop ortionately upward to his ten-year mandatory minimum produced his thirty-yea r sentence. Judge B roderick also addressed his remarks to the high cost to the public o f unnecessary lengthy prison sentences.-24- Man datory minimum sentences and related distortions of th e Sentencing Guidelines have institutional ized long-term incarceration as the pref erred method of dealing with crime in this country, particularly dru g crime. More people are warehoused in federal and state prisons than a t any other time in our history . The United States has the highest per capita incarceration rate of any of the modern industrial countries.

. . . . In turning to prisons as a primary answer to our crime problems, we have emba rked upon a prison expansion that will cost hundreds of millio n dollars to build and billions of dollars annually to operate. The end is not in sight unless we reassess our options for managing offenders b y evaluating less costly alternatives with two goals in mind: cost to th e taxpayers and safety in the community for those taxpayers. Id. at 21-23.
Many judges have written on the injustice and unfairness of the prison sentence structure for federal crimes particularly drug related crimes. It is time for the public and Congress to pay heed to these voices. In the end, it is the public that pays the cost of a grossly unsound system.

IV. Conclusion
I would vacate the sentence in this case for plain error and call upon the district judge to take another look at the sentence.-25-

A true copy.

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

APPENDIX A Compiled from the Presentence Report and the Appendix

* Andrew Jones 360 months Street-Level Drug Seller * Eluterio Reyes 276 months Primary Drug Supplier Did NOT Cooperate With the Government Did NOT Testify at Jones’ Trial * Lamond Sykes 276 months Mastermind of the conspiracy Did NOT Cooperate With the Government Did NOT Testify at Jones’ Trial * Roberta Farr 24 months Downward Departure for Substantial Assistance

* Derek Conway 120 months Accountable for 1-3 kg of HeroinTh e record in this case does not contain the criminal histories of all the co

12 conspirators. Consequently, the mandatory minimums stated in this table do not reflect an y prior drug felony convictions by the defendants. If a defendant had a prior dru g felon y, the defendant would have faced a 240-month mandatory minimum sentenc e rather than 120-month mandatory minimum. -26- Faced a 120-Month Mandatory Minimum 12 * Stephanie Sykes 18 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure for Substantial Assistance * Felton Jerome Sykes 84 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure for Substantial Assistance * Ken Braddock 210 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum * Cordia Thomas 60 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure for Substantial Assistance * Francis Weekly 188 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum * Sally Sluggett 72 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure Substantial Assistance-27-

* Adonis Smith 135 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum * Bruce Lee 84 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure Substantial Assistance * Wayne Fly 120 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum * Terry Martin 84 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure Substantial Assistance * Danny Craig 36 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure Pursuant to U.S.S.G. §5K2.0. * Beverly Leach 18 months Accountable for 1-3 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure (Aberrant behavior) * Cherylyn Jones 168 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure Substantial Assistance-28-

* Joanne Jones 36 months Accountable for 28 kg of Heroin Faced a 120-Month Mandatory Minimum Downward Departure (No Prior Criminal History & Substantial Family Obligations)

* Donna Romero 60 months Accountable for 256.8 grams of Heroin Faced a 60-Month Mandatory Minimum

* Antonio Graseda

(father of Romero’s children) 24 months Accountable for 256.8 grams of Heroin Faced a 60-Month Mandatory Minimum Downward Departure Substantial Assistance