                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 07-1078
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Annette Marie Canania,                  *
                                        *
            Appellant.                  *

      ___________
                                            Appeals from the United States
      No. 07-1329                           District Court for the
      ___________                           Eastern District of Missouri.


United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Gerald Robinson,                        *
                                        *
            Appellant.                  *

                                  ___________

                             Submitted: November 15, 2007
                                Filed: July 14, 2008 (Corrected: 07/30/2008)
                                 ___________
Before MELLOY, BRIGHT, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.

       Annette Marie Canania and Gerald Robinson were convicted of one count of
conspiracy to possess pseudoephedrine knowing it would be used to manufacture
methamphetamine and two counts of possession of pseudoephedrine knowing it would
be used to manufacture methamphetamine, pursuant to 21 U.S.C. § 841(c)(2). The
district court1 sentenced Canania and Robinson to 240 and 220 months imprisonment,
respectively. From their sentences, they appeal. Their cases are now consolidated on
appeal. We affirm.


                                           I.


      In December of 2003, officers with the St. Louis County Multi-Jurisdictional
Drug Task Force obtained consent to search the residence of Julie Friend. Therein,
the officers found methamphetamine and numerous items related to the use and
manufacture of methamphetamine. Friend became an informant for the officers and
provided them information about the involvement of Canania and Robinson in the sale
and manufacture of methamphetamine. Friend was a “shopper” for Canania. A
“shopper” is a person who obtains precursors, such as: cold tablets from which
pseudoephedrine could be derived; lithium batteries; fish tank hoses; windshield
washer solvent; and Heet.2 Wearing a hidden recording device, Friend delivered some


      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
      2
        Heet is the brand name of a fuel additive which is designed for use as a gas-line
antifreeze and water remover. It is also commonly used in the manufacture of
methamphetamine.

                                          -2-
pseudoephedrine pills to Canania. Law enforcement officers observed Friend enter
Canania and Robinson’s residence at 2230 Hood Street, St. Louis, Missouri, with the
pills and exit without the pills. Based upon this investigation, the officers sought and
obtained a search warrant for the Hood Street home.


       When officers executed the search warrant, they seized: cold tablets; lithium
batteries; fire extinguishers; an oxygen tank from which the valves had been removed
(which can be used to manufacture anhydrous ammonia); 1.5 grams of
methamphetamine; sandwich bags; glass jars; snorting tubes; a bottle of pure
ephedrine; a smoking pipe; coffee filters (hidden in the air ducts); cotton swabs; paint
thinner; windshield wiper fluid; .22 caliber ammunition; and a .22 caliber pistol. The
pistol was seized from the bedroom shared by Canania and Robinson. At the time of
the seizure, Robinson was asleep on the same bed where the pistol was found.
During the search, the officers also noticed that there was fire damage throughout the
basement.


      Despite the fact that many of the above listed items were seized from the
kitchen counters and from on top of the bed in their bedroom, Canania and Robinson
denied any knowledge of the items seized from their home. They suggested that
previous tenants must have left the items. Likewise, they denied any involvement in
causing the fire damage in the basement of the home.


       Approximately two months later, on February 17, 2004, law enforcement
officers observed Ronald Hartge purchase two boxes of cold medicine under
suspicious circumstances. They followed Hartge from the store, and he agreed to
cooperate with them when he realized they were following him. Hartge consented to
a search of his vehicle and his residence, and he admitted that he previously had
attempted to manufacture methamphetamine but was not successful. As part of his
agreement to cooperate with law enforcement, Hartge identified residences which he

                                          -3-
knew to have a connection to the sale or manufacture of methamphetamine. While
doing so, he pointed out the home of Canania and Robinson as a place
methamphetamine was manufactured or sold. Hartge agreed to be wired with a hidden
recording device and went to the home of Canania and Robinson. While at the home
and while being recorded, Hartge agreed to bring Canania and Robinson cold pills to
be used to manufacture methamphetamine. Hartge later returned to the residence and
delivered the requested cold pills to Canania and Robinson. Hartge also purchased
methamphetamine from Canania and Robinson. Officers then obtained and executed
a second search warrant for the Hood Street home of Canania and Robinson. During
the execution of the search warrant, the officers found and seized methamphetamine,
cold pills, and other substances used to manufacture methamphetamine. Canania and
Robinson denied any knowledge of these items, just as they had following the first
search.


       In January of 2006, Canania and Robinson were indicted for methamphetamine-
related offenses, and warrants were issued for their arrest. When officers attempted
to serve the arrest warrants, they discovered that Canania and Robinson no longer
lived at the Hood Street residence. In February of 2006, law enforcement officers
with the St. Louis County Multi-Jurisdictional Drug Task Force learned that Heather
Thompson, a confidential informant for another law enforcement agency, knew
Robinson and could deliver cold pills to him for use in the manufacture of
methamphetamine. By then, Robinson was again living at 2230 Hood Street.
However, he was sharing the residence with a man named Lee Westfall, not Canania.
On February 13, 2006, Thompson made a controlled delivery of cold tablets to the
2230 Hood Street residence while wearing a hidden recording device. Just prior to
Thompson’s entry into the residence, Robinson was observed entering the residence
with a briefcase. When Thompson entered the residence, Westfall indicated to
Thompson that Robinson was inside the house, but Thompson did not see Robinson.
Westfall gave Thompson a gram of methamphetamine in exchange for 10 boxes
containing 48 cold tablets in each box.

                                        -4-
       Immediately thereafter, a third search warrant was obtained and executed on the
home. Once again, methamphetamine, cold pills and other paraphernalia were seized
from the residence. Specifically, officers seized: a notepad containing a crude
formula for “ice,” which is the base form of methamphetamine; an unloaded shotgun
found beside the bed; a digital scale inside a wallet, along with coffee filters and one
of Robinson’s business cards; powder residue on the scale; the ten boxes of cold
tablets taken to the residence by Thompson just prior to the execution of the search
warrant; other cold tablets; empty cold pill boxes; a jar of blue pill binder; Heet; a
bottle of lye; 0.99 grams of methamphetamine packaged for sale in three plastic bags
which were located inside Robinson’s briefcase; iodine; camp fuel; an acid generator;
and a fire extinguisher. Additionally, the officers noted red stains in the basement
believed to be caused from the production of iodine crystals, which are necessary to
the manufacture of methamphetamine.


       Following their arrests, Canania and Robinson were indicted and tried for one
count of conspiracy to possess pseudoephedrine knowing it would be used to
manufacture methamphetamine, three counts of possession of pseudoephedrine
knowing it would be used to manufacture methamphetamine, and one count of
possession of a firearm in furtherance of a drug-trafficking offense. At trial, the
testimony of Friend, Hartge, and Westfall, as well as the evidence obtained during the
three searches was introduced. The jury convicted Canania and Robinson of one
count of conspiracy to possess pseudoephedrine knowing it would be used to
manufacture methamphetamine and two counts of possession of pseudoephedrine
knowing it would be used to manufacture methamphetamine. The jury acquitted the
pair of the firearms charge and of the third count of possession of pseudoephedrine
knowing it would be used to manufacture methamphetamine.


        Friend, Hartge, and Westfall, who had charges pending, were sentenced after
the trial of Canania and Robinson, but prior to the sentencing hearing of Canania and

                                          -5-
Robinson. On September 27, 2006, Hartge was sentenced to four years probation. On
November 15, 2006, Westfall was sentenced to 80 months in prison. On November
16, 2006, Friend was sentenced to four years probation.


       On December 14, 2006, the district court conducted the sentencing hearing of
Canania and Robinson. With regard to the Guideline range adopted by the district
court, Canania objected to the two-level firearm enhancement, the three-level role in
offense enhancement and the denial of the two-level reduction for acceptance of
responsibility. Her objections were overruled. Canania’s Guideline range was 262
to 327 months with a maximum statutory term of 60 years (720 months). Canania was
sentenced to 240 months imprisonment and three years of supervised release. The
district court sentenced Canania below the Guideline range, noting that it wanted to
avoid disparity between Canania and Robinson’s sentences, as well as giving
consideration to Canania’s history of being a victim of abuse and her long history of
drug addiction.


       The district court conducted Robinson’s sentencing hearing on the same date
and calculated Robinson’s Guidelines range to be 188 to 235 months imprisonment.
Robinson objected to the quantity of methamphetamine attributed to him and the two-
level enhancement for firearm possession. His objections were also overruled.
Robinson then sought a downward variance from the Guidelines range arguing that:
he and Canania manufactured the methamphetamine to feed their own addictions and
they made very little money; he was an otherwise law-abiding citizen who worked
hard as a carpenter; he was 59 years old; he had arthritis; and, due to his age and
arthritis, he would be particularly vulnerable to abuse in prison. The court declined
to sentence Robinson below the Guideline range and imposed a sentence of 220
months in prison and two years supervised release. From their sentences, Canania and
Robinson appeal.



                                         -6-
                                          II.


       On appeal, Canania argues that the district court erred in: (1) imposing a
two-level firearms enhancement pursuant to the 2005 United States Sentencing
Commission, Guidelines Manual, § 2D1.1(b)(1); (2) applying a three-level
enhancement for her supervisory role pursuant to USSG § 3B1.1(b); (3) denying
her request for a two level reduction for acceptance of responsibility pursuant to
USSG § 3E1.1(a); and (4) imposing an unreasonable sentence. Robinson argues
that the district court erred in the following ways: (1) imposing the two-level
firearm enhancement pursuant to USSG § 2D1.1(b)(1); (2) refusing to grant his
request for a downward variance because he was not given a leadership role
enhancement, resulting in an unreasonable sentence; (3) failing to properly weigh
the factors pertaining to the nature and circumstance of the offense in refusing to
grant his request for a downward variance, resulting in an unreasonable sentence;
and (4) failing to consider or give appropriate weight to relevant factors such as his
age, disability and disparity in sentence among co-conspirators in refusing to grant
his request for a downward variance, resulting in an unreasonable sentence.


                                         III.


       “We review a district court’s interpretation and application of the Guidelines
de novo and its factual findings regarding enhancements for clear error.” United States
v. Gillispie, 487 F.3d 1158, 1162 (8th Cir. 2007). See United States v. Gall, 128 S.
Ct. 586, 587 (2007) (improper calculation of Guidelines range is procedural error).


      We do not find that the trial court clearly erred in determining that the pistol
hidden in the bed shared by Canania and Robinson was connected to the drug offenses
of which they were convicted. If it is “not ‘clearly improbable that the [pistol] was
connected with the [drug offenses,]’” then the district court did not clearly err in

                                         -7-
giving the defendants the two-level increase in offense level pursuant to Guidelines
section 2D1.1. United States v. Bell, 477 F.3d 607, 614 (8th Cir. 2007); accord
United States v. Peroceski, No. 07-1336, 2008 WL 819082, at *3 (8th Cir. Mar. 28,
2008) (clarifying that government bears burden of proving defendant is subject to
sentencing enhancement by establishing it is not clearly improbable that firearm was
connected to drug offense). Firearms serve as the ‘tools of the drug trade’ by
‘providing protection and intimidation,’ therefore firearms and drug offenses are often
related and “result in reciprocal offense characteristic enhancements.” Id. at 615
(quoting United States v. Linson, 276 F.3d 1017, 1019 (8th Cir. 2002)). The
testimony established that the .22 caliber pistol was well within the reach of a person
lying in the bed and drug paraphernalia was scattered all over the bed at the time the
gun was seized. Both Canania and Robinson lived in the residence, slept in the bed
where the gun was located, and participated in the possession of the paraphernalia and
precursors, as well as the manufacture and sale of methamphetamine. Canania and
Robinson were both aware of the presence of the gun in the bedroom. Hence, they
were both in possession of the firearm.


       Robinson’s brother testified that he gave Robinson the gun several years before
it was seized in order for Robinson to “reblue” the gun. However, there were no
rebluing materials in the house, and a firearms expert testified that the gun did not
need to be reblued because the gun’s finish was in excellent condition. While it is
well settled that the “mere presence of a firearm cannot support the enhancement,” the
district court should apply the enhancement unless it is “clearly improbable that the
weapon was connected with the offense.” Gillispie, 487 F.3d at 1162 (citing USSG
§ 2D1.1, comment n. 3.).


      We cannot say that it was clearly improbable that the pistol in this case was
connected with the drug operation. This is especially true in light of the proximity of
the paraphernalia and drugs to the gun, the condition of the gun’s finish and the
absence of rebluing materials in the house. Much of the evidence of manufacture of

                                         -8-
methamphetamine was seized from the same room as the gun, and drugs and drug
paraphernalia were found on the very bed where the gun was located.
Methamphetamine manufacturing items found on the bed included: denatured
alcohol; pseudoephedrine pills; a glass vile containing powder; a box of “Bronch-eze,”
an ephedrine-like substance; a mason jar; a Pyrex dish with residue on it; a dish
containing a lithium battery; boxes of antihistamines and decongestants; syringes;
marijuana; the 599 pseudoephedrine pills delivered by Julie Friend; and another 479
pseudoephedrine pills. Next to the bed, officers found: a glass vile containing
methamphetamine; additional pseudoephedrine pills; a smoking pipe; cotton swabs;
paint thinner; and windshield wiper fluid.


       To determine that a gun was connected to the drug activity, the district court
may find a temporal and spatial relationship between the defendants, the criminal
activity, and the firearm. United States v. Newton, 184 F.3d 955, 958 (8th Cir. 1999).
The government established such a relationship between Canania and Robinson, their
drug activities, and the firearm located in their bedroom. We also note that the jury’s
acquittal of Canania and Robinson of the firearms charge does not preclude the district
court from applying the section 2D1.1(b)(1) two-level enhancement. United States
v. Eberspacher, 936 F.2d 387, 389 (8th Cir. 1991). We find that the trial court did not
err when it applied the Guidelines section 2D1.1 firearm enhancement to Canania and
Robinson.


                                         IV.


      Canania next argues that the district court erred in imposing a three-level
enhancement for her supervisory role in the conspiracy pursuant to section 3B1.1(b),
which provides that when a defendant “was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or more participants, or
was otherwise extensive,” the offense level should be increased by three levels.

                                         -9-
USSG § 3B1.1(b). We review the district court’s decision to apply an upward
adjustment in the offense level pursuant to USSG § 3B1.1 for clear error. United
States v. Mata-Peres, 478 F.3d 875, 877 (8th Cir. 2007).


       We cannot find that the district court clearly erred in determining that Canania
had a managerial or supervisory role in the conspiracy. Canania does not dispute that
the conspiracy involved more than five people. Further, Canania was the person who
ran the business aspect of the conspiracy, while Robinson was the “cook.” Canania
recruited the co-conspirators to obtain the cold pills and other items to be used to
manufacture the methamphetamine. She then continued to cultivate relationships with
the co-conspirators. Canania determined the amount of methamphetamine each co-
conspirator would receive in exchange for his or her procurement of cold pills and
other precursors. After she bargained with the co-conspirators, Canania then did all
the prep work on the cold pills to ready them for the final methamphetamine “cook”.


       While Canania tended to the business end of the operation during the day,
Robinson worked at his regular job as a carpenter. When Robinson arrived home
from work, Canania would give him the prepped pseudoephedrine pills and then
Robinson would take the prepped pills to another location to “cook” the
methamphetamine. When the “cook” was complete, Robinson returned to their home
with the final product. Canania then determined how much methamphetamine they
could keep for their own use, how much they would sell and how much was to be used
to pay the people who procured the cold pills for use in the manufacture of the
methamphetamine. Based on the evidence, the district court did not clearly err by
imposing the three-level enhancement to Canania’s offense level based on its finding
Canania played a managerial or supervisory role in this operation. See United States
v. Zimma, 299 F.3d 710, 724 (8th Cir. 2002) (Evidence suggested managerial or
supervisory role enhancement where defendant assisted in cooking methamphetamine,
directed procurement of significant amount of ephedrine pills, and taught others how
to set up methamphetamine lab).

                                         -10-
                                            V.


       Canania next argues that the district court erred in denying her request for a
two-level decrease in her offense level based on acceptance of responsibility pursuant
to Guidelines section 3E1.1. We review a denial of a reduction for acceptance of
responsibility for clear error on the part of the district court. United States v. Johnson,
474 F.3d 515, 521 (8th Cir. 2007). The burden was on Canania to show that she
“clearly demonstrated” acceptance of responsibility under section 3E1.1. United States
v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.), cert. denied, 128 S. Ct. 687 (2007). “The
Guidelines suggest several factors a district court may consider in deciding whether
to grant an acceptance of responsibility reduction including: (1) whether the
defendant truthfully admitted the conduct comprising [her] offense; (2) whether [s]he
voluntarily surrendered to authorities promptly after the commission of the offense;
and (3) the timeliness of [her] conduct manifesting acceptance of responsibility.”
Johnson, 474 F.3d at 521 (citing USSG § 3E1.1 comment. (n.1)).


        A district court’s factual determination of the defendant’s entitlement to an
offense level decrease for acceptance of responsibility is “entitled to great deference,
and we will reverse it only if it is so clearly erroneous as to be without foundation.”
Spurlock, 495 F.3d at 1014. The two-level decrease for acceptance of responsibility
is not intended to be applied when a defendant puts the United States to its burden of
proof at trial by denying the essential factual elements of guilt, then expresses remorse
upon conviction at jury trial. USSG § 3E1.1 comment. (n. 2). Canania argues that she
should have been given the two-level decrease because her attorney told the jury in
opening statements that the only charges she denied involvement in were the firearm
charge and witness tampering charge. Even a plea of guilty is no guarantee of a
reduction for acceptance of responsibility. See United States v. Miller, 951 F.2d 164,
165 (8th Cir. 1991) (guilty plea did not guarantee reduction for acceptance of
responsibility; district court properly denied reduction despite defendant’s professed
regret). At sentencing, the government submitted a written list to the district court

                                           -11-
that documented all the ways Canania tried to minimize or deny her involvement in
the offenses prior to her sentencing, all of which were disproved in the course of the
trial. Despite the fact that the drug paraphernalia was located on her kitchen
countertops, in her bedroom, and on top of her bed, Canania stated that she had no
idea where the drug paraphernalia in her home came from and suggested to law
enforcement that it must have been left there by previous tenants. The testimony of
co-conspirators was sufficient to establish that Canania was not only aware of the
presence of the drug paraphernalia in her home, she was running the
methamphetamine manufacturing operation and participating in the preparation of
cold pills for use in the manufacture of methamphetamine. Although she denied
involvement in all counts until her attorney conceded her involvement in the drug
charges at trial, it was only after her conviction that she admitted some of her illegal
conduct. We cannot say that the district court clearly erred in denying Canania a
reduction for acceptance of responsibility.


                                          VI.


       Canania and Robinson argue that their sentences were unreasonable for a
variety of reasons. We review the reasonableness of the district court’s sentences for
abuse of discretion. Gall, 128 S. Ct. at 597 (“Assuming that the district court’s
sentencing decision is procedurally sound, the appellate court should then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.”). The United States Supreme Court determined that the Guidelines are
advisory, United States v. Booker, 543 U.S. 220, 245 (2005), but should serve as the
“starting point” for the district court’s sentence. Kimbrough v. United States, 128 S.
Ct. 558, 574 (2007) (quoting Gall, 128 S. Ct. at 596). In reviewing the sentences of
Canania and Robinson, we determine whether the district court’s sentencing decision
was reasonable considering the totality of the circumstances. United States v.
Gillmore, 497 F.3d 853, 858 (8th Cir. 2007), cert. denied, 128 S. Ct. 921 (2008).


                                         -12-
Further, a sentence below or within the Guidelines range is presumptively reasonable
on appeal. Id.


       Canania argues that the 240 month sentence imposed upon her by the district
court was unreasonable in light of: (1) the sentences of her coconspirators and
codefendants; (2) her lack of prior criminal history; (3) her psychiatric problems; and
(4) the abuse she suffered as a child . However, we find no abuse of discretion in the
district court’s sentencing determination. The district court concluded that Canania’s
culpability and role in the offense was greater than that of Robinson, who received a
sentence within his Guidelines range, and Friend and Hartge, both of whom pled
guilty and cooperated with the government both during the investigation and at trial.
Further, the district court in fact did afford Canania a downward variance and
sentenced her to a below-Guidelines sentence, in an effort to somewhat equalize her
sentence with that of Robinson, whose culpability most closely resembled her own.
We find that the district court properly considered the section 3553(a) factors,
including: the nature and circumstances of the offense; the history and characteristics
of the defendant; and the need to avoid unwarranted sentencing disparities among
defendants with similar records and conduct.


       Robinson also argues that the district court imposed an unreasonable sentence
in his case and erred in refusing to grant a downward variance from his Guidelines
sentence. Robinson’s 220 month sentence was within the Guidelines range of 188 to
235 months imprisonment. Specifically, Robinson argues that because he was not
given a leadership role enhancement, the district court erred in considering his role as
a factor in denying his request for a downward variance. Such consideration fits
squarely within the 18 U.S.C. § 3553(a)(1) factor of “nature and circumstances of the
offense” and is appropriate. See United States v. Wills, 476 F.3d 103, 110 (2d Cir.
2007) (“18 U.S.C. § 3553(a)(1) provides a natural and necessary basis for placing the
actions of an individual defendant in the broader context of the crime he or she
committed [and] requires consideration of the ‘nature and circumstances of the

                                         -13-
offense’”). The district court stated that, because Robinson was not given an offense
level increase for his role in the offense, it would decline to grant a downward
variance from his Guidelines sentence. We cannot say that the district court abused
its discretion in making such a determination in applying the section 3553(a)(1) factor
of the nature and circumstances of the offense.


       Additionally, Robinson argues that the district court should not have considered
his drug addiction and the impact of his actions on other people in denying his request
for a downward variance. The evidence considered by the district court established
that: all the women associated with this case lost custody of their children as a result
of their involvement with methamphetamine; Robinson provided methamphetamine
to his coworkers prior to their departure to the job sites and throughout the work day,
resulting in a dangerous work environment; and a fire resulted in the basement of the
home he shared with Canania due to cooking methamphetamine. Although Robinson
argues that the record does not support his long use of drugs, his argument conflicts
with the admissions he made to the probation officer during his presentence report
interview. Robinson reported using marijuana at a young age and using
methamphetamine for several years prior to his arrest. We do not find that the district
court erred in considering the section 3553(a)(1) factors of Robinson’s history and
characteristics.


      Like Canania, Robinson also argues that the district court should have granted
a downward variance because of the sentences received by his codefendants and
coconspirators. However, Robinson overlooks the distinctions the district court noted
between his conduct and that of the cooperating witnesses who testified against him.
Friend and Hartge received probation after: providing information as confidential
informants; wearing hidden recording devices to assist the government in obtaining
evidence of criminal conduct; admitting their involvement very early on; and
providing substantial assistance by testifying at trial. “Disparity in sentences between
a defendant who provided substantial assistance and one who provided no assistance,

                                         -14-
. . . is not ‘unwarranted.’” United States v. Gallegos, 480 F.3d 856, 859 (8th Cir.
2007). Westfall only joined the conspiracy after the first two search warrants were
executed, but he did not act as a confidential informant. There is no evidence of his
involvement prior to the indictment of Canania and Robinson. Westfall received an
80 month sentence. Comparatively, Westfall was a minor participant in the
conspiracy. See United States v. Plaza, 471 F.3d 876, 880 (8th Cir. 2006) (district
court not required to impose identical sentences on both defendants when there is a
disparity in participation and history). Further, Canania, who was considered to have
a supervisory role, received a greater sentence than Robinson. Therefore, Robinson’s
argument that the district court failed to consider the section 3553(a)(6) factor of
unwarranted sentence disparities fails because the conduct and records of the
codefendants and coconspirators are not sufficiently similar to that of Robinson to
trigger a finding of an unreasonably disparate sentence. Id.


        Robinson also argues that he should be granted a downward variance based on
his age and disability. At sentencing, Robinson urged the district court to grant him
a downward variance from the Guidelines range of 188 to 235 months to a term of
imprisonment of 78 months. In support of his request for a downward variance,
Robinson argued the following factors: (1) he is 59 years old; (2) he has been a law-
abiding citizen for the past 35 years; (3) he was a hard worker with little education or
training; (4) he broke his back 25 years ago and has arthritis, but still works as a
carpenter and roofer; (5) his intelligence and mental condition; and (6) his
vulnerability in prison. When we review a defendant’s sentence to determine whether
it is unreasonable with regard to the application of 18 U.S.C. § 3553(a), we apply a
“deferential abuse-of-discretion standard.” Gall, 128 S. Ct. at 591. We give “due
deference” to the decision of the district court that the section 3553(a) factors justify
and support the degree of any variance from the Guidelines range. United States v.
Lehmann, 513 F.3d 805 (8th Cir. 2008) (citing Gall, 128 S. Ct. at 597)




                                          -15-
       The record does not establish that Robinson’s age, past or present physical or
psychological health, or his intelligence make him particularly vulnerable in a prison
environment. Robinson failed to establish that he suffered from any extraordinary
physical or mental impairment. Through the date of Robinson’s arrest, he was
actively engaged in physical labor through his work as a carpenter, and the evidence
does not establish a sudden decline in his physical abilities or mental health condition
after his arrest. Likewise, prior to his arrest, he was engaged in the chemical
manufacture of methamphetamine, which requires at least a basic understanding of
certain chemical reactions and belies his professed intellectual insufficiency. While
the facts would have supported an upward departure, the district court declined to
apply an upward departure for Robinson’s supervisory role as the “cook” of the
conspiracy. Indeed, the district court considered all the above factors, including its
leniency in declining to impose an upward departure, in denying Robinson’s request
for a downward variance. Based on the totality of the circumstances and the district
court’s stated justifications, we do not find that the district court abused its discretion
in denying Robinson’s request for a downward variance. See Lehmann, 513 F.3d at
808 (post Gall, we now examine substantive reasonableness of sentence by
considering “totality of the circumstances” and strength of stated justification,
reviewing district court’s decision for abuse of discretion).


                                           VII.


      Accordingly, we affirm the judgment of the district court.


BRIGHT, Circuit Judge, concurring.


      Bound by Supreme Court and Circuit precedent, I reluctantly concur with my
colleagues in affirming Canania’s and Robinson’s convictions and sentences. I write


                                           -16-
separately to express my strongly held view that the consideration of “acquitted
conduct” to enhance a defendant’s sentence is unconstitutional.


        In this case, the jury acquitted both Canania and Robinson of possessing a
firearm in furtherance of a drug-trafficking conviction. Nevertheless, at sentencing,
the district court judge enhanced both of their sentences pursuant to U.S.S.G. §
2D1.1(b)(1) for “possessing” a firearm in connection with a drug offense because it
was not “clearly improbable that the weapon was connected [to their] offense[s].”
United States v. Gillispie, 487 F.3d 1158, 1162 (8th Cir. 2007) (citing U.S.S.G. §
2D1.1(b)(1), cmt. n.3). And so, under the guise of “judicial discretion,” we have a
sentencing regime that allows the Government to try its case not once but twice. The
first time before a jury; the second before a judge.


        Before the jury, the Government must prove its case beyond a reasonable doubt.
But if it loses on some counts, that matters little. Free of the Federal Rules of
Evidence, most constitutionally-imposed procedures, and the burden of proving any
critical facts beyond a reasonable doubt, the Government gets the proverbial “second
bite at the apple” during sentencing to essentially retry those counts on which it lost.
With this second chance at success, the Government almost always wins by needing
only to prove its (lost) case to a judge by a preponderance of the evidence.
See McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (due process generally
satisfied when Government proves a sentencing enhancement by a preponderance of
the evidence). Permitting a judge to impose a sentence that reflects conduct the jury
expressly disavowed through a finding of ‘not guilty’ amounts to more than mere
second-guessing of the jury – it entirely trivializes its principal fact-finding function.
But no less significant, this judicial fact-finding deprives a defendant of adequate
notice as to his or her possible sentence. This state of affairs is unfair, unjust and I
believe plain unconstitutional. Though the Government might have “won” everyone
and everything else – the defendant, the jury system, the Constitution – loses.


                                          -17-
       In the last decade, the Supreme Court re-affirmed the jury’s central role in the
criminal justice system. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring
v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United
States v. Booker, 543 U.S. 220 (2005). Rather than pretending as if these cases were
never decided, we federal judges should acknowledge their clear implication: A judge
violates a defendant’s Sixth Amendment rights by making findings of fact that either
ignore or countermand those made by the jury and then relies on these factual findings
to enhance the defendant’s sentence. Cf. United States v. Mercado, 474 F.3d 654, 658
(9th Cir. 2007) (Fletcher, B., J., dissenting) (“Reliance on acquitted conduct in
sentencing diminishes the jury’s role and dramatically undermines the protections
enshrined in the Sixth Amendment.”); United States v. Faust, 456 F.3d 1342, 1349
(11th Cir. 2006) (Barkett, J., specially concurring) (“I strongly believe . . . that
sentence enhancements based on acquitted conduct are unconstitutional under the
Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment.”);
United States v. Ibanga, 454 F. Supp. 2d 532, 536 (E.D. Va. 2006) (Kelley, J.)
(“Sentencing a defendant to time in prison for a crime that the jury found he did not
commit is a Kafka-esque result.”) (footnote omitted), vacated by, 2008 U.S. App.
LEXIS 6980 (4th Cir. Apr. 1, 2008); United States v. Pimental, 367 F. Supp. 2d 143,
153 (D. Mass. 2005) (Gertner, J.) (“To tout the importance of the jury in deciding
facts, even traditional sentencing facts, and then to ignore the fruits of its efforts
makes no sense – as a matter of law or logic.”).


       I also believe that the use of “acquitted conduct” to enhance a sentence violates
the Due Process Clause of the Fifth Amendment. As I noted above, the consideration
of “acquitted conduct” undermines the notice requirement that is at the heart of any
criminal proceeding. A defendant should have fair notice to know the precise effect
a jury’s verdict will have on his punishment. It cannot possibly satisfy due process
to permit the nullification of a jury’s not guilty verdict, with respect to any given
charge, by allowing a judge to thereafter use the same conduct underlying that charge
to enhance a defendant’s sentence. It is not unreasonable for a defendant to expect

                                         -18-
that conduct underlying a charge of which he’s been acquitted to play no
determinative role in his sentencing. Otherwise, a defendant can never reasonably
know what his possible punishment will be. In determining guilt or innocence, the
jury thus serves not only as a fact-finder but as a means of providing a defendant with
notice as to his possible punishment. And a judge’s subsequent use of “acquitted
conduct” all but eviscerates this latter notice function.


       In short, the unfairness perpetuated by the use of “acquitted conduct” at
sentencing in federal district courts is uniquely malevolent. The rationale offered is
that judges who consider “acquitted conduct” at sentencing are doing so merely as part
of exercising their constitutionally-sanctioned sentencing discretion. But that
explanation merely obfuscates the reality in which federal district court judges are
often acting as automatons – mechanically enhancing sentences with “acquitted
conduct” pursuant to the now “advisory” Sentencing Guidelines.


       And so, in effect, the Guidelines, with respect to “acquitted conduct,” remain
very much mandatory. Neither the Fifth nor Sixth Amendments should tolerate such
a practice. But it is not this mechanical adherence to the Guidelines which makes
unconstitutional the use of “acquitted conduct” to enhance a defendant’s sentence.
That practice is best understood as an artifact of nearly twenty years of mandatory
sentencing guidelines. In my view, the Constitution forbids judges–Guidelines or no
Guidelines–from using “acquitted conduct” to enhance a defendant’s sentence because
it violates his or her due process right to notice and usurps the jury’s Sixth
Amendment fact-finding role.


       Because I believe the inclusion of “acquitted conduct” to fashion a sentence is
unconstitutional, I urge the Supreme Court to re-examine its continued use forthwith.
Absent its intervention, I fear the courts of appeals will again refuse to recognize the
full import of Apprendi and its progeny. Cf. Gall v. United States, 128 S. Ct. 586


                                         -19-
(2007) (reversing the court of appeals for failing to follow Booker’s command to give
significant deference to the sentencing decisions of district court judges).3 And as a
consequence, defendants will continue to receive unfair punishments for years to
come.


       The federal courts are just emerging from their experience with mandatory
Guidelines – a failed experiment – that for nearly twenty years resulted in an untold
number of defendants receiving excessive and unfair sentences, that we now know
were unconstitutional. By continuing to permit federal judges to consider “acquitted
conduct” at sentencing, we needlessly repeat our mistake of wrongly depriving
individuals of their freedom. I wonder what the man on the street might say about this
practice of allowing a prosecutor and judge to say that a jury verdict of ‘not guilty’ for
practical purposes may not mean a thing.4




      3
       I should note that the Sixth Circuit recently heard en banc arguments in United
States v. White (05-6596) on the constitutionality of enhancing sentences with
“acquitted conduct.”
      4
         What might the man on the street think? Recently, the Washington Times
reported that federal prosecutors have asked for a sentence of 40 years in the case of
Antwuan Ball (United States v. Antwuan Ball (05-CR-IOO(1)-RWR D.D.C.)), the
purported leader of a large criminal conspiracy in Washington, D.C., despite the fact
that a jury had acquitted him of every charge except a $600, half-ounce, hand-to-hand
crack cocaine deal seven years ago. See Jim McElhatton, A $600 drug deal, 40 years
in prison; Acquitted of murder, convicted of drug deal, Antwuan Ball faces a decades-
long sentence, W ASHINGTON T IMES , June 29, 2008 (available at:
http://www.washingtontimes.com/news/2008/jun/29/a-600-drug-deal-40-years-in-
prison/?page=1 (last accessed July 3, 2008)). The article notes that the prosecutors’
request is based “partly on charges that were never filed or conduct the jury either
rejected outright or was never asked to consider.” Id. After learning of the
prosecutors’ request, one of the jurors, a retired economist at the U.S. Department of
Agriculture, who had served about eight months on the Ball jury, wrote U.S. District
Judge Richard W. Roberts as follows:

                                          -20-
      It seems to me a tragedy that one is asked to serve on a jury, serves, but
      then finds their work may not be given the credit it deserves. We, the
      jury, all took our charge seriously. We virtually gave up our private
      lives to devote our time to the cause of justice, and it is a very noble
      cause as you know, sir. We looked across the table at one another in
      respect and in sympathy. We listened, we thought, we argued, we got
      mad and left the room, we broke, we rested that charge until tomorrow,
      we went on. Eventually, through every hour-long tape of a single drug
      sale, hundreds of pages of transcripts, ballistics evidence, and photos, we
      delivered to you our verdicts.

      What does it say to our contribution as jurors when we see our verdicts,
      in my personal view, not given their proper weight. It appears to me that
      these defendants are being sentenced not on the charges for which they
      have been found guilty but on the charges for which the District
      Attorney’s office would have liked them to have been found guilty. Had
      they shown us hard evidence, that might have been the outcome, but that
      was not the case. That is how you instructed your jury in this case to
      perform and for good reason.

May 16, 2008 Letter from Juror #6 to The Honorable Richard W. Roberts, available
at: http://video1.washintontimes.com/video/docs/letter.pdf (last accessed July 3,
2008).

And this was a comment from someone who was more than just the man on the street.

                                         -21-
