UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5515

TYRONE LAMONT SMITH, a/k/a Blue,

a/k/a Tyrone Eady,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5516

JOSEPH EDWARDS MONROE, a/k/a

Slim,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

Henry C. Morgan, Jr., District Judge, sitting by designation.

(CR-94-41)

Argued: April 1, 1996

Decided: June 4, 1996

Before HALL and MOTZ, Circuit Judges, and BUTZNER, Senior

Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: David Brian Franzen, FEIL, PETTIT & WILLIAMS,

P.L.C., Charlottesville, Virginia, for Appellant Smith; Sa'ad El-Amin,

EL-AMIN & CRAWFORD, Richmond, Virginia, for Appellant Monroe. Stephen Urban Baer, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,

United States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants, Tyrone Lamont Smith and James Edwards Monroe,

appeal their convictions and sentences for conspiracy to possess with

intent to distribute or to distribute more than fifty grams of cocaine

base (crack), in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). Monroe also appeals his conviction and sentence for possession with intent

to distribute more than five grams of cocaine base, in violation of the

same statutes. Finding no reversible error, we affirm.

I.

Appellants' first argument is that there was a "fatal" variance

between the allegations in the indictment and the evidence at trial.

Specifically, they maintain that while the indictment alleged a single

conspiracy, the evidence at trial indicated that there were multiple

conspiracies. At trial, the government bore the burden of proving the

existence of the single conspiracy charged in the indictment. United

States v. Hines, 717 F.2d 1481, 1489 (4th Cir. 1983), cert. denied, 467

U.S. 1214 (1984). See also, United States v. Barsanti, 943 F.2d 428,

439 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992); United States

v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). The existence of a single

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conspiracy is a question of fact for the jury. United States v. Banks,

10 F.3d 1044, 1051 (4th Cir. 1993), cert. denied , 114 S. Ct. 1850

(1994); Leavis, 853 F.2d at 218 (citing United States v. Urbanik, 801

F.2d 692, 695 (4th Cir. 1986)).

Determination of whether the government has proven a single conspiracy is basically a "special version" of a sufficiency of evidence

evaluation. Banks, 10 F.3d at 1051. Thus, in reviewing a conviction,

we merely determine

whether any rational trier of fact could have found the

essential elements of the [conspiracy here charged in the

indictment] beyond a reasonable doubt, and do so by assessing the evidence in the light most favorable to the Government, assuming its credibility, drawing all favorable

inferences from it, and taking into account all the evidence,

however adduced.

Banks, 10 F.3d at 1051 (internal citations and quotations omitted)

(alteration in original).

In determining whether there is evidence of a single conspiracy, as

opposed to multiple conspiracies,

the focal point of the analysis is whether the alleged coconspirators were united in a common unlawful goal or purpose. Of principal concern is whether the conduct of the

alleged co-conspirators, however diverse and far ranging,

exhibits an interdependence. In other words, of principal

concern is whether the activities of alleged co-conspirators

in one aspect of the charged scheme were necessary or

advantageous to the success of the activities of coconspirators in another aspect of the charged scheme, or the

success of the venture as a whole.

United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990), cert.

denied, 502 U.S. 952 (1991) (citations omitted). See also United

States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991), ("A single conspiracy exists where there is one overall agreement,. . . or one general

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business venture. Whether there is a single conspiracy depends upon

overlap of the main actors, methods and goals"), cert. denied, 503

U.S. 936 (1992)(citations and internal quotations omitted). With these

principles in mind, we turn to the evidence in this case.

A.

Sometime prior to the summer of 1993 (exactly when is unclear

from the record), Barry Lampkins brought appellant Smith to Charlottesville, Virginia to sell drugs. Lampkins and Smith knew each

other from the Bronx, having lived in the same apartment building on

Colgate Avenue while growing up. The two worked together, obtaining drugs (primarily crack cocaine) from New York and distributing

the drugs in Charlottesville. In addition to selling drugs on the street,

specifically the "drug strip" on Page Street, Smith and Lampkins

would trade crack to addicts in exchange for the use of their homes

for selling crack. One of these addicts was John Turner, who lived in

a boarding house on West Street. Another was Gloria Newman, who

lived at 772 Ridge Street. Smith and Lampkins also sold crack

through the use of "runners," drug users who would sell to fellow

users in exchange for "samples" of the product. Milton Dickerson was

one of their runners.

In the summer of 1993, Lampkins recruited Tahir Branch to come

to Charlottesville from New York to sell drugs. Branch, who also

lived in the Colgate Avenue building as a child, knew Smith as well

as Lampkins. Branch and his friend "Juice" took the bus to Charlottesville and met Lampkins at Gloria Newman's house on Ridge

Street. Branch testified that during the summer of 1993, he witnessed

Dickerson working as a "runner" for Smith and Lampkins.

Apparently, shortly thereafter, Smith and Lampkins had a "falling

out" over money. Lampkins' step-father had failed to deliver a shipment of drugs, and Lampkins was unable to repay Smith for the shipment. Both men continued to operate in Charlottesville for some

period of time after this quarrel.

Meanwhile, Lampkins directed Branch and Juice to sell marijuana

at first and crack when the marijuana ran out. Branch and Juice sold

on Page and Paoli Streets, while Lampkins sold out of the boarding

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house on West Street. At the end of a month, Lampkins paid Branch

$400 and Branch decided not to work for Lampkins any more because

he did not like the way Lampkins ran things and did not think that

Lampkins had paid him enough. There were also rumors that Lampkins was using drugs. Branch went back to New York after the month.

"Several months" later, while in New York, Smith asked Branch if

he wanted to go back to Charlottesville with him, and Branch agreed.

Smith and Branch took a bus from New York, transporting two "G

packs" ($2000 worth) of crack cocaine supplied by Smith. In Charlottesville, Smith and Branch stayed at the house of a drug user

named Robert, in the 700 block of Ridge Street, just up the block

from Gloria Newman's house. They gave Robert small amounts of

money as well as crack for letting them stay there. Smith and Branch

sold the crack across town on Page and Paoli Streets. Danny Williams, a user who lived on Paoli Street, worked as a"runner." Smith

told Branch he could also go and sell out of the house of Pamela Powell, another user, who lived on Hardy Drive. After they had sold all

the crack (in about five days), Smith paid Branch around $400. They

went back to New York to "re-up," that is, to use the $2000 they had

made to buy more cocaine to convert to crack and bring back to Charlottesville.

Subsequently, on several occasions, Branch traveled to Charlottesville alone, each time with 5 "G packs" of crack. Smith told him when

to go and provided him with crack and either bus or train fare. Branch

stayed at Robert's house, on Ridge Street, and kept the money from

the sale of the crack at Gloria Newman's house, also on Ridge Street.

He sold the crack at Page and Paoli Streets. After selling all the crack,

Branch returned to New York and gave Smith the money he had

made. Smith usually paid him between $400 and $600. On one trip,

Smith gave Branch a key and told him to stay with his friend, Chrissy

Willis, who lived in the Fifteenth Street Apartments. Branch originally went back to Ridge Street, where he felt more comfortable, but

then went to Chrissy Willis' house because Lampkins and his "crew"

were staying at Gloria Newman's house, and Branch did not think it

was safe to stay on Ridge Street too.

One of Branch's trips occurred while Smith was in jail in Atlantic

City. This trip was conducted in the "same exact way" as the previous

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trips. Branch visited Smith in jail, and Smith told him that when he

got out, he was going to "step up" the operation and they would both

make a lot of money. After Smith got out of jail, he brought appellant

Monroe into the operation. Smith, Monroe, and Branch all took a bus

to Charlottesville, transporting "two large cookies" of crack, worth

about $20,000. They stayed at Chrissy Willis' house (now on Paoli

Street, her old building having burned down). At Chrissy Willis'

house, Smith cut up the "cookies" and Monroe recooked the

"crumbs." Danny Williams and his girlfriend, Mary Etta Brown, had

moved to Preston Street, and the majority of the $20,000 worth of

crack was sold from their house. Smith, Branch, and Monroe worked

in "shifts," each selling one "G pack" at a time.

Smith, Branch, and Monroe made a second trip to Charlottesville

with $20,000 worth of crack, this time accompanied by a woman

named Envogue. They sold the drugs using the same procedure as

before. At the end of May, 1994, Branch and Monroe made a third

trip with $20,000 worth of crack, accompanied by a different woman.

Smith did not go on this trip because he had to go to a family reunion.

On May 31, 1994, police raided Danny Williams' apartment. Branch

and Monroe were running down the hall when police broke down the

door. They were found "hiding" in the bathroom, along with a cellular

phone and the remains of a "G pack" of crack. The police found $798

on Tahir Branch's person.

B.

Appellants argue that the "falling out" between Smith and Lampkins and the subsequent competition between them"clearly established" multiple conspiracies, rather than a single, ongoing

conspiracy. As this court has noted, however, the fact that drug dealers "may sometimes, or even always, compete for supplies or customers in serving [the] market does not on that account alone disprove the

existence of a single conspiracy to achieve the overall results of their

several efforts." Banks, 10 F.3d at 1054; United States v. Johnson, 54

F.3d 1150, 1154-55 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995).

The jury could have found from the evidence that despite their "falling out," Lampkins and Branch did not completely disassociate from

each other. Appellants point to Branch's testimony that, at one point,

when he was considering working for Smith, he was threatened by

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people working for Lampkins. While holding a shotgun, they told him

that if he was working for Smith, he was "going against the grain,"

because he had first come to Charlottesville with Lampkins, and that

he should not come down (to Charlottesville) anymore. This testimony clearly indicates competition, but not necessarily separate conspiracies. Branch further testified that he later talked to Lampkins

about this incident and Lampkins told him "They took it as you going

against the grain. That's how they took it. I can't stop them from

doing any actions." Still later, Lampkins apologized to Branch about

the incident and told him everything was "cool." Although this evidence is not overwhelming, based on it, the jury could have concluded that Lampkins and his "crew" and Smith and his "crew" were

but two competing branches of the same overall conspiracy.

Additionally, even if Lampkins did leave the organization entirely

to start his own organization, the evidence supported the conclusion

that Smith continued to run the operation that Lampkins and Smith

had once run together. After the "falling out" with Lampkins, Smith

continued transporting crack into Charlottesville and selling it at Page

and Paoli Streets, as he had while working with Lampkins. He continued using "runners" to sell the crack, and continued selling out of the

houses of drug users, compensating them by giving them crack. He

used Tahir Branch to transport and sell the crack, and until he

"stepped up" the operation, paid Branch approximately what Lampkins had paid him. At first, Smith had Branch stay on Ridge Street

(although not at Gloria Newman's house), and then go across town

to sell at Page and Paoli. He also had Branch store his money at Gloria Newman's house. Initially, Branch took the bus to Charlottesville,

as he had when he was brought in by Lampkins. Each time Branch

ran out of crack to sell, he went back to New York to "re-up." Subsequently, certain changes were made, but the same overall operation

continued. Branch began staying at Chrissy Willis' house instead of

on Ridge Street, but continued selling on Page and Paoli Streets,

using Danny Williams as a runner. Then Smith brought Monroe into

the operation, and they began selling larger quantities of crack. They

sold most of the crack from Danny Williams' house on Preston Street

rather than on the street. They kept the money hidden at Chrissy Willis' house. Smith began paying Branch more for his efforts ($1000

instead of $400-$600). Based on this evidence, the jury could have

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concluded that Smith continued to run the original conspiracy following his falling out with Lampkins.

Appellants next point to the fact that "for a short period of time

Smith did not operate with anyone" as evidence of multiple conspiracies. Brief for Appellants at 18. The "gap" relied on by appellants

occurred between the summer of 1993, when Branch was brought in

by Lampkins, and the time "several months" later when Branch and

Smith travelled to Charlottesville together. In United States v. Leavis,

853 F.2d 215, 218 (4th Cir. 1988), we found that an eight month gap

between overt criminal acts did not demonstrate the existence of two

separate conspiracies. Noting that a "single overall agreement need

not be manifested by continuous activity," Id. at 218 (quoting United

States v. Bloch, 696 F.2d 1213, 1215 (9th Cir. 1982)), we stated

"[o]ur focus must not be on the timing of the conspiracy's operations,

but on whether it functioned as an ongoing unit." Id. at 218-19. Based

on the similarity between Smith's activities before and after the

alleged "gap" in activity, a reasonable jury could have easily found

that the conspiracy functioned as an ongoing unit. Moreover, the evidence clearly shows that inactivity by Smith did not necessarily mean

that the conspiracy was inactive. For example, the operation continued to run as usual while Smith was incarcerated for a period of time.

Additionally, Smith remained in New York (or elsewhere) during several of Branch's trips to Charlottesville, and did not accompany

Branch and Monroe on the trip which led to their arrest.

Thus, the evidence presented to the jury supported a finding of a

single, ongoing conspiracy. The jury was instructed that it could not

convict if it found that the single conspiracy charged in the indictment

had not been proved. "If the jury is properly instructed, the finding of

a single conspiracy must stand unless the evidence, taken in the light

most favorable to the government, would not allow a reasonable jury

to so find." United States v. Urbanik, 801 F.2d 692, 695 (4th Cir.

1986). The evidence in this case certainly meets that standard.

II.

The second issue raised by appellants applies only to Smith. He

contends that the trial court erred in ruling that the government had

provided him with timely notice of its intent to enhance his sentence

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based on his prior convictions. Under 21 U.S.C.§ 851, if the government intends to seek a sentence enhancement based on a defendant's

prior convictions, "before trial," it must file an information with the

court, stating the convictions to be relied upon, and must serve a copy

of such information upon the defendant or his/her counsel.1

On February 16, 1995, five days before the trial began, AUSA Stephen Baer filed the required notices with the district court in both

Smith and Monroe's cases. Each notice contained a certification that

it was mailed to the defendant's counsel on the same date (2/16/95).

On May 17, 1995, Smith's attorney, David B. Franzen filed a

response to the § 851 notice, stating that he did not receive the notice

until after the trial had concluded. This response did not indicate the

date on which the notice was received. At Smith's sentencing hearing

on June 12, 1995, Franzen stated that, while he could not remember

the specific date, he knew that he had mailed a copy of the notice to

Smith on March 1, and remembered mailing it either on the day he

received it or the next day. Neither Franzen nor Monroe's counsel had

date-stamped their respective notices upon receipt, but the court's

copy of each notice was date-stamped February 16, 1995. Monroe's

counsel stated that she had been provided the § 851 notice with

respect to her client prior to February 16. Thus, she had no reason to

object to a late filing, nor did she have a reason to remember when

she received the notice mailed on February 16, as it was a duplicate.

(She did have two copies of the notice, indicating that she did, at

some point, receive the notice mailed on February 16).

The district court found as a fact that Smith's§ 851 notice was

timely filed. Based on the evidence before the court, we cannot say

that this finding was clearly erroneous.2 

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1 In Kelly v. United States , 29 F.3d 1107 (7th cir. 1994), the Seventh

Circuit "join[ed] the five other circuits to have examined [the] question

and conclude[d] that `before trial' means before the commencement of

jury selection." Id. at 1110. The Fourth Circuit has not specifically

addressed this question. We need not do so here because in this case

there is a factual dispute as to when Smith received his notice, not a legal

dispute as to the meaning of "before trial."

2 An additional factor supporting the district court's finding is that Federal Rule of Criminal Procedure 49(b) provides that service upon a

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III.

Appellants next contend that the court improperly sentenced them

by relying on presentence reports that constituted"double hearsay."

When Smith's counsel objected that certain information contained in

his presentence report contained inadmissible hearsay and so was

unreliable, the U.S. Probation Officer responded in an addendum to

the report, explaining that the information had been summarized from

presentence reports prepared for the New Jersey and New York state

courts.

In response to Monroe's hearsay objections to information in his

presentence report, the Probation Officer who had prepared that report

responded that he and employees of the U.S. Attorney's Office verified the information. At Monroe's sentencing hearing, the officer testified that, for two of the convictions referred to in the report, he had

received certified copies of the conviction judgments from the Superior Court of New Jersey, Atlantic County. He also testified that he

had received additional information about those convictions from the

probation office in New Jersey. As to the third conviction and narrative about which Monroe complains, the probation officer testified

that he had not received a certified copy of the judgment of conviction

(as he had requested), but he had received "a collateral of information" from the probation officer in the Southern District of New York.

The Federal Rules of Evidence (other than those rules regarding

privileges) do not apply to sentencing proceedings. Fed. R. Evid.

1101(d)(3). This court and several of our sister circuits have held that

a district court may consider uncorroborated hearsay evidence in

determining sentence, as long as defendant is given an opportunity to

refute the evidence. United States v. Terry, 916 F.2d 157, 161 (4th

Cir. 1990). See also United States v. McDonald , 964 F.2d 390, 394

(5th Cir. 1992); United States v. Silverman, 976 F.2d 1502, 1512 (6th

_________________________________________________________________

party's attorney "shall be made in the manner provided in civil actions."

Federal Rule of Civil Procedure 5(b) states that"[s]ervice by mail is

complete upon mailing." Therefore, having no reason to doubt the veracity of the certification, the notice to Smith was mailed, and thus served,

on February 16, 1995, five days before trial.

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Cir. 1992), cert. denied, 507 U.S. 990 (1993); United States v. Evans,

891 F.2d 686, 688 (8th Cir. 1989), cert. denied , 495 U.S. 931 (1990);

United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984). In

order to refute the evidence, the defendant must establish that it is

inaccurate or unreliable, not merely that it is hearsay and thus "inadmissible." Terry, 916 F.2d at 162 ("A mere objection to the finding

in the presentence report is not sufficient. The defendant has an affirmative duty to make a showing that the information in the presentence report is unreliable, and articulate the reasons why the facts

contained therein are untrue or inaccurate.") See also McDonald, 964

F.2d at 394; Silverman, 976 F.2d at 1512; Evans, 891 F.2d at 688.

Neither Smith nor Monroe has asserted that the information contained

in their presentence reports is untrue. Although both argue that the

information is unreliable, they have offered no support for this conclusion other than the fact that the information is hearsay. Thus, neither appellant has carried his burden. See Terry , 916 F.2d at 162

("appellant merely claimed the information . . . was unreliable. He

never claimed it was inaccurate or untrue.") The district court permissibly relied on the information contained in the presentence reports.

IV.

Smith and Monroe claim that the district court erred in denying

their motion for a mistrial after the court was advised that at least one

juror observed them in handcuffs as they were brought into court. In

United States v. Ford, 19 F.3d 1271 (8th Cir. 1993), cert. denied, 115

S. Ct. 741 (1995), the Eighth Circuit recently considered a similar situation. The court held that the defendant "ha[d] the burden of demonstrating prejudice from the juror's brief, inadvertent exposure to him

in custody." Id. at 1272. As in Ford , here the jury's exposure to the

defendants in handcuffs was both brief and inadvertent. Outside of

mere speculation, Smith and Monroe have not demonstrated that any

prejudice resulted from the incident, and thus the district court did not

abuse its discretion in denying the mistrial.

V.

Smith and Monroe next argue that the trial court erred in granting

an instruction that did not require the government to prove that the

amount of drugs involved was the amount charged in the indictment.

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In a related argument, they contend that the government did not, in

fact, prove that the quantity of drugs involved was the quantity

alleged in the indictment. The indictment charged that the appellants

conspired "[t]o possess with the intent to distribute or distribute more

than 50 grams of cocaine base . . . in violation of Title 21, United

States Code, Sections 841(a)(1) and 841(b)(1)(A)." Count 4, applicable only to Monroe, charged him with possession with intent to distribute more than five grams of cocaine base. In response to a

government request, and over appellants' objection, the court gave the

jury the following instruction:

The evidence received in this case need not prove the

actual amount of the controlled substance that was part of

the alleged transaction or the exact amount of the controlled

substance alleged in the indictment as possessed with intent

to distribute by the defendants.

The government must prove beyond a reasonable doubt

that a measurable amount of the controlled substance was,

in fact, knowingly and intentionally possessed with the

intent to distribute by the defendants.

Numerous courts of appeals, including this one, have held that sentence enhancement facts such as drug quantity are not elements of the

offense that must be proven beyond a reasonable doubt. See United

States v. Parker, 30 F.3d 542 (4th Cir.), cert. denied, 115 S. Ct. 605

(1994); United States v. Lam Kwong-Wah, 966 F.2d 682 (D.C. Cir.),

cert. denied, 506 U.S. 901 (1992); United States v. Johnson, 944 F.2d

396 (8th Cir.), cert. denied, 502 U.S. 1008 (1991); United States v.

Rigsby, 943 F.2d 631 (6th Cir. 1991), cert. denied, 503 U.S. 908

(1992); United States v. Engleman, 916 F.2d 182 (4th Cir. 1990);

United States v. Peters, 912 F.2d 208 (8th Cir. 1990), cert. denied,

498 U.S. 1094 (1991); United States v. Powell , 886 F.2d 81 (4th Cir.

1989), cert. denied, 493 U.S. 1084 (1990). See also McMillan v.

Pennsylvania, 477 U.S. 79 (1986) (discussing state, rather than federal sentencing provisions). Appellants have failed to cite any authority to the contrary, but argue that in this case, the result should be

different because the indictment expressly charged specific quantities

of crack cocaine.

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Appellants' argument ignores the fact that in several of the abovecited cases, as in this case, the indictment expressly charged a specific

quantity of drugs. See Parker, 30 F.3d at 545 ("a grand jury . . .

indicted Parker for one count of distributing, or possessing with the

intent to distribute, more than five grams of crack"); Johnson, 944

F.2d at 405 (referring to "the allegation in the indictment that the

defendant possessed at least five grams of cocaine base"); Rigsby, 943

F.2d at 634 ("Count one charged defendant with manufacturing 1,000

or more marijuana plants"); Powell, 886 F.2d at 82 ("Powell was

charged with one count of possession with intent to distribute 50

grams or more of crack cocaine"). The remainder of the above-cited

cases are unclear as to precisely what was charged in the indictments.

See Lam Kwong-Wah, 966 F.2d at 683; Engleman , 916 F.2d at 183;

Peters, 912 F.2d at 209. Regardless of whether a drug quantity is specifically charged in the indictment, each of the above-cited cases

notes that the drug quantity is not a necessary element of the offense,

but is rather a fact relating to sentencing, that may be proved merely

by a preponderance of evidence and is determined by the court at sentencing. Parker, 30 F.3d at 554; Lam Kwong-Wah, 966 F.2d at 685-

86; Johnson, 944 F.2d at 405; Rigsby, 943 F.2d at 640,3 Engleman,

916 F.2d at 184; Peters, 912 F.2d at 212; Powell, 886 F.2d at 85.

Because the weight of authority establishes that drug quantity is not

an element of the offense that must be proved beyond a reasonable

doubt and determined by the jury, the jury instruction given in this

case was proper. Appellants base their related argument (as to what

the government actually proved) on the assumption that the quantity

of drugs was a necessary element of the offense to be proven to the

jury. Accordingly, this argument must also fail.

VI.

The next issue raised by the appellants is the district court's denial

of their motions for a new trial following the disclosure that a government witness, Robert Tinsley, was a police informant making under-

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3 The Court in Rigsby followed the "great weight of authority holding

that quantity is not an element of a § 841 offense," 943 F.2d at 640, but

did so with reluctance, and with an extensive discussion of the reasons

for its disagreement with the rule. Id. at 340-43.

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cover buys which were recorded by video and audio tapes. Appellants

assert that one of the video tapes showed their co-defendant, Dickerson, engaged in a drug transaction with Tinsley. They maintain that

they both wanted to show the video tapes to the jury, while Dickerson's counsel "vehemently objected," thus creating an irreconcilable

conflict between the co-defendants. The government responds that no

conflict existed, as the tapes do not depict Dickerson engaged in a

drug transaction, rather, he can be seen in the background on one of

the tapes. We need not reach this issue, however, as the appellants

waived their right to challenge the denial of their motion for a new

trial when they viewed the video tapes prior to the close of their cases

but did not introduce them in evidence or explain on the record why

they could not introduce them.

VII.

Finally, Monroe and Smith argue that they should have been

granted a downward departure pursuant to § 5K2.0 of the Sentencing

Guidelines. Section 5K2.0 provides for a departure when there exists

"an aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Smith and Monroe note that their

sentencing ranges were "predicated upon there being a difference in

the guidelines applicable to cocaine base, or `crack' cocaine and the

guidelines applicable for powder cocaine." Brief for Appellants at 48.

They argue that a downward departure was necessary to reflect the

Sentencing Commission's February 28, 1995 recommendation to

Congress to treat crack cocaine and powder cocaine equally. Appellants concede that they did not raise this issue in the district court, but

assert that the court's failure to depart downward rises to the level of

plain error. We do not agree, particularly in light of Congress' subsequent rejection of the Commission's recommendation. See United

States v. Sanchez, 81 F.3d 9, 11 (1st Cir. 1996) (rejecting the identical

argument, both because Congress rejected the recommendation, and

because "[a] Sentencing Commission's recommendation to the Congress is not the kind of `circumstance' that[§ 5K2.0] covers").

The appellants' convictions and sentences are therefore

AFFIRMED.

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