## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2176

___________ United States of America, * * Appellee, * * v. * * Harold J. Jones, * * Appellant. *

___________ Appeals from the United States District Court for the No. 97-2177 Western District of Missouri.

___________ United States of America, * * Appellee, * * v. * * James O. Cashaw, * * Appellant. *The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 1 Western District of Missouri. -2- ___________ No. 97-2178

___________ United States of America, * * Appellee, * * v. * * John L. Palmer, * * Appellant. *

___________ Submitted: January 14, 1998

Filed: November 17, 1998

___________ Before WOLLMAN, BRIGHT, and HEANEY, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
In this consolidated appeal, Harold J. Jones, James O. Cashaw, and John L

. Palmerappeal from their convictions and from the sentences imposed by the distric t cour t for conspiracy to possess with intent to distribute cocaine and cocaine base, in 1 violation of 21 U.S.C. §§ 841(a)(1)-(b)( 1) and 846. We affirm on all issues other thanJudge Wollman would affirm on this issue. 2 -3- Cas haw’s four-level enhancement as a leader or organizer of a criminal activit y involving five or more participants. 2 I. Background
On November 5 , 1991, Los Angeles, California, police made several arrests as the culmination of their investigation of an extensive narcotics distribution ring. The distri butionoperation included dozens of conspirators in numerous major cities , including Los Angeles, Kansas City, Atlanta, Detroit, Houston, and Denver. Anthony Rashid, one of the individuals arrested and a central figur e in the conspiracy, ultimately cooperated with authorities. Rashid assisted the government in examining the ful l scope of h is operation and identified key co-conspirators. Investigation revealed that Rashid’s operation functio ned as a conduit for smuggling massive amounts of cocaine and crack cocaine from sources in Houston and Los Angeles to other majo r metr opolitan areas for further distribution. Drugs and cash were smuggled in airlin e baggage, automobile tires, and containers within automobile gasoline tanks. As a result of the investigation, Jones, Cashaw, and Palmer were charged with conspiracy t o possess wi th intent to distribute cocaine. Jones was also charged with a crimina l forfeiture count under 21 U.S.C. § 853. Althou gh many of the participants in Rashid’s conspi racy eventually entered into plea agreements with the government, Jones , Cashaw, and

Palmer were tried, convicted, and sentenced for their involvement. The district court sentenced Cashaw to 360 months’ impr isonment, while Palmer and Jones were given 235-month terms each.
The go vernment’s case consisted of testimony from co-conspirators an d circumstantial evidence obtained by investigators. Evidence established that Jones , who sent large amounts of cash to Rashid and received large amounts of Rashid’ s cocaine bound for Kansas City, was Rashid’s principal distributor in the Kansas City-4-

area. Testimony also establish ed that Jones’s involvement included acting as a courier between Rashid and Bruce Pompey, Rash id’s brother, and providing Rashid with a .22 revolver and silencer . Cashaw, whose involvement placed him high in the distribution chain, w as responsible for supplying Rashid with substantial amounts of cocaine

. Casha w was also involved with Rashid as a partner in the foiled Los Angele s transaction

that resulted in Rashid’s arrest and the seizure of 76 kilograms of cocaine. Palmer, who was often called upon to ferry drug-laden automobiles to distributio n points and to smuggle large amounts of cash back to the source cities, was one o f Rashid’s principal couriers. The defendants raise a number of issues on appeal. All three allege prosecutorial misc onduct, contending that their convictions were the product of either the knowing, reck less, or negligent use of false testimony, or the failure to disclose exculpatory informat ionin violation of Brady v. Maryland , 373 U.S. 83 (1963). They also argu e that the district court made inadequate findings regarding drug amounts and erroneously
con cludedthat it was without authority to grant downward departures. Additionally , Jones raises jury instruction issues and a Fifth Amendment claim, Cashaw challenges his sentence enhancement, and Palmer contends that the government failed to present sufficient evidence to support his conviction.
II. Prosecutorial Misconduct The first allegation of prosecutorial misconduct concerns the government’ s representations m ade to the jury regarding a reduction in Rashid’s sentence. Rashid’s guilty plea and subsequent coopera tion were the product of the government’s promises of a se ntence reduction. Prior to the defendants’ trial, Rashid received a sentence o f 120 months, reduced from an initial s entencing range of 360 months to life. During his testimony in the present case, Rashid acknowledged tha t his sentence had been reduced as a resul t of the government’s motion. Rashid then went on to testify that FBI AgentThe Honorable Scott O. Wright, United States District Judge for the Western 3 District of Missouri. Judge Wright. 4 -5- Mark Foxhall had promised him two sentence reductions. There then followed thi s exchange between the prosecutor and Rashid: Q. Has that matter been discussed with you by representatives of the U.S. Attorneys Office, specifically have I spoke n with you about it? A. Yes, you h ave. And you have indicated you have no intention o f following through with that. Q. Did you indicate also that it is your intention to litigat e that at a later time? A. Absolutely.
Rashid l ater filed a motion pursuant to 28 U.S.C. § 2255 seeking the secon d reduction. The government did not oppose Rashid’s motion, and the district court 3 further reduce d his sentence from 120 months to five years. (By the time of th e sentencing in the present case, Rashid had served his time and was no longer i n custody .) The defendants contend that the government never intended to oppos e Rashid’s second reduction and therefore misrepresented its intentions to the jury. Ronald Whitley, a drug courier in the conspiracy, offered i ncriminating testimony against all three defendants. He received a 120-month sentence pursuant to a written plea agr eement with the government. Prior to the entry of Whitley’s guilty plea, a teleco nference took place between Whitley’s counsel, a government attorney, an d Whitley’s sentencing judge. During t he conference, the court indicated its intention to 4 sentence Whitley as a minimal participant and impose a sentence of not more than-6-

ten years. The court further stated that Whitley could receive a lesser sentence if h e agreed to cooperate with the government. Later, at his plea and sentencing, Whitle y denied any involvement with drugs, other than handling money that he thought was drug proceeds, and denied responsibility for or knowledge of any particular q uantity of drugs. The defendants, who sought full disclosure of all Brady material in pretrial motions , allege that the government never provided them with any of the information relevant to Whitley’s plea agreement or statements made during the teleconference. During Whitley’s direct examination in the present case, he stated that he was testifying pursuant to an agreement with the government; that he had received a ten-year sentence ; that he had agreed to testify subsequent to his sentencing; and that th e government had agreed to file a motion pursuant to Fed. R. Crim. P. 35(b) in exchange for his cooperation. Later, on redirect, the following colloquy occurred: [The Government]: Were you told if you were caught lying about anything your plea agreement would be torn up and thrown into the wind? Whitley: Yes.
[Jone s’s Attorney]: I object. That is a misrepresentation. I don’t thin k there is a plea agreement in this case. At least I haven’t been provided one by the government. [The Government]: There was a Rule 35 filed on your behalf.
[Jones’s At torney]: There was a motion. It doesn’t say anything abou t that. The Court: I think the plea agreement may be a loose way to describe the understanding. There is no written plea agreement as I understand it.-7-

[The Government]: No. Trial Transcript at 676-77.
A.
The defe ndants argue that the government knowingly presented false testimony by leading the jury to believe that it intended to oppose Rashid’s request for a second sentence reduction. The defendants have presented no evidence to support their bare assertion that the govern ment had no intention of opposing Rashid’s second reduction. Rather, they suggest that the representation made to the jury was false because th e government s ubsequently failed to oppose the reduction. We conclude, however, that the record adequately explains why the government did not follow throughon its earlierheld intention to oppose the second reduction. In a pre sentencing hearing before Judge Stevens (held some two years after the tri al), the government explained that it had made no objection to Rashid’s bid for a further sentence reduction because of Judge Wright’s unequivocallyexpressed intention to g rant the reduction on his own motion (why, we do not know) and his refusal t o bro ok any opposition to such a course of action. As an additional reason, th e governme nt stated that Agent Foxhall had been dismissed by the FBI for irregularities in deal ing with a confidential informant and was nowhere to be found, leaving th e government without evidence to oppose Rashid’s c ontention that he had been promised
an additional sentence reduction. This explanation, which we accept as true, reflect s little cr edit on the manner in which Rashid’s case was handled, but it refutes th e defendants’ contention that the government was guilty of fal sely representing to the jury that it intended to oppose a further reduction in Rashid’s sentence. Moreover, an y impact on the jury’s assessment of Rashid’s credibility resulting from the announcement of the go vernment’s then-held intention to oppose such a reduction must necessaril y have been minimal in light of the fact that Rashid had already received a-8-

most substantial reduction in his sentence. Finally, Rashi d’s testimony was not the only evidence against the defendants. As indicated below, the government introduce d sub stantial evidence linking the defendants to the conspiracy. Accordingly, w e conclude that the defendants’ claim of prosecutorial misconduct entitles them to n o relief.

B.

Th e defendants argue that the colloquy during Whitley’s testimony constitute d a false representation to the jury because Whit ley had in fact entered into a written plea bargain with the government. As the gov ernment points out, however, Whitley himself did n ot testify that there was no written plea bargain. When read in context, th e prosecutor’s “No” in response to the district court’s statement that there was no written plea agreement constituted an inadvertent misstatement in view of Whitley’s earlie r acknowledgment that his plea bargain would be torn up and thrown into the wind if he
was caug ht lying. At worst, the government’s response constituted harmless error i n light of the totality of the evidence against the defendants. The testimony of no fewer than six co-conspirators implicated the defendants in the conspiracy; physical evidence found in vehicles and buildings used in the conspiracy was linke d to the defendants; and telephon e pen registers linked the defendants to other members of the conspiracy

. Additionally, defense counsel impeached Whitley’s credibility with eviden ce of his prior denials to federal ag ents regarding Rashid’s criminal activities and of his agreement to te stify in exchange for a Rule 35(b) motion. Indeed, counsel’s cross-examinatio n elicited an admission from Whitley that he had lied to federal agents.
The de fendants also contend that the government wrongfully withheld Brad y evidence when it denied them what they characterize as “devastating impeachmen t ev idence” concerning statements made during Whitley’s sentencing and allege d improprieties surrounding his sentencing proceedings.-9-

The government’s failure to disclose evidence that is material to the issue of guilt and is exculpatory in nature violates a defendant’s right to due process. See Brady , 373 U.S. at 8 7. Brady materiality is not evaluated by a sufficiency of evidence test. Se e Kyles v. Whitley , 514 U.S. 419, 434 (1995). However, materiality is not established by the mere possibility that the withheld evidence may have influenced the jury. Se e Knox v. Iowa , 131 F.3d 1278, 1283 (8th Cir. 1997). “Rather, there must be a reasonable probability that its disclosure would have led to a different result at trial, thus
un dermining confidence in the jury verdict.” Id. There are a number of limitations to Brady , including the principle that information av ailable from other sources or evidence already po ssessed by a defendant is not covered by the rule. See United States v

. Gonzales , 90 F.3d 1363, 1368 (8th Cir. 1996). We conclude that the prosecution’s failure to disclose the existence of Whitley’s plea agr eement and alleged improper sentencing procedures does not undermine ou r confidence in t

he jury verdict. Whitley received a reduced sentence for his agreement to plead g uilty, and he did not agree to testify against the defendants until after he had been sentenced and incarcerated. Whitley’s testimony at the defendants’ trial was the product of the government’s promise to file a motion for a further reduc tion in Whitley’s
sen tence. The defendants were aware of the government’s promise, and they cross

examined Whitley on the subject. Thus, the alleged Brady material had little or n o e x culpatory value. Furthermore, although we may not rely solely on a sufficiency-ofevidence analysis to make a Brady determination, see Kyles , 514 U.S. at 434, it is of some significance that a wealth of other testimony was used to convict the defendants. It is not reasonably probable that disclosure of Whitley’s plea agreement and allege d sentencing improprieties would have resulted in a different verdict. Additionally, because tr anscripts of Whitley’s plea and sentencing hearing were readily available, we reject the defendants’ argument that the government wrongfullyThe defendants also argue that the government’s failure to turn over Whitley’s 5 state ments was a violation of the Jencks Act, 18 U.S.C. § 3500 (1997). The Jenck s Act requires the presentation of any statements made by a government witness after the witness has testified on direct examination for the government. See United States v. Willis , 997 F.2d 407, 413 (8th Cir. 1993). Whitley’s sentencing transcript, being a matter of public record, is not within the scope of the Jencks Act. See United States v. Isgro , 974 F.2d 1091, 1095 (9th Cir . 1992); United States v. Harris , 542 F.2d 1283, 1293 (7th Cir. 1976); United States v. Munroe , 421 F.2d 644, 645 (5th Cir. 1970). -10- withhe ld statements made by Whitley during the proceedings. See United States v

. 5 Jones , 34 F.3d 596, 600 (8th Cir. 1994). There is no Brady violation if “th e defe ndant[s], using reasonable diligence, could have obtained the information ” themselves. Westley v. Johnson , 83 F.3d 714, 726 (5th Cir. 1996), cert. denied , 117 S. Ct. 773 (199 7). See also United States v. Willis , 997 F.2d 407, 412-13 (8th Cir

. 1993). III. Drug Quantity Determinations The defendants challenge th e district court’s findings regarding its drug quantity dete rminations and the credibility of the witnesses it relied upon in making thos e det erminations. Rule 32 of the Federal Rules of Criminal Procedure sets forth th e pro cedure that the district court must follow when, as was the case here, a defendan t chall enges the factual accuracy of drug quantity information contained in th e Presentence Report (PSR):
For each matter co ntroverted, the court must make either a finding on the allegation or a determination that no finding is necessary because th e contro verted matter will not be taken into account in, or will not affect , sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to th e Bureau of Prisons.-11-

Fed. R. Crim. P. 32(c)(1). The sentencing guidel ines provide that, when resolving such disp utes, the sentencing court may consider relevant information that “has sufficien t indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3 (1997); see also United States v. Fetlow , 21 F.3d 243, 248 (8th Ci r. 1994). To provide meaningful appellate review, Rule 32(c)( 1) findings must meet a threshold standard of sufficiency. See Fetl ow , 21 F.3d at 248; United States v. Candie , 974 F.2d 61, 65 (8th Cir. 1992). We review such findings for clear error. See United States v. Edwards , 994 F.2d 417, 423 (8th Cir. 1993).
Citi ng United States v. Candie , the defendants contend that the district cour t made inadequate findings regarding the credibility of government witnesses. See 974 F.2d at 65. We disagree. In Candie , the distric t court commented, “I assume I have no alternative but to accept that [trial] evidence.” Id. Here, the district court made a n express finding that it consider ed the witnesses to be credible. See Edwards , 994 F.2d at 423 ; United States v. Mills , 987 F.2d 1311, 1317 (8th Cir. 1993). “[W]itnes s credibility is an issue for the sentencing judge that is virtually unreviewable on appeal,” Candie , 974 F.2d at

64, and we find no error in the district court’s credibility findings. The government must prove drug quantity by a preponderance of the evidence. See id. For eac h conspirator, the government must show that the quantities fell within the scope of criminal activity jointly undertaken by him and were reasonabl y foreseeable to him. SeeU.S.S.G. § 1B1. 3 commentary at n.2; United States v. Townley , 929 F.2d 365, 370 (8th Cir. 1991). The government established drug amounts attribu table to each defendant through the trial testimony of numerous witnesses. The district court overruled the defendants’ objections to the PSR drug quantity calculations and attributed m ore than 150 kilograms to each de fendant. Although we prefer that district courts specify the basis for thei r drug quantity findings, see United States v. Randolph , 101 F.3d 607, 609 (8th Cir

. 1996), we have held as adequate to satisfy the requirements of Rule 32(c)(1) a-12-

clear s tatement by the district court that it “was relying on its impression of th e testimony of the witnesses at trial, couple d with its specific rejection of the defendant’s quantity objections.” United States v. Flores , 73 F.3d 826, 835 (8th Cir.), cert. denied , 518 U.S. 1027 (1996). We are satisfied that the district court met this standard when it made its credibility findings and overruled the defendants’ objections. The dru g quanti ties were well supported by the evidence. Indeed, the testimony depicting th e massive scale of Rash id’s operations suggests that the district court’s findings were, if anything, conservative. Accordingly, we find no error in the court’s finding that th e scope of criminal activity jointly undertaken by the defendants and reasonabl y foreseeable to each included more than 150 kilograms of cocaine. IV. Sentencing Disparities

Allthree defendants argue that the district court erroneously determined that i t lacked authority to depart downw ard from the applicable Sentencing Guidelines range. The court, concerned about the disparities b etween the sentences given the cooperating
co-c onspirators and those it believed it was required to impose upon the defendants , expressed a desire to depart but concluded that it was bound by law to stay within the Guidelines. The defendants argue that the Sentencing Commission has implicitly encouraged sentencing disparity between codefendants as a departure factor. Our decisions ar e clear, h owever, that the disparity between sentences is not a permissible basis fo r departure. See, e.g. , United States v. Wong , 127 F.3d 725, 728 (8 th Cir. 1997); United States v. Polanco , 53 F.3d 893, 897 (8th Cir. 1995); United States v. Torres , 921 F.2d 196, 197 (8th Cir. 1990) (per curiam). Accordingly, the district court did not err i n rul ing that the disparity in the sentences given the testifying co-conspirators did no t authorize it to grant downward departures to the defendants.The following discussion represents Judge Wollman’s separate view on thi s 6 issue. -13- Jones cites Wong , 127 F.3d at 729 , for the proposition that the district court had authority to grant him a downward departure because he was gainfully employed , maintained a re lationship with his son, attended church, had significant debts, and had an excellent reputation in the community. Although a distr ict court may consider family ties and responsibilities in “extraordinary or exceptional” cases, we find no basis t o characterize Jones’s circum stances as extraordinary or exceptional. He has not shown that his family’s position differs substantially from that of other families similarl y situated. See United States v. Kapitzke , 130 F.3d 820, 822 (8th Cir. 1997). V. Individual Issues on Appeal Cashaw challenges the district court’s four-level enhanceme nt for his aggravating role as a leader or organizer of a criminal activity involving five or more participants. 6 SeeU.S.S.G . § 3B1.1(a). This factual finding is reviewed for clear error. See United States v. Mayer , 130 F.3d 338, 3 39 (8th Cir. 1997). Cashaw first argues that the court
errone ously relied on challenged portions of his PSR and failed to make adequat e findings regarding his role in the conspiracy. SeeFed. R. Crim. P. 32(c)(1). I disagree. As note d above, the district court made adequate credibility findings regarding th e governme nt

witnesses, and the role enhancement was supported by evidence tha t Ca shaw was instrumental in arranging for the movement and distribution of larg e amounts of dru gs. See United States v. Scott , 91 F.3d 1058, 1062-63 (8th Cir. 1996). Likewise, I find no merit in Cashaw’s contention that there was no evidence to support the fo ur-level enhancement. The definition of leadership or organization is to b e construed broadly. See Mayer , 130 F.3d at 340. I conclude that there was ampl e evidence that Cashaw was a catalyst in the distribution of at least two major cocain e shipments

. Indeed, Cashaw undertook an organizational role when he recruite d Rashid’s assistance in distributing both a 99-kilogram Houston cocaine shipment and-14-

the 76-kilogram Los Angeles cocaine shipment. Contrary to Cashaw’s arguments, a defendant can be held accou ntable as an organizer or leader under the Guidelines even if he did not directly control others in the conspiracy. See United States v. Miller , 91 F.3d 1160 , 1164 (8th Cir. 1996). Accordingly, I would hold that the district court did not err in imposing a four-level enhancement. Jones challenges th e district court’s refusal to charge the jury with his proposed buyer-seller jury instruction. Jones ci tes United States v. Prieskorn , 658 F.2d 631, 633 (8th Cir. 1981), as authority for his argument that a buyer-seller relationship alone does not establish conspiracy. Be that as it may, Jones was entitled to a buyer-selle r instruction only if the evide nce supported his theory. See United States v. Turner , 975 F.2d 490, 497 (8th Cir. 1992). We co nclude that it did not do so in this case in light of the massive amounts of cocaine involved and the inescapabl e conclusion that Jones was
re ceiving cocaine from Rashid for resale. See Turner , 975 F.2d at 497; United States
v. Hamell , 931 F.2d 466, 470 (8th Cir. 1991). Furthermore, the evidence shows tha t Jones played numerous roles in the conspiracy. He acted as a courier for Rashid on his Atlanta route, was a major distributor in Kansas City, and used his auto shop to hel p disassemble vehicles use d in smuggling. No reasonable juror could have believed that Jones and Rashid were merely involved in a buyer-seller relationship. See Turner , 975 F.2d at 498.

Jones also contends that he was entitled to a multiple conspiracy instruction

. Such an instructi on should only be given, however, where there is evidence to support its submission. See United States v. Lucht , 18 F.3d 541, 552 (8th Cir.), cert. denied , 513 U.S. 949 (1994). “If the evidence sufficiently supports only a theory of a singl e conspiracy , a district court does not err by refusing to give multiple conspirac y instructions.” United States v. Maza , 93 F. 3d 1390, 1398 (8th Cir. 1996), cert. denied , 117 S. Ct. 1008 (1997). Because the ev idence here established but a single conspiracy to move large quantities of drugs from source cities to numerous distribution pointsAll of the defendants argue that the Tenth Circuit’s recent decision in Unite d 7 Sta tes v. Singleton , 144 F.3d 1343 (10th Cir. 1998), requires the suppression of nonlaw enforcement witness testimony that was obtained through promises of leniency

. That decision has been vacated, however, and will be reheard by the Tenth Circuit en ban c. See United States v. Singleton , No. 97-3178 (10th Cir. July 10, 1998) (orde r granting rehearing en banc and vacating panel opinion). -15- thro ughout

the United States, the district court did not err in refusing to submit a multiple conspiracy instruction.

We find to be without merit Jones’s argument that the district court erred i n admitting certain statements he made to a Federal Bureau of Investigation agent.

Pal mer argues that the government failed to establish his participation in th e co nspiracy. Having viewed the evidence in a light most favorable to the verdict an d having accepted all reasonable inferences s upporting the conviction, as we are required to d o, see, e.g. , United States v. Holloway , 128 F.3d 1254, 1257 (8th Cir. 1997), w e conclude that Palmer’s role as a courier was more than adequately established. 7

HEAN EY, Circuit Judge, concurring in part and writing the majority opinion wit h respect to Cashaw’s enhancement, in which BRIGHT, Circuit Judge, joins.

We join in all but that portion of the court’s opinion affirming Cashaw’s four

level enhancement under U.S.S.G. § 3B1.1(a). We also write separatel y to highlight the district court’s discretion to grant a downward departure when the government’ s conduct direct

ly results in prejudice to a defendant which is significant enough to take the case out of the heartland of the Sentencing Guidelines. “At sentencing, the government bears the burden of proving, by a preponderance of the evidence, facts necessary to establish a defendant’s role in the offense.” United States v. Rodgers , 122 F.3d 1129, 1133 (8th Cir. 1997) (citations omitted). In-16-

determining whether to enhance a defendant’s sentence under § 3B1.1 o f the Sentencing Guide lines, the sentencing court should consider such factors as “the exercise o f decision making authority, the nature of participation in the commission of the offense, the recruitm ent of accomplices, the claimed right to a larger share of the fruits of th e crime, the de gree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised ove r others.” U.S.S.G. § 3B1.1, comment. (n. 4). While our court may broadly construe the def initionof leadership or organization, “if the words ‘organizer’ and ‘leader’ are t o have thei r ordinary meaning, a defendant must do more than sell [drugs] for resale. ” United St ates v. Miller , 91 F.3d 1160, 1164 (8th Cir. 1996) (citing United States v

. Rowley , 97 5 F.2d 1357, 1364 n.7 (8th Cir. 1992) (“[W]e have always require d evidence th at the defendant directed or procured the aid of underlings.”)); see als o United States v. Del Toro-Aguilera , 138 F.3d 340, 343 (8th Cir. 1998) (status a s supplier or distributor without more is insufficient to support a managerial enhancement under § 3B1.1).

Th e record in this case does not support the conclusion that Cashaw exercise d decision-making authority, recr uited accomplices, claimed right to a larger share of the fruits of the crime, participated in the planning or organization of the conspiracy, or had control or a uthority over others. Nothing in the record indicates that Cashaw di d anything other than provide drugs to Rashid. While Cashaw provided significan t amo unts of drugs to the conspiracy, his status as a supplier or distributor is alread y re flectedin his base-offense level. See Del Toro-Aguilera , 138 F.3d at 343; Unite d States v. Bryson , 110 F.3d 575, 585 (8th Cir. 1997). In this regard, th is case is factually indistingui shable from Miller . The record reveals that Cashaw did not undertake a n organizat ional role in Rashid’s drug operation, much less the Los Angeles or Houston cocaine shipments. Rather, Cashaw merely sold drugs for resale. At trial, for example, Rashid testified that “Mr. Cashaw was a supplier. He was not part of my operation.” (Tr. at 122.) Rashid also testified that he never invited Cashaw to California and that Cashaw did not “have any control over where [Rashid was] going-17-

with any co ntraband [Rashid] may have received in California.” (Tr. at 144.) With respect to the Houston s hipment, the record similarly indicates that Cashaw was either reselling drugs he had himself purchased or embarking on a joint venture to purchase drugs. In sum, [Cashaw] was not the “organizer” or “leader” of a conspiracy. Although [he] sold large enou gh quantities of [cocaine] that it is reasonable to infer that he knew the drugs were being resold, [he] did not have an y involvement in the resales. There is no evidence that [Cashaw] controlled his buyers in their resale of the [cocaine].
Miller , 91 F.3d

at 1164. Because Cashaw’s role in the offense does not satisfy any of the factors enumera

ted in the commentary to the Sentencing Guidelines and because it
was lim ited to selling drugs for resale, the district court committed clear error b y imposing a four-level enhancement under § 3B1.1(a).

F u rthermore, we note that this case exemplifies an emerging trend in which the gov ernment

secures a substantially reduced sentence for the principals of a dru g con spiracy in exchange for their testimony against lesser members of the conspiracy

. This trend generally results in the principals receiving substantial ly lower sentences than the lesser members an d is yet another example of how the Sentencing Guidelines have transferred the discretion once held by judges to the government. While court s generally endorse this anomalous byprodu ct of the Sentencing Guidelines, to the extent that the government’s behavior directly results in prejudice to a defendant, which i s sign ificant

enough to take the case out of the heartland of the Sentencing Guidelines , district courts have the discretion to grant an appropriate downward departure.

As the court’s opinion correctly notes, the government was less than forthright wi ththe jury about its arrangements with Rashid and Whitley regarding th e consequences of their testimony. The district court sentenced Jones and Palmer to 235 months each and Cashaw to 360 months imprisonment. Rashid, far and away the-18-

kingpin of the c onspiracy, originally faced a sentence of 360 months to life which was ultimate ly reduced to 60 months for his cooperation in testifying against the lesse r members of

the conspiracy. At Cashaw’s sentencing, the district court responded t o Cashaw’s request for a downward departure: [T]h is simply isn’t fair and doesn’t make a lot of sense and I agree with that bu t I unfortunately, or maybe fortunately, cannot be responsible fo r the actions of other judges in other cases. And the fact that there may be some apparent inconsistencies is something that a co urt of higher authority than mine is going to have to address. (Sentencing Tr. at 3.) In addition, the district court stated that “I am personall y offended by the differences that the law dictates in these sentences but there is nothing I can do about it.” (Sentencing Tr. at 76.)

In pro mulgating § 3B1.1, the Sentencing Commission included manageria l adjustments “prima

rily because of concerns about relative responsibility.” U.S.S.G. § 3B 1.1, comment. (backg’d); see also United States v. Rodrigues , 112 F.3d 374, 37 7 (8th Cir. 1997) (“The a djustment for being an organizer or leader is intended to reflect rel ative responsibility compared to other participants in the crime.”). While th e Sen tencing Guidelines apportion sentences based at least in part on the relativ e responsi bility of each conspirator in a conspiracy, “dissatisfaction with the availabl e sent encing range or a preference for a different sentence than that authorized by th e guidelines is not an appropriate basis for a sentence outside the applicable guidelin e range.” U.S.S.G. § 5K2.0, comment. Thus, a district court does not have the discretion to grant a downward departure if its only objection is the dispari ty of sentences between co-conspirators. However, where the government’s conduct directly res ults in prejudice to a defendant, which is significant enough to take the case out of the heartland of the guidelines, the district court has the discretion to impose a downward departure. See United States v. Lopez , 106 F.3d 309, 311 (9th Cir. 1997) (Lay, J.) (citing Koon v

. United States , 116 S. Ct. 2035, 2046 (1996)).-19-

Be cause the district court committed clear error by imposing a four-leve l managerial enhancement und er § 3B1.1(a), Cashaw’s sentence is vacated and the case is remanded for resentencing. Also, if the district court on remand determines that any of the appellants were directly prejudiced by the government’s conduct significantl y enoughto take the case out of the heartland of the Sentencing Guidelines, it ma y ex ercise its discretion in determining whether to grant an appropriate downwar d departure. A true copy.

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