In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1513

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VERNARD L. GREEN, JR.,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:98 CR 74--Rudy Lozano, Judge. 

Argued December 4, 2000--Decided July 25, 2001

 Before Flaum, Chief Judge, and Diane P.

Wood and Williams, Circuit Judges.

 Williams, Circuit Judge. A jury

convicted Vernard L. Green, Jr., of

distributing crack cocaine, conspiracy to

distribute crack cocaine, and using a

communication device in connection with

the conspiracy and distribution.

Greenappeals, raising multiple alleged

evidentiary and sentencing errors by the

district court and asserting that the

evidence was insufficient to support his

conviction. We affirm.

I

 Vernard Green’s problems began when the

Gary Response Investigative Team (GRIT),

a task force of federal and state law

enforcement officers, targeted for

investigation one of Green’s customers,

Armondo Guzman, whom they suspected of

trafficking in drugs in Gary, Indiana.

GRIT enlisted the help of Danny Cox, an

informant who had cooperated in other

GRIT investigations after GRIT caught him

selling cocaine to undercover agents.

 GRIT asked Cox to attempt to make a

controlled purchase from Guzman, and on

April 10, 1998, Cox went to Guzman’s home

and asked for an ounce of crack cocaine.

Guzman said he would have to contact his

source, and placed a telephone call. A
short time later, an individual arrived

and gave the cocaine to Guzman, who then

sold it to Cox. The GRIT officers

conducting surveillance were too far away

to see who delivered the cocaine to

Guzman.

 Several days later, Lieutenant Huttle

and two other GRIT officers arrested and

questioned Guzman. According to Huttle’s

written report of that interview, Guzman

identified a man known as "Butter" as his

source of cocaine. Guzman told the agents

that he purchased cocaine from "Butter"

about 100 times, usually in quantities of

either an eighth of an ounce or an ounce.

 Vernard Green was then questioned by

three GRIT officers, including Indiana

State Trooper John Jefferson, about the

events on April 10. According to

Jefferson’s report of that interview,

Green admitted that in response to

Guzman’s page, he delivered crack cocaine

to Guzman’s house. Green identified his

source as John Vinson, and agreed to try

to make a controlled purchase of crack

from him. Although he placed a call to

Vinson and identified himself as

"Butter," he refused to give any further

cooperation. He was arrested and indicted

on charges of distributing crack cocaine,

conspiracy to distribute crack cocaine,

and using a communication device in

connection with the conspiracy and

distribution.

 At trial, Cox and Guzman identified

Green as the one who made the April 10

delivery to Guzman. Another witness,

Clifton Rock, testified that Green was

his source for cocaine, and testified

that he also saw Green sell drugs to

Herman Hicks, Ann Kelly, and Vincent

Hill. Three GRIT agents testified that

Green had admitted to them that in April

1998 he delivered an ounce of cocaine to

Guzman’s house in response to Guzman’s

page, and that Vinson was Green’s source.

When Green took the stand, he stated that

he went to Guzman’s house in April in

response to Guzman’s page, but he denied

delivering crack cocaine, making

incriminating statements to the GRIT

officers, and any involvement with

Vinson. A jury convicted Green on all

three charges.

 At sentencing, the trial judge found

Green responsible for more than 500 grams
of crack cocaine, based in large part on

Guzman’s statement about his history of

purchases from Green. The court increased

Green’s offense level based on its

determination that Green had committed

perjury during the trial, and denied

Green’s request for a downward departure

based on his employment and family

circumstances. The court sentenced Green

to concurrent sentences of 235 months’

imprisonment on the first two counts

(conspiracy and distribution) and 48

months on the third (using a

communication device to facilitate the

conspiracy and distribution).

II

A

 Green argues that his conviction should

be reversed for four reasons. First,

Green contends that the district court

erred in admitting, as past recollection

recorded, law enforcement officers’

written summaries of their interviews

with Green and Guzman. He challenges the

admission of the reports and the

statements attributable to Green and

Guzman within those reports. Second, he

claims that the government improperly

bolstered Cox’s credibility by eliciting

testimony about Cox’s cooperation in

other prosecutions. Third, he argues that

testimony concerning his prior drug

transactions was inadmissible under

Federal Rule of Evidence 404(b). Finally,

Green claims that the evidence was

insufficient to support his convictions.

We examine each of these contentions in

turn.

1. The officers’ written summaries.

 The district court allowed Trooper

Jefferson to read to the jury the written

summary he prepared of his interview of

Green, and allowed Lieutenant Huttle to

read to the jury his summary of the

interview of Guzman. Both written

summaries are the officers’ out-of-court

declarations, offered to prove the matter

asserted in them, so are hearsay. See

Fed. R. Evid. 801(c). The district court

admitted those summaries under Federal

Rule of Evidence 803(5), the hearsay

exception for past recollection recorded,

which allows memoranda or records meeting

the criteria of the Rule to be read to
the jury, but not received as an exhibit.

Green made a timely objection to the

admission of the reports, so our review

is for abuse of discretion. United States

v. Lewis, 954 F.2d 1386, 1390 (7th Cir.

1992)./1

 Green first contends that Jefferson’s

interview summary does not meet the

criteria of Rule 803(5) because Jefferson

did not prepare the summary until 11 days

after his interview with Green. Rule

803(5) requires that the memorandum be

made by the witness "when the matter was

fresh in the witness’ memory," but we

have declined to adopt any bright-line

rule to measure whether a particular

delay is too long. Lewis, 954 F.2d at

1394. Instead, we have held that the

trial court may consider the lapse of

time along with other circumstances that

may be relevant in determining the

likelihood that the witness had an

accurate memory of the event at the time

the record was prepared. Id. (citing

United States v. Senak, 527 F.2d 129,

141-42 (7th Cir. 1975)). Green has not

identified any relevant circumstances

bearing on the likelihood that

Jefferson’s memory was inaccurate, other

than the delay between the interview and

the written report, and we do not believe

that an 11-day delay--in and of itself--

makes the interview so remote that

Jefferson could not have accurately

recalled it. See Senak, 527 F.2d at 141

(three-year delay between the events and

the creation of the memorandum not

excessive under the circumstances);

United States v. Smith, 197 F.3d 225, 231

(6th Cir. 1999) (15-month delay); United

States v. Patterson, 678 F.2d 774, 779

(9th Cir. 1982) (10-month delay). Hence,

the district court did not err in

determining that the report prepared 11

days after the interview qualified as

Jefferson’s past recollection recorded.

 Green next contends that the assertions

attributed to Guzman and Green within the

reports should be excluded because he and

Guzman did not adopt the reports. We have

held that when a witness’s statement is

recorded by another, both the witness and

the one transcribing the statement must

testify as to the accuracy of the report

to establish that the statement is the

witness’s past recollection recorded

under Rule 803(5). United States v.

Schoenborn, 4 F.3d 1424, 1427-28 (7th
Cir. 1993) (citing United States v.

Williams, 951 F.2d 853, 858 (7th Cir.

1992)). So, if Green and Guzman had

testified and affirmed the report’s

accuracy, the assertions attributed to

them would have been admissible under

Rule 803(5). See Schoenborn, 4 F.3d at

1428.

 However, adoption of the assertions by

Green and Guzman is not required if there

is another basis for admitting them. This

is because statements such as these that

comprise multiple levels of potential

hearsay are admissible if each part is

admissible. See Fed. R. Evid. 805; United

States v. Severson, 49 F.3d 268, 271-72

(7th Cir. 1995). The government contends

that the assertions attributed to Green

and Guzman (the "internal" hearsay) fall

within the categories of out-of-court

statements defined as non-hearsay by Rule

801(d), even though offered to prove the

truth of the matter asserted. We agree

that the assertions attributable to Green

in Jefferson’s report are classic

admissions and not hearsay under Rule

801(d)(2)(A). The court did not err in

allowing Jefferson’s report to be read to

the jury.

 As to the assertions attributed to

Guzman in Huttle’s report, the government

offered those as Guzman’s prior

consistent statements. A statement is not

hearsay, and admissible as a prior

consistent statement under Rule 801(d)

(1)(B), if it meets the following four

requirements:

1) the declarant testifies at trial

and is subject to cross-examination;

2) the prior statement is consistent

with the declarant’s trial

testimony; 3) the statement is

offered to rebut an express or

implied charge of recent fabrication

or improper motive; and, 4) the

statement was made before

the declarant had a motive to

fabricate.

United States v. Stoecker, 215 F.3d 788,

791 (7th Cir. 2000) (quoting United

States v. Fulford, 980 F.2d 1110, 1114

(7th Cir. 1992))./2

 Putting aside the first requirement for

a moment, we conclude that the district

court was within its discretion in

determining that Guzman’s statements to
Huttle were admissible under Rule

801(d)(1). The statements were consistent

with Guzman’s trial testimony, and were

offered to rebut Green’s counsel’s

attempt in cross-examination to show

that, because of his plea agreement,

Guzman had a motive to fabricate. See

Stoecker, 215 F.3d at 790. Green argues

on appeal that the fourth requirement of

Rule 801(d) (1)(B) was not met because

Guzman’s statement to Huttle was made

after he was arrested, and therefore

Guzman had a motive to fabricate at the

time the prior statement was made.

Because this argument was not raised

until his reply brief, it is waived.

Wright v. United States, 139 F.3d 551,

553 (7th Cir. 1998); United States v.

Feinberg, 89 F.3d 333, 340-41 (7th Cir.

1996)./3

 Returning to the requirement that the

declarant be available for crossexamination, Green contends that it was

error to admit Guzman’s prior statement

after the conclusion of Green’s crossexamination of Guzman and during the tes

timony of Lieutenant Huttle. In United

States v. West, 670 F.2d 675, 687 (7th

Cir. 1982), we interpreted Rule 801(d)

(1)(B)’s requirement of cross-examination

to mean that the out-of-court statement

must be elicited through the declarant,

and not through a third party to whom the

declaration was made. The government asks

us to reconsider West, observing that no

other circuit requires that prior consis

tent statements be admitted through the

declarant.

 At the time West was decided, we

acknowledged that our interpretation of

Rule 801(d)(1)(B) differed from the

interpretation of six other circuits that

permit a third party to testify about

another witness’s prior consistent

statement, so long as the witness who

made the out-of-court statement is

available for cross-examination at some

time during the trial. Id. at 686 (citing

United States v. Provenzano, 620 F.2d

985, 1000-02 (3d Cir. 1980); United

States v. Dominguez, 604 F.2d 304, 311

(4th Cir. 1979); United States v. Allen,

579 F.2d 531, 532 (9th Cir. 1978); United

States v. Lanier, 578 F.2d 1246, 1255-56

(8th Cir. 1978); United States v.

Zuniga-Lara, 570 F.2d 1286, 1287 (5th

Cir. 1978); United States v. McGrath, 558

F.2d 1102, 1107 (2d Cir. 1977)). In the
nineteen years since West was decided,

our interpretation has not garnered

support. None of the remaining circuits

has followed West, leaving us a "minority

of one." United States v. Montague, 958

F.2d 1094, 1099 (D.C. Cir. 1992); see

United States v. Hebeka, 25 F.3d 287, 291

(6th Cir. 1994); United States v. Piva,

870 F.2d 753, 758 (1st Cir. 1989); United

States v. Griggs, 735 F.2d 1318, 1325-26

(11th Cir. 1984); United States v.

Sutton, 732 F.2d 1483, 1493-94 (10th Cir.

1984); see also 30B Michael H. Graham,

Federal Practice and Procedure, sec.7012 at

135 (2000) ("Where admissible, the prior

consistent statement may be testified to

by either the witness himself or any

other person with personal knowledge of

the statement.").

 The justification we provided in West

was that Rule 801(d)(1)(B) requires not

only that the declarant generally be

available for cross-examination, but that

he be available for cross-examination

about the statement. West, 670 F.2d at

686 (citing United States v. Guevara, 598

F.2d 1094, 1100 (7th Cir. 1979); United

States v. Fearns, 501 F.2d 486, 489 (7th

Cir. 1974)). But, as other courts have

observed, this justification does not

compel the limitation we imposed in West.

See Montague, 958 F.2d at 1099; Hebeka,

25 F.3d at 292. Cross-examination about

the statement can be accomplished whether

or not the statement is introduced by the

declarant; if the statement is elicited

from a third party, the declarant may be

recalled for further examination. Id.

West thus goes beyond its justification

and imposes a precondition for

admissibility relating to the order and

manner that evidence is presented, a

precondition not contained in Rule

801(d)(1)(B). And although this

limitation avoids having to recall the

declarant and therefore may serve some

benefit in terms of trial management, we

think this consideration is better left

to the discretion of the trial court. See

Fed. R. Evid. 611(a).

 That the requirement articulated in West

is not contained in nor apparent from the

Rule itself may explain why West has not

been mentioned in later decisions of this

court approving the admission of prior

consistent statements that were elicited

not from the declarant but from the

person to whom the statement was made.
See United States v. Ruiz, 249 F.3d 643,

647-48 (7th Cir. 2001); Fulford, 980 F.2d

at 1113-14; United States v. Monzon, 869

F.2d 338, 342-43 (7th Cir. 1989); United

States v. Harris, 761 F.2d 394, 399 (7th

Cir. 1985); cf. Christmas v. Sanders, 759

F.2d 1284, 1288-89 (7th Cir. 1985)

(affirming, on other grounds and without

reference to West, district court’s

rejection of prior consistent statement

offered through a third party). These

later decisions suggest to us that the

limitation articulated in West is not

well known and, lacking good

justification, serves unnecessarily to

trap the unwary. 

 We therefore believe that it is time to

join our sister circuits and hold that

Rule 801(d)(1)(B) does not bar the

introduction of a prior consistent

statement through the testimony of

someone other than the declarant, so long

as the declarant is available for crossexamination about the statement at some

time during trial./4 There is no

indication that Green was prevented from

recalling Guzman for cross-examination

about the assertions attributed to Guzman

in Huttle’s report, and because those

assertions meet the other requirements

for admission under Rule 801(d)(1)(B),

the district court did not abuse its

discretion in allowing Huttle’s report to

be read to the jury.

2. Evidence regarding Cox’s prior

cooperation.

 Green also contends that the district

court erred in permitting testimony about

Cox’s cooperation with the government’s

investigation and prosecution of two

individuals unrelated to Green’s case. He

claims that this testimony was improper

bolstering of Cox’s credibility and

barred by Federal Rule of Evidence

608(b).

 We begin with a few general comments.

First, "bolstering" is the practice of

building up a witness’s credibility

before impeachment has been attempted.

United States v. Lindemann, 85 F.3d 1232,

1242 (7th Cir. 1996); United States v.

LeFevour, 798 F.2d 977, 983 (7th Cir.

1986). All of the testimony elicited by

the government regarding Cox’s

cooperation in other investigations was

in response to Green’s earlier questions
of Agent Bookwalter, which were intended

to suggest that Cox was "setting up" a

number of people, including Green, in

order to avoid prosecution for his own

crimes. As a consequence, the government

did not engage in improper bolstering

when it introduced further evidence of

Cox’s cooperation to rebut Green’s

allegation of bias. See Lindemann, 85

F.3d at 1243; United States v. Penny, 60

F.3d 1257, 1264 (7th Cir. 1995); United

States v. McKinney, 954 F.2d 471, 478

(7th Cir. 1992); see also United States

v. Lochmondy, 890 F.2d 817, 821-22 (6th

Cir. 1989).

 Second, Federal Rule of Evidence 608(b)

bars the use of extrinsic evidence of

"[s]pecific instances of the conduct of a

witness, for the purpose of attacking or

supporting the witness’ credibility."

Fed. R. Evid. 608(b). However, we have

held that if evidence of the witness’s

cooperation in other investigations is

directed at rebutting allegations of the

witness’s bias, and not at his character

for truthfulness in general, the

limitations of Rule 608(b) do not apply.

Lindemann, 85 F.3d at 1243; see also

United States v. Smith, 232 F.3d 236,

242-43 (D.C. Cir. 2000); United States v.

Fusco, 748 F.2d 996, 998 (5th Cir. 1984).

Instead, the evidence is governed by the

relevance standard of Rule 402.

Lindemann, 85 F.3d at 1243; United States

v. Curry, 187 F.3d 762, 767 (7th Cir.

1999). The question, then, is whether the

testimony of Cox’s prior cooperation was

relevant to the issue of Cox’s bias, and

if so, whether its probative value was

substantially outweighed by the danger of

unfair prejudice. See Lindemann, 85 F.3d

at 1243; Curry, 187 F.3d at 767.

 Turning to the specific testimony in

this case, we note that Green made no

objection at trial to the testimony that

he now complains was improper (with one

exception, which we will address in a

moment), and our review is therefore for

plain error. Penny, 60 F.3d at 1264.

Agent Bookwalter (a member of the GRIT

team who had worked with Cox) testified

that the information provided by Cox in

other investigations was "credible and

reliable and consistent with" what the

GRIT team observed. This testimony tends

to make Green’s theory of bias less

probable and was therefore relevant. See

Smith, 232 F.3d at 241 (stating that the
fact that the witness "has informed and

testified truthfully in the past under

his plea agreement certainly bears on his

response to similar pressures and

temptations in the present"). And

although Green does not argue that the

evidence was unduly prejudicial, we note

that the jury had already heard almost

identical testimony elicited during

Green’s cross-examination of Bookwalter.

Given this context, we would be hard

pressed to conclude that the testimony

elicited by the government, even if

unduly prejudicial if standing alone, had

any affect on the outcome. See United

States v. Napue, 834 F.2d 1311, 1324 (7th

Cir. 1987); United States v. Mazzone, 782

F.2d 757, 763 (7th Cir. 1986). Therefore

reversal is not warranted under plain

error review. See Penny, 60 F.3d at

1265./5

 Green did make a timely objection to

Bookwalter’s statement that the other

trial in which Cox testified resulted in

conviction, and so we review the district

court’s decision to admit that statement

for abuse of discretion. Curry, 187 F.3d

at 767. Green contends that the jury may

not hear that the witness’s cooperation

resulted in convictions, relying on our

decision in United States v. Napue, 834

F.2d 1311, 1324 (7th Cir. 1987), and the

government concedes this point. However,

in Napue, we did not hold that such

testimony is never admissible. Instead,

we considered whether a mistrial was

warranted when a prosecutor made

reference in closing argument to

convictions that resulted from a

witness’s testimony in another case,

despite the trial judge’s earlier ruling

barring the evidence on relevancy

grounds. Id. The question there was

whether the prosecutor’s violation of the

earlier ruling required reversal, and not

whether the earlier ruling was correct or

incorrect./6

 But given the government’s concession,

we decline to explore the question of

whether the district court abused its

discretion in this case by admitting

evidence of the convictions that resulted

from Cox’s testimony. Instead, we agree

with the government that the error, if

any, was harmless because of the

overwhelming evidence of Green’s guilt.

See Fed. R. Crim. P. 52(a). The most

significant evidence provided by Cox was
his identification of Green as the person

who arrived at Guzman’s home immediately

before Guzman delivered the cocaine to

Cox on April 10. But this identification

was confirmed not only by Guzman’s

testimony, but by three GRIT agents who

testified that Green confessed to that

incident--testimony that Green does not

challenge on appeal. Given this

testimony, and other corroborating

evidence, we find that even if it was

error to admit testimony that Cox’s

cooperation in other cases resulted in

convictions, the error was harmless. See

Curry, 187 F.3d at 767; cf. Smith, 232

F.2d at 243.

3. Evidence of Green’s prior drug

transactions.

 Green next contends that the district

court improperly admitted Clifton Rock’s

testimony that he purchased from Green an

average of about 1 ounces of cocaine per

week, and that he saw Green sell cocaine

to other individuals, during a period

ending more than a year before the

conspiracy charged in this case. Evidence

of other wrongs is admissible under

Federal Rule of Evidence 404(b) if the

evidence: (i) is directed toward

establishing a matter in issue other than

the defendant’s propensity to commit the

crime charged; (ii) shows that the other

act is similar enough and close enough in

time to be relevant; (iii) is sufficient

to support a finding that the defendant

committed the other act; and (iv) has

probative value not outweighed by the

danger of unfair prejudice. United States

v. Williams, 238 F.3d 871, 874 (7th Cir.

2001); United States v. Moore, 115 F.3d

1348, 1354 (7th Cir. 1997). Green

contends that Rock’s testimony fails all

four prongs of this test.

 As to the first prong of the test, we

have held on numerous occasions that when

a defendant is charged with a specific

intent crime (here, conspiracy to

distribute cocaine), evidence of the

defendant’s prior drug transactions may

be relevant to show knowledge and intent-

-purposes distinct from simply showing

the defendant’s propensity for drug

dealing. United States v. Jones, 248 F.3d

671, 675-76 (7th Cir. 2001); Williams,

238 F.3d at 875 n.1 and cases cited

therein; United States v. Monzon, 869

F.2d 338, 344 (7th Cir. 1989). Green
argues that his theory was not that he

lacked intent, but rather that he was not

the person who delivered the drugs to

Guzman. This distinction is irrelevant

because the government must prove all

elements of the crime, and therefore

evidence probative of intent is relevant

whether or not the defendant makes intent

an issue. See Jones, 248 F.3d at 675;

United States v. Kellum, 42 F.3d 1087,

1093 (7th Cir. 1994); Monzon, 869 F.2d at

344.

 Whether the evidence meets the second

prong of the test, similarity and

proximity, is evaluated in relation to

the purpose for which the evidence is

offered. United States v. Ruiz, 178 F.3d

877, 880 (7th Cir. 1999); United States

v. Torres, 977 F.2d 321, 326 (7th Cir.

1992). Where, as here, the evidence

relates to prior drug sales of the same

or similar type of drug, transactions

ending 14 months before the charged crime

are not too remote to be relevant to the

defendant’s knowledge and intent. See

Ruiz, 178 F.3d at 880 (two years between

offenses); United States v. Kreiser, 15

F.3d 635, 640 (7th Cir. 1994) (seven

years).

 Rock’s testimony that he sold drugs to

Green and saw Green sell drugs to others

is sufficient to support a jury’s finding

that Green did in fact engage in that

conduct, and therefore the third prong of

the test is satisfied, notwithstanding

Green’s assertions about Rock’s

credibility. See United States v. Smith,

995 F.2d 662, 672 (7th Cir. 1993)

(holding that uncorroborated direct

testimony of an accomplice is sufficient

for purposes of Rule 404(b) unless it is

"incredible on its face or otherwise

insubstantial"). 

 Finally, as to the fourth prong, we find

no error in the district court’s

determination that the evidence was not

unfairly prejudicial when weighed against

its probative value, particularly in

light of the district court’s instruction

limiting the jury’s consideration of the

evidence to the narrow purpose for which

it was offered. See United States v. Den

berg, 212 F.3d 987, 994 (7th Cir. 2000);

United States v. Brooks, 125 F.3d 484,

500 (7th Cir. 1997) (stating that

"limiting instructions are sufficient to

cure any potential prejudice resulting
from the admission of 404(b) evidence").

Thus, we find no abuse of discretion in

the district court’s decision to admit

this evidence./7

4. Sufficiency of the evidence.

 Green’s final challenge to his

conviction is that the trial evidence was

insufficient to support his conviction,

specifically, that there was insufficient

evidence that it was Green who

participated in the transactions with

Guzman in April 1998. Challenges based on

the sufficiency of the evidence are

rarely successful. See United States v.

Sanchez, 251 F.3d 598, 601 (7th Cir.

2001); United States v. Thornton, 197

F.3d 241, 253 (7th Cir. 1999). Our review

is highly deferential to the jury and we

will reverse "only when the record

contains no evidence, regardless of how

it is weighed, from which the jury could

find guilt beyond a reasonable doubt."

Penny, 60 F.3d at 1262 (citing United

States v. Rosalez-Cortez, 19 F.3d 1210,

1215 (7th Cir. 1994)). Here, Green’s

admission of his participation to three

law enforcement officers, as well as

Cox’s and Guzman’s testimony, was more

than sufficient to support the jury’s

verdict.

B

 We turn now to Green’s three challenges

to his sentence, specifically, the

district court’s calculation of drug

quantity, its enhancement of the sentence

for obstruction of justice, and its

refusal to grant a downward departure for

family circumstances and employment. We

have examined each of these challenges

and find them to be without merit. First,

there was no clear error in the district

court’s calculation of drug quantity,

which was supported by sufficiently

reliable evidence, including Guzman’s

testimony and statements about his

history of purchases from Green. See

United States v. Durham, 211 F.3d 437,

444 (7th Cir. 2000); United States v.

Clay, 37 F.3d 338, 344 (7th Cir. 1994).

Second, the court was entitled to

disbelieve Green’s trial testimony, which

was contrary to admissions he made to law

enforcement officers and to the testimony

of other witnesses. Therefore, we find no

error in the court’s finding that Green

committed perjury, or its decision to
apply a sentencing enhancement for

obstruction of justice. See United States

v. Jones, 983 F.2d 1425, 1430-31 (7th

Cir. 1993). Third, the district court

declined to exercise its discretion in

favor of Green, but recognized that it

had discretion to depart downward based

on family relationships and employment

even though those factors are "not

ordinarily relevant." See U.S.S.G. sec.

5H1.6. Accordingly, that decision is

unreviewable on appeal. United States v.

Jaderany, 221 F.3d 989, 997 (7th Cir.

2000); United States v. Guy, 174 F.3d

859, 861 (7th Cir. 1999); United States

v. Prevatte, 66 F.3d 840, 843 (7th Cir.

1995).

III

 For the foregoing reasons, the judgment

of the district court is Affirmed.

FOOTNOTES

/1 The government contends that Green made no objection at trial to the admission of Huttle’s report

as past recollection recorded, and therefore that

our review is for plain error. We conclude,

however, that Green’s objections--while not a

model of clarity--were adequate to preserve the

issues that he is advancing on appeal regarding

whether the assertions attributable to Guzman in

Huttle’s report are admissible as a prior consistent statement.

/2 Federal Rule of Evidence 801(d)(1) defines prior

consistent statements as not hearsay if "[t]he

declarant testifies at the trial or hearing and

is subject to cross-examination concerning the

statement, and the statement is . . . (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge

against the declarant of recent fabrication or

improper influence or motive. . . ."

/3 In any event, at the time Guzman made the statement, Guzman had not yet entered into a cooperation agreement with the government, and a reasonable person could have concluded that the motive

to fabricate did not arise until the cooperation

agreement. Therefore, Green cannot show that the

court abused its discretion in determining that

this requirement of Rule 801(d)(1)(B) was met.

See Fulford, 980 F.2d at 1114; cf. United States

v. Williams, 128 F.3d 1128, 1133 (7th Cir. 1997).

/4 Because this holding overrules part of our decision in West, this opinion has been circulated to

all judges in regular active service in accor-
dance with Circuit Rule 40(e). No judge voted to

hear the case en banc.

/5 The same is true for the testimony that the

government later elicited from Cox, which simply

confirmed the information already elicited by

Green concerning Cox’s cooperation in the earlier

investigation.

/6 Green also relies on United States v. Taylor, 900

F.2d 779, 781 (4th Cir. 1990), which held that

evidence of convictions in other cases in which

the witness had testified was inadmissible under

Federal Rule of Evidence 608(b). However, Taylor

is distinguishable from this case because in

Taylor, no impeachment based on bias was attempted, and therefore evidence of the witness’s prior

successful cooperation in other trials was irrelevant and improper bolstering. See United States

v. Lindemann, supra, 85 F.3d at 1243.

/7 Green also complains that the government did not

disclose, until the day before Rock testified,

that he would say that he saw Green sell cocaine

to Hicks, Kelly, and Hill. No objection was made

to the timeliness or adequacy of the government’s

pretrial notice describing Rock’s testimony, so

our review of this point is for plain error. See

United States v. Robinson, 110 F.3d 1320, 1325

(8th Cir. 1997). Green has not articulated how

the allegedly inadequate or untimely notice

affected his trial preparation or strategy nor

has he demonstrated any prejudice from the single

brief reference to Green’s sales to Hicks, Kelly,

and Hill. Consequently, he has not met his burden

of demonstrating that the alleged error affected

his substantial rights (i.e., affected the outcome) or affected "the fairness, integrity, or

public reputation" of the trial, and we therefore

cannot conclude that the alleged error warrants

reversal. See United States v. Olano, 507 U.S.

725, 734 (1993); United States v. Mietus, 237

F.3d 866, 875 (7th Cir. 2001).