                                   ___________

                                   No. 96-1731
                                   ___________

United States of America,              *
                                       *
             Appellee,                 *   Appeal from the United States
                                       *   District Court for the
     v.                                *   District of Nebraska.
                                       *
Clarence Robinson,                     *
                                       *
             Appellant.                *


                                   ___________

                     Submitted:    October 25, 1996

                          Filed:   April 4, 1997
                                   ___________

Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                   ___________

BOWMAN, Circuit Judge.


     A jury found Clarence Robinson guilty of conspiring to distribute and
possess with intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994).    The District Court1 sentenced Robinson to life
in prison.     Robinson appeals both his conviction and his sentence.      We
affirm.


                                      I.
     The following statement of facts is based on the evidence presented
at Robinson's trial, viewed as it must be in the light most favorable to
the verdict.   From approximately August 1, 1993 through January 31, 1994,
a number of individuals, including Robinson, conspired to transport cocaine
base from Bakersfield,




     1
     The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
California, to Omaha for distribution.               The drug conspiracy was uncovered
by Omaha police during the investigation of an apparent double homicide.
While searching the car in which the two bodies were discovered, police
located   a   telephone      number   that     was    eventually     traced    to   an    Omaha
apartment.    When officers arrived at that residence, two individuals, one
of them Darrell Duke, who was later charged as a coconspirator with
Robinson, were inside.         The officers, after observing marijuana in the
apartment, procured a search warrant for the premises and eventually
recovered more than $11,000 in currency.              Through subsequent investigation,
the police discovered that one of the homicide victims was associated with
a group of individuals who transported cocaine base from Bakersfield and
distributed the drugs in Omaha.


     The participants in this conspiracy purchased powder cocaine in the
Bakersfield    area,   "rocking       up"    the    powder    into   cocaine   base      before
transporting it to Omaha for distribution.                    The amount of cocaine base
transported into Omaha increased with each shipment as the conspirators
reinvested their drug proceeds into the purchase of ever greater amounts
of powder cocaine.     The conspirators arranged a total of ten cocaine base
shipments into Omaha, culminating in the final eighty-three ounce shipment
in which Robinson was personally involved.              The drugs were moved into Omaha
by private vehicle or by couriers who used public transportation.                           All
couriers were met at Omaha terminals and driven to "safe" houses by
conspirators who had traveled to Omaha by separate carrier or who were
temporarily living in Omaha.


     Once the cocaine base reached Omaha, it was distributed to local
dealers and eventually resold by these local dealers in Omaha.                      Proceeds
collected     from   local    dealers       were    bundled    and   transported    back     to
Bakersfield.    On at least one occasion, the conspirators chemically treated
the drug proceeds to avoid canine detection during the transportation of
the funds by public carrier.




                                              -2-
        During the course of the conspiracy, Brian Duke was primarily
responsible for purchasing the powder cocaine, Wamai Smith was primarily
responsible for making transportation arrangements, and Thomas Cotton was
primarily responsible for distributing the cocaine base once it reached
Omaha.    Robinson's involvement in the conspiracy began when Duke approached
him about joining the enterprise.      Duke had become suspicious of Cotton
because Cotton had launched his own drug distribution enterprise in Omaha
while continuing his involvement with Duke's enterprise.      Duke testified
that he intended for Robinson to oversee Cotton's activities in Omaha and
to report any disloyalty.   Eventually, Duke testified, Robinson was to take
over Cotton's distribution duties in Omaha.         Robinson was thereafter
introduced to all facets of the conspiracy, from processing the powder
cocaine in Bakersfield, through transporting and distributing the drugs,
to packaging and delivering the drug proceeds back to Bakersfield.


        Robinson personally assisted in "rocking up" and packaging the final
eighty-three ounce shipment of cocaine base destined for delivery in Omaha.
He traveled to Omaha to observe Cotton's activities and, while in Omaha,
observed the packaging and chemical treatment of the drug proceeds for
shipment back to Bakersfield.   Smith testified that he paid Robinson $1,000
for accompanying Cotton to Omaha and for packaging a portion of the cocaine
base.    Cotton testified that Robinson held some of the drug proceeds to
avoid a total loss of profits if Cotton were apprehended.


                                     II.


        Robinson, Brian Duke, Darrell Duke, Thomas Cotton, Wamai Smith, and
other individuals were indicted by a grand jury in Nebraska on drug
trafficking charges.    Robinson, arrested in California, was transferred to
Nebraska to face charges.    Each of Robinson's coconspirators pled guilty.
Robinson, however, entered




                                     -3-
a plea of not guilty, was tried by a jury, and was convicted of the charged
crime.


        In   this   direct   appeal,       Robinson     argues    that   the    evidence    is
insufficient to support his conviction; that the District Court abused its
discretion by admitting evidence of "other crimes" under Rule 404(b); that
plain error occurred when the prosecutor made improper comments during the
government's closing argument; and that the District Court erred in
computing his sentence.


                                            III.
        We turn first to Robinson's argument that the evidence presented at
trial was insufficient to support his conviction.                 The government offered
the testimony of two Bakersfield police officers who described Robinson's
prior    felony     drug   arrests    in   order   to    establish   Robinson's     motive,
knowledge, and intent with respect to the charged conspiracy.                              The
government      also   offered       the   testimony     of   a   number   of    Robinson's
coconspirators establishing that Robinson had participated in weighing and
packaging cocaine base destined for sale in Omaha; that Robinson traveled
to Omaha to monitor and to report on the activities of a fellow conspirator
and to become familiar with the distribution activities in Omaha; that he
was present while the participants bundled money earned from the sale of
cocaine base in Omaha, spraying the money with chemicals to avoid canine
detection during delivery of the money to California; and that he concealed
a portion of the drug proceeds during travel with a fellow conspirator to
prevent a total monetary loss in the event one of them was stopped by
police.      Robinson claims that the testimony of his coconspirators should
have been disregarded as incredible.            As always, it is "the sole province
of the jury to weigh the credibility of a witness" and we will not disturb
such credibility determinations.           United States v. Martinez, 958 F.2d 217,
218 (8th Cir. 1992).       We conclude that the evidence presented at trial was
sufficient to support Robinson's conviction.




                                             -4-
        In    a    more   particularized    challenge        to   the   sufficiency      of    the
evidence, Robinson argues that his conviction must be reversed because the
government failed to prove the existence of a single conspiracy as charged
in   the      indictment,     and    instead    proved      the    existence      of    multiple
conspiracies.         In support of this argument, Robinson claims that Thomas
Cotton       abandoned     the    conspiracy    to    embark      on    a    separate   cocaine
distribution operation.           Because Robinson raises this issue for the first
time on appeal, our standard of review is plain error.                      Reversal under this
standard is warranted only if "(1) the court committed an error; (2) the
error    is       clear   under   current   law;     and    (3)   the   error    affects      [the
defendant's] substantial rights."              United States v. Turner, No. 96-1857,
slip op. at 8 (8th Cir. Jan. 13, 1997).                However, even if there has been
plain error affecting the defendant's substantial rights, whether this
Court will notice the error is a matter of discretion, and we reverse for
plain error only where the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.                 United States v. Olano, 507
U.S. 725, 736 (1993); United States v. Griggs, 71 F.3d 276, 279 (8th Cir.
1995).


        Whether a single conspiracy or multiple conspiracies exists is a
question of fact for the jury to decide.                   See United States v. Holt, 969
F.2d 685, 687 (8th Cir. 1992).                 Simply because the participants in a
conspiracy change over time does not prove the existence of multiple
conspiracies.         Rather, "where the remaining conspirators continue to act
in furtherance of the conspiracy to distribute drugs, the conspiracy
continues."         See United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir.
1996).       The government presented sufficient evidence for a jury to conclude
that the conspirators, including Robinson, continued to pursue their joint,
primary objective to distribute cocaine base in Omaha despite some change
in personnel.        Given the weight of the evidence establishing a continuing
conspiracy, we find that Robinson has failed to show any error, plain or
otherwise.




                                               -5-
                                     IV.


      Robinson argues that the District Court improperly admitted into
evidence the testimony of the two police officers who described Robinson's
prior felony drug arrests.    The District Court conducted a hearing outside
the presence of the jury and determined that this evidence was admissible
to show Robinson's knowledge, intent, motive, and lack of mistake.      The
testimony of the arresting officers confirmed that Robinson had two prior
felony drug arrests.   They testified that on February 20, 1991 and again
on   November 28, 1991, Robinson was arrested while in possession of
distributable amounts of cocaine base.


      Robinson claims that this evidence was inadmissible under Federal
Rule of Evidence 404(b).     This rule "generally prohibits the introduction
of evidence of extrinsic acts that might adversely reflect on the actor's
character, unless that evidence bears upon a relevant issue in the case
such as motive, opportunity, or knowledge."    Huddleston v. United States,
485 U.S. 681, 685 (1988); see United States v. Wint, 974 F.2d 961, 966 (8th
Cir. 1992), cert. denied, 506 U.S. 1062 (1993).
      Evidence is admissible under Rule 404(b) if it is relevant to a
material issue, involves an act similar in kind and close in time to the
charged crime, is proved by a preponderance of the evidence, and if its
probative value is not outweighed by its potential for unfair prejudice.
See United States v. Mora, 81 F.3d 781, 783 (8th Cir.), cert. denied, 117
S. Ct. 362 (1996).   The district court has broad discretion in determining
whether to admit or exclude evidence, and we reverse such rulings only for
a clear and prejudicial abuse of that discretion.    See King v. Ahrens, 16
F.3d 265, 268 (8th Cir. 1994).


       Robinson claimed at trial that he was "merely present" at various
times during the course of the conspiracy.     The challenged




                                      -6-
evidence "was relevant to disprove the knowledge and intent issues raised
by [Robinson's] defense."    United States v. Wiley, 29 F.3d 345, 351 (8th
Cir.), cert. denied, 115 S. Ct. 522 (1994); see Wint, 974 F.2d at 967
(noting that testimony about prior drug transactions is admissible to prove
that a defendant acted knowingly and intentionally).   The disputed evidence
involved the same illegal substance and similar illegal behavior as that
involved in the charged crime.     See Wint, 974 F.2d at 967 (evidence of
prior arrest for possession of distributable amount of crack cocaine was
sufficiently similar to conspiracy to distribute cocaine).    The contested
evidence showed that Robinson was arrested on February 21, 1991 and again
on November 28, 1991 while in possession of distributable amounts of
cocaine base.    Although "there is no fixed period within which the prior
acts must have occurred," United States v. Baker, 82 F.3d 273, 276 (8th
Cir.), cert. denied, 117 S. Ct. 538 (1996), acts committed within three
years prior to the charged crime, as is the case here, are sufficiently
close in time.     See Wint, 974 F.2d at 967 (five years is sufficiently
close).   The government proved the circumstances regarding Robinson's two
previous arrests by a preponderance of the evidence.         The arresting
officers themselves testified and, from this evidence, the jury could
"reasonably conclude that the act[s] occurred and that the defendant was
the actor."2    Huddleston, 485 U.S. at 689.   In balancing the danger of
unfair prejudice and probative value of other crimes evidence in accordance
with Rule 403, the district court's determination is given great deference.
See United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.), cert.




     2
      The appellant's brief misstates the instruction given by the
District Court to the jury before the arresting officers testified
and maintains that this instruction amounted to a "mandate binding
the jury to a conclusive presumption" that Robinson had committed
the prior acts. Appellant's Brief at 12. On the contrary, the
District Court merely advised the jury that it would hear evidence
that Robinson had committed the prior acts and properly left to the
jury the determination of whether the government had carried its
burden of proving the prior acts by a preponderance of the
evidence.

                                    -7-
denied, 474 U.S. 980 (1985).           The disputed evidence served directly to
rebut Robinson's "mere presence" defense.                See Wiley, 29 F.3d at 351.
Moreover, the District Court instructed the jury before the officers
testified and again at the conclusion of the trial on the limited purpose
for which it could consider this evidence.               See United States v. Marion,
977 F.2d 1284, 1288 (8th Cir. 1992).                 We conclude that the evidence
regarding Robinson's prior arrests was properly admitted under Rule 404(b).


      Robinson advances a related argument that the evidence against him,
absent the challenged 404(b) evidence, was insufficient to support his
conviction    and   that    the   District     Court's    admission    of    the   evidence
concerning    his   prior    arrests    was,    therefore,    more    prejudicial      than
probative.    This argument is flawed on every level.                As we already have
observed, the evidence of Robinson's prior drug arrests assisted the
government in rebutting his "mere presence" defense.                   The evidence was
relevant to a disputed issue of fact on which the government had the burden
of   proof,   and   the    District    Court   did   not   abuse     its    discretion   in
determining that the evidence's potential for unfair prejudice did not
outweigh its probative value.         Moreover, having reviewed the record, we are
satisfied that the government's evidence, with or without the 404(b)
evidence, is sufficient to support Robinson's conviction.


      Robinson's final challenge to the admission of the other crimes
evidence alleges that the government went beyond the scope of the notice
provided pursuant to Rule 404(b).3           Because Robinson failed to raise this
issue below, our standard of review is plain error.




      3
     Federal Rule of Evidence 404(b) states that "upon request by
the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial . . . of the general nature
of any such evidence it intends to introduce at trial."

                                          -8-
      Robinson     argues        that   the    notice    forewarned       him     only    of     the
government's      intent    to    introduce     the     enumerated     prior      instances       of
possession of cocaine base, and that the government actually introduced
evidence of prior instances of distribution of cocaine base, thus exceeding
the scope of the notice and prejudicially affecting the trial.                                 This,
according to Robinson, amounts to plain error.                 We disagree.       The advisory
committee notes to Rule 404(b) explain that the notice requirement is
intended to operate as "a generalized notice provision which requires the
prosecution to apprise the defense of the general nature of the evidence
of   extrinsic    acts"     in    order   to   "reduce      surprise      and   promote        early
resolution on the issue of admissibility."                     Fed. R. Evid. 404 advisory
committee's note.         The trial court has discretion to reject the evidence
if the court finds that the notice is unreasonable due to "lack of . . .
completeness."      Id.


      The notice filed with the District Court and furnished to Robinson
provided    the    necessary       information        and     complied     with    the     notice
requirements of Rule 404(b).                  The notice advised Robinson that the
government intended to introduce evidence that he was arrested while in
possession of cocaine base on two specific dates.                        That the government
would seek to introduce all the particulars of those arrests, namely, that
Robinson was in possession of distributable amounts of cocaine base on both
occasions   and    that     he    was   apprehended      in    areas     notorious       for    drug
trafficking activity, should have come as no surprise to Robinson.                              This
evidence was neither outside the scope of the government's notice nor
unreasonable under the standard provided by the advisory committee notes.
Furthermore, the District Court conducted a hearing outside the presence
of the jury before the officers testified and determined that this evidence
was admissible and was encompassed within the government's notice.                                We
agree and conclude that there was no error, plain or otherwise, in
admitting this evidence.




                                               -9-
                                  V.


     Robinson argues that he was prejudiced as a result of statements made
by the prosecutor during closing argument.4    These remarks, according to
Robinson, deprived him of a fair trial and resulted in a miscarriage of
justice.


     Robinson's counsel failed to object to the prosecutor's comments
during trial.    "If an arguably improper statement made during closing
argument is not objected to by defense counsel, this court will only
reverse under exceptional circumstances."     United States v. Nabors, 761
F.2d 465, 470 (8th Cir.), cert. denied, 474 U.S. 851 (1985); see United
States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993).    Comments made by
a prosecutor during closing argument, to which no objection is lodged, are
reviewed for plain


     4
      Robinson calls our attention to the following comments made
by the government during its closing argument:

     There is no question that it was a violent group of
     individuals. There was testimony that they carried guns
     at various times; that people were shot; this guy was
     killed during the time frame (indicating). It's a rough,
     tough, mean, violent business and these are the people
     that did that. But the defendant was their friend. He
     was the person they hung around with. He hung around
     with them. You may not condone their life-style, or what
     they are doing, and obviously you don't, but this is who
     he runs with, all of these (indicating).

Tr. at 365. Robinson also challenges the following comments made
during the government's rebuttal closing argument:

     [Defense counsel] would have you believe that the
     defendant was here in Omaha with a few of his friends for
     a good time in December of 1993. I submit to you that's
     incredible. Look at Mr. Robinson's situation. He dealt
     crack before he came. He dealt crack after he went home.
     He has no job and he hangs around with everyone that is
     rocking up crack cocaine, bringing it out to Omaha, and
     he just happens to be out here when they bring it.

Tr. at 381-82.

                                  -10-
error.     See Feingold v. United States, 49 F.3d 437, 439 (8th Cir. 1995);
United States v. McMurray, 20 F.3d 831, 834 (8th Cir. 1994).                 Robinson is
entitled to relief only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.                 See Olano, 507
U.S. at 736.


     We do not detect the plain error required to warrant reversal of
Robinson's conviction.          The District Court instructed the jury before
closing arguments began that the statements of counsel are not evidence.
See Nabors, 761 F.2d at 470.         These instructions served to alleviate any
risk of prejudicial impact.        Moreover, the remarks regarding the violent
nature   of   the   conspirators     were   merely   a   summary   of   the   testimony
introduced during trial.          A number of the conspirators testified to
possessing firearms during the course of the conspiracy, and the prosecutor
did not suggest that Robinson had carried a weapon.                     Thomas Cotton
testified that he was shot during an attempt to obtain cocaine, and Brian
Duke testified to threatening and robbing an individual to obtain the first
batch of cocaine that was eventually transported to Omaha.


     The      comments   regarding    Robinson's     previous      arrests    while   in
possession of cocaine base and his lack of gainful employment were likewise
based on evidence presented at trial.          Moreover, these remarks were made
during the prosecutor's rebuttal closing argument and were in direct
response to defense counsel's attempt during his closing argument to
portray Robinson as an innocent victim and to advance his "mere presence"
defense.


     Robinson calls our attention to United States v. Cannon, 88 F.3d
1495, 1502 (8th Cir. 1996), wherein defense counsel objected to the
prosecutor's reference to the defendants as "bad people." Applying an abuse
of discretion standard, this Court found that the remarks, as well as the
prosecutor's attempt to play on the jury's "parochial allegiances," were
improper and the District Court's failure to take curative action was an
abuse of discretion.      Id.




                                        -11-
Cannon is readily distinguishable from the present case.                       Here, the
prosecutor did not attach a label to Robinson or express an opinion as to
his   character.        Rather, she referred to the violent nature of the
participants in this conspiracy--references that were supported                    by the
testimony        of   the   conspirators   themselves--and       to   Robinson's    prior
involvement with cocaine base--a reference that also was supported by the
evidence.


      Moreover, the present case differs from Cannon in that Robinson's
defense    counsel      lodged    no   objection   to     the   prosecutor's   comments.
Therefore, our review is only for plain error.                  As suggested above, we
fail to see anything in the prosecutor's remarks that amounts to plain
error.    Indeed, we have difficulty in discerning any impropriety at all in
the prosecutor's remarks.           So long as prosecutors do not stray from the
evidence and the reasonable inferences that may be drawn from it, they, no
less than defense counsel, are free to use colorful and forceful language
in their arguments to the jury.            Robinson's attack on the prosecutor's
remarks, therefore, must fail under any standard of review.


                                           VI.


      Finally, we consider Robinson's arguments regarding his sentence.
During Robinson's sentencing hearing, the government presented evidence in
support     of     Robinson's    prior   felony    drug    convictions   for    sentence
enhancement purposes.            The District Court, relying on the presentence
report prepared after Robinson's trial, attributed eighty-three ounces of
cocaine base to Robinson and, because he had been twice convicted on felony
drug charges, sentenced Robinson to life imprisonment as required by 21
U.S.C. § 841(b)(1)(A) (1994).


      Robinson first argues that the government failed timely to file its
information regarding the prior convictions under 21




                                           -12-
U.S.C. § 851(a)(1),5 a prerequisite for sentence enhancement under 21
U.S.C. § 841(b) (1994).        See Neary v. United States, 998 F.2d 563, 565 (8th
Cir. 1993).      The government's failure to file the information before his
trial began, according to Robinson, requires that his conviction be
vacated.    We find this argument to be without merit.


      We have held that, for purposes of section 851, the government must
file its information before jury selection begins, thus allowing the
defendant "ample time to determine whether he should enter a plea or go to
trial,    and    to   plan   his    trial   strategy    with   full   knowledge     of    the
consequences of a potential guilty verdict."             United States v. Johnson, 944
F.2d 396, 407 (8th Cir. 1991), cert. denied, 502 U.S. 1008 (1991), 502 U.S.
1078 (1992), 504 U.S. 977 (1992).            The record indicates that the District
Court, beginning at 1:40 p.m. on October 10, 1995, conducted a pre-trial
hearing    to    determine    the    admissibility     of    the   Rule   404(b)   evidence
concerning Robinson's prior arrests.           After this hearing, which lasted only
a few minutes, the prosecutor requested a short recess to file the
information, which was granted.             Only after the information was filed at
1:46 p.m. were the proceedings resumed and the pool of potential jurors
brought into the courtroom for voir dire.            It is clear from the record that
the government filed its information before the jury selection process
began.      We    conclude,    therefore,     that     the   government    complied      with
§   851(a)(1) and that the District Court did not err in relying on
Robinson's prior felony drug convictions to enhance his sentence under
§ 841(b)(1)(A).




      5
         Section 851(a)(1) provides:

      No person who stands convicted of an offense under this
      part shall be sentenced to increased punishment by reason
      of one or more prior convictions, unless before trial
      . . . the United States attorney files an information
      with the court (and serves a copy on the person or
      counsel for the person) stating in writing the previous
      convictions to be relied upon.

                                            -13-
     Robinson next claims there was insufficient evidence for the District
Court to attribute to him fifty or more grams of cocaine base for
sentencing purposes.6    The Presentence Investigation Report (PSR) indicates
that the conspirators were responsible for transporting a total of 7.5
kilograms of cocaine base into Omaha. The PSR concludes, however, that
Robinson personally assisted in the manufacture and delivery of eighty-
three ounces (2.35 kilograms) of the total amount of cocaine base.    Because
Robinson was facing life imprisonment whether eighty-three ounces or 7.5
kilograms of cocaine base were attributed to him, the PSR recommended
attributing to Robinson eighty-three ounces of cocaine base.         Robinson
failed to object to any of the findings in the PSR.         As a result, the
District Court adopted the PSR and the facts set forth therein as its
findings of fact for sentencing purposes.    Absent an objection to the drug-
quantity finding recommended by the PSR, the District Court was not
required to hold an evidentiary hearing into the quantity of drugs
attributable to Robinson.      See United States v. Goodwin, 72 F.3d 88, 90
(8th Cir. 1995).


     Furthermore, even if Robinson had objected to the drug quantity
attributed to him in the PSR, it is apparent that the evidence presented
at trial is sufficient to support a finding that Robinson was responsible
for at least eighty-three ounces of cocaine base.        "A district court's
determination of drug quantity is reviewed for clear error."    United States
v. Smith, 49 F.3d 362, 365 (8th Cir.), cert. denied, 115 S. Ct. 2009, 115
S. Ct. 2264 (1995).     Given the trial testimony of Robinson's coconspirators
that Robinson personally assisted them in "rocking up" eighty-three ounces
of cocaine base and packaging it for delivery to Omaha, we




       6
       If fifty grams or more of cocaine base are attributed to
Robinson, then because of his two prior felony drug convictions he
is subject to mandatory life imprisonment under 21 U.S.C.
§ 841(b)(1)(A)(iii) (1994). However, if less than that amount of
cocaine base is attributed to Robinson, he is not subject to
mandatory life imprisonment. See 21 U.S.C. § 841(b)(1)(B).

                                      -14-
cannot say the District Court committed clear error in attributing eighty-
three ounces of cocaine base to Robinson for sentencing purposes.


        We   find   Robinson's   remaining      arguments,    which    challenge     the
constitutionality of his sentence enhancement, to be entirely without
merit, and we decline to address them further.


                                        VII.


        The judgment of the District Court is affirmed.


HEANEY, Circuit Judge, concurring.
        I write separately to express my dismay about the result in this
case.    Clarence Robinson, a young black man, was a small player in a large
cocaine conspiracy.      He was brought into the enterprise late in the game
by a long-time friend who was one of the leaders of the enterprise.                There
is no evidence that Robinson distributed any drugs,and although the cocaine
base attributable to the conspiracy had a street value of approximately
$150,000, Robinson pocketed only $1,000 for his small role. Because
Robinson had two prior felony convictions for drug possession and because
those convictions were noticed by the government prior to trial, Robinson
will serve a mandatory life sentence for his crime.                 None of the other
members of this conspiracy--including the three leaders--were sentenced to
longer than 120 months in prison.
        At sentencing, the district court's hands were tied.              Despite the
court's statement that it was "disturbed" about its lack of discretion and
that    it   thought   the   sentence   was    unjust,   a   life   sentence   without
possibility of parole was mandatory for Robinson under 21 U.S.C. §
841(b)(1)(A)(iii).     Congress has clearly elected to eschew individualized
sentencing for repeat drug offenders in favor of a draconian approach that
is unmistakably tough on crime.




                                        -15-
I   am    aware    that   our    circuit   has    held   the    three-strikes   scheme
constitutional.      United States v. Prior, 1997 WL 80253 at *3-4 (8th Cir.
Feb. 27, 1997); see also United States v. Farmer, 73 F.3d 836 (8th Cir.
1996) (rejecting double jeopardy and ex post facto challenges to 18 U.S.C.
§ 359(c), which imposes mandatory life sentence for persons convicted of
three or more specified "serious violent crimes"), cert. denied, 116 S. Ct.
2570 (1996).      I fear, however, that fairness is too often sacrificed in the
process.


         Any sentencing discretion in this case rested with the prosecution,
not the court.      First, if the government had not elected before trial to
file with the court a written notice of Robinson's prior convictions as
required under 21 U.S.C. § 851, the court could not have imposed the
statutory enhancement.          Barring the government's failure to give notice,
the only possible way Robinson could have avoided a life sentence after his
conviction would have been if the government moved for a downward departure
based on his substantial assistance.          See United States v. Prior, 1997 WL
80253 at *4 (8th Cir. Feb. 27, 1997). Here, where Robinson would not admit
to being part of a large drug conspiracy, putting the government to its
proof may have literally cost him his life.                    One of Robinson's co-
defendants, who also faced a mandatory life sentence under section 841(b),
chose instead to cooperate with the government.            Based on the government's
request for a sentencing departure, the co-defendant received only a 120-
month sentence notwithstanding that he was undeniably one of the leaders
in the operation.      The contrast between that punishment and Robinson's, in
light of the relative culpability, is unconscionable.


         Unfortunately, Congress has taken away the court’s ability to use its
informed discretion in these matters, placing any discretion instead in the
prosecution.      Under existing    law, one can only hope that prosecutors will
use that discretion wisely.




                                           -16-
A true copy.


     Attest:


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




                            -17-
