                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 03-1058
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Antonio Rodriguez,                      *
                                        *
           Appellant.                   *
      ___________
                                            Appeals from the United States
      No. 03-1316                           District Court for the
      ___________                           District of Nebraska.

United States of America,              *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Antonio Rodriguez,                     *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: October 20, 2003
                                Filed: July 11, 2005
                                 ___________

Before RILEY, BEAM, and SMITH, Circuit Judges.
                            ___________
SMITH, Circuit Judge.

       A jury found Antonio Rodriguez guilty of conspiring to distribute 500 grams
or more of methamphetamine and 500 grams or more of cocaine. The district court
denied two of Rodriguez's pretrial motions. Rodriguez objected under Apprendi v.
New Jersey, 530 U.S. 466 (2000), to the obstruction of justice enhancement in the
Presentence Investigation Report ("PSR"). During the sentencing phase of trial, the
district court granted Rodriguez's downward-departure motion and sentenced him to
262 months' imprisonment–followed by five years of supervised release. Rodriguez
appeals his conviction and sentence. The government cross-appeals the district court's
decision to depart downward. We affirm the conviction, but reverse and remand for
resentencing.

                                       I. Facts
       During late 2000 and early 2001, Rodriguez assisted local, state, and federal
drug enforcement authorities in Nebraska. However, in early fall of 2001, Rodriguez
himself became the subject of a drug investigation. After surveillance, and with the
aid of a confidential informant, state police arrested Rodriguez during a controlled
methamphetamine buy on August 6, 2001. Police searched Rodriguez's car and found
two ounces of methamphetamine. Investigator Richard Aldag prepared an affidavit
and obtained a search warrant for Rodriguez's motel room and obtained consent to
search from Rodriguez's female companion, Amanda Brejcha-Walenta, for her motel
room. The search uncovered marijuana and drug paraphernalia in Brejcha-Walenta's
room and methamphetamine, a scale, and drug paraphernalia from Rodriguez's room.

      On November 15, 2001, a grand jury indicted Rodriguez and Amanda Brejcha-
Walenta for conspiracy to distribute 500 grams or more of methamphetamine and 500
grams or more of cocaine. Rodriguez filed several pretrial motions, including a
motion to suppress and motion to dismiss and strike. A hearing was held on February
1, 2002, on the motion to suppress. In that motion, Rodriguez claimed Aldag's


                                         -2-
affidavit–offered in support of a warrant to search–stated knowingly false
information. The magistrate judge filed a "Report and Recommendation," which
found that Rodriguez had not made a sufficient showing to entitle him to a hearing
under Franks v. Delaware, 438 U.S. 154 (1978). The "Report and Recommendation"
concluded that, by omitting the challenged information, there still remained sufficient
information to support a finding of probable cause. The district court adopted the
magistrate's report and denied Rodriguez's suppression motion.

      Rodriguez also filed a motion to dismiss, claiming that the indictment should
be dismissed because of an inconsistency between information in the affidavit for
search warrant and the testimony of the affiant before the grand jury. The magistrate
judge concluded in a second "Report and Recommendation" that the inconsistencies
between the affidavit and the grand jury testimony were not material to the finding
of probable cause by the grand jury and therefore did not form the basis for dismissal
of the indictment. The magistrate's second "Report and Recommendation" was
adopted by the district court, and Rodriguez's motion to dismiss was denied.

       At trial Brejcha-Walenta, Jay Wills, Aaron Dixon, Fidel Martinez, Jose
Villalobos, and Nick Janes testified against Rodriguez. All of these individuals were
alleged co-conspirators with Rodriguez. Based upon their testimony, the jury
convicted Rodriguez. During the sentencing phase of trial the government objected
to the quantity of controlled substances attributed to Rodriguez contained in the PSR.
The government asserted that–based on Martinez's testimony–the quantities would
total more than fifteen kilograms of methamphetamine. Additionally, the government
offered testimony that Rodriguez possessed a firearm related to the drug-trafficking
offense for which he was convicted.

       Rodriguez also objected to the drug quantity, to the government's version of the
offense in the PSR, to the four-level enhancement imposed for his role in the offense,
to the two-level enhancement for obstruction of justice, and to the Criminal-History

                                         -3-
points assessed. Rodriguez also filed a motion for downward departure based upon
eight separate grounds. He also asserted Eighth Amendment violations. The court
overruled the drug-quantity objections and used Martinez's testimony to calculate the
amount attributable to the defendant and attributed ten kilograms of
methamphetamine and four pounds of cocaine to Rodriguez.1

      The court found that Rodriguez was an organizer or leader of a conspiracy
involving five or more individuals and as such a four-level increase was appropriate.
The court also found that Rodriguez obstructed justice by attempting to convince co-
conspirator Brejcha-Walenta not to talk to authorities. The court denied Rodriguez's
Eighth Amendment claims and the government's gun-enhancement motion.

      Finally, the court decided to depart downward from a total offense level of 42,
criminal history category II, with a sentencing range of 360 months to life, to a total
offense level of 38, with a range of 262 to 327 months. The court then sentenced the
defendant to 262 months' imprisonment followed by five years of supervised release.

      Of the numerous issues raised2 on appeal, we will address only the following:

      1
       As to the drug-quantity issue, the court used the low end of Martinez's
estimation in calculating the amount attributable to Rodriguez. This decision was
based on the court's expressed concern regarding the precision of Martinez's
testimony–that he spoke in general terms and was imprecise about the frequency with
which he provided methamphetamine to Rodriguez. However, the court expressed
confidence–based on Martinez's and other witnesses' testimony–that ten kilograms
of methamphetamine and four pounds of cocaine should be attributed to Rodriguez.

      2
        Rodriguez also raises these issues in his brief: whether the district court
misapplied role enhancement, or abridged Rodriguez's constitutional rights by
sentencing him to 262 months' imprisonment; whether the district court abused its
discretion in sustaining a relevance objection to a question posed to a government
witness during cross-examination or in denying admission of a video tape; whether,

                                         -4-
(1) Whether the district court erred in denying Rodriguez a Franks hearing and in its
finding that the indictment was valid; (2) Whether the district court properly denied
Rodriguez's motions to suppress evidence obtained from the hotel and vehicle
searches; (3) Whether there was sufficient evidence to support the conspiracy
conviction; (4) Whether the district court clearly erred in its drug-quantity
determination; (5) Whether the district court committed plain error in not ordering a
mistrial due to juror misconduct; (6) Whether the district court erred in its decision
to depart downward; and (7) Whether the district court violated Apprendi.

                                  II. Franks Hearing
       Rodriguez first argues that the district court erred in denying a hearing pursuant
to Franks, and in denying his motion to dismiss due to a defective indictment. A
refusal to hold a Franks hearing is reviewed for abuse of discretion. United States v.
Gabrio, 295 F.3d 880, 882 (8th Cir. 2002). We also utilize the abuse of discretion
standard when reviewing a ruling on a motion to dismiss an indictment due to false
testimony presented to a grand jury. United States v. Moore, 184 F.3d 790, 794 (8th
Cir. 1999).

      To support his claim that the district court abused its discretion, Rodriguez
notes that the search warrant affidavit contained false information regarding drug
quantity and the grand-jury testimony contained false information about drug type
and quantity. Specifically, Rodriguez alleges that Investigator Aldag lied to the grand
jury when he stated that on July 27, 2001, cocaine–instead of methamphetamine–was
purchased during an undercover buy. Rodriguez also brings to our attention




under the plain-error standard, there was selective, malicious, and vindictive
prosecution sufficient to warrant a new trial. Having carefully reviewed the record,
we find no error of law in the district court's disposition of these matters. Therefore,
the judgment is affirmed. See 8th Cir. R. 47B.

                                          -5-
inconsistencies in the reported quantity of methamphetamine recovered at the time
of his arrest.3

        The factual discrepancies between Investigator Aldag's affidavit and the
indictment noted by Rodriguez, without more, do not establish an abuse of discretion
on the part of the district court. Conclusory allegations of falsehood are insufficient
to make a substantial preliminary showing that a false statement was intentionally or
recklessly included in the affidavit. United States v. Mathison, 157 F.3d 541, 547–48
(8th Cir. 1998). The small quantum of difference in the amount and description
estimated in the warrant–and later corrected in the indictment–did nothing to diminish
the illegality of Rodriguez's alleged conduct. Rodriguez does nothing more than point
out minor descriptive inaccuracies–he has made no showing of intent or recklessness
on the part of Investigator Aldag. When no proof is offered that an affiant deliberately
lied or recklessly disregarded the truth, a Franks hearing is not required. United
States v. Moore, 129 F.3d 989, 992 (8th Cir. 1997), cert. denied, 523 U.S. 1067
(1998).

       More significantly, in order to establish a Franks violation, Rodriguez was
required to show that the remaining content of the affidavit was insufficient to
establish probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.
2001). The district court found the Aldag warrant affidavit sufficient–without the
alleged false information. On appeal, Rodriguez does not challenge the sufficiency
of the warrant without the false statement. We find no abuse of discretion in the
district court's decision to refuse Rodriguez a Franks hearing or in its decision to
deny Rodriguez's motion to dismiss.


      3
       The search warrant claimed that three ounces of methamphetamine were
recovered, the grand jury testimony indicated that two ounces were found, and the lab
report contained a total-weight calculation of 1.8 ounces for the recovered
methamphetamine.

                                          -6-
                                  III. Suppression
       Next, Rodriguez offers several arguments to support his claim that the district
court erred in its refusal to suppress tainted evidence–allegedly gathered without
proper constitutional authority. When considering the propriety of a denial of a
motion to suppress, we review the district court's historical factual findings for clear
error and its conclusions of law on the probable-cause issue de novo. United States
v. Wells, 223 F.3d 835 (8th Cir. 2000).

                                      A. Vehicle
       Rodriguez first claims that "there was no valid reason to conduct a search of
the rental vehicle in this case"–even as an inventory search– and "the search violated
the Fourth Amendment." He also contends that there was no probable cause for the
vehicle search as there was no "reasonable suspicion" of drug trafficking.

       After a careful review of the record, we are satisfied that the vehicle search was
proper. The search was completed after a confidential informant contacted Rodriguez
and arranged for a purchase of methamphetamine to take place at a specific time and
location. Officers were waiting at the designated location. The vehicle was identified
by the informant, and officers took both Rodriguez and the driver, Brejcha-Walenta,
into custody. The officer then conducted a search of the car.

       Under the automobile exception, if a law-enforcement officer has probable
cause, he may search an automobile without a warrant. Probable cause exists when,
given the totality of the circumstances, a reasonable person could believe that there
is a fair probability that contraband or evidence of a crime would be found in a
particular place. United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000).

      Here, probable cause was established by the following facts: (1) a buy was
scheduled and Rodriguez arrived as scheduled (right time, right place); (2) Rodriguez
was positively identified by the informant; (3) Rodriguez exchanged the "code" word

                                          -7-
with the informant. See United States v. Marchena-Borjas, 209 F.3d 698, 699–700
(8th Cir. 2000) (after suspected methamphetamine seller arrived at particular location,
at appointed time, driving a particular vehicle–all as previously described by
informant–officers had probable cause to search vehicle).4 Certainly, with these facts,
the officers reasonably believed that a fair probability existed that contraband or
evidence of a crime would be found in the automobile.

       As far as Rodriguez's claim that officers violated his Fourth Amendment rights
when they conducted an inventory search of his car, we frame the facts differently.
In our view, probable cause existed to search the entire vehicle, and a search pursuant
to the automobile exception to the Fourth Amendment may take place at a separate
place and time. United States v. Winters, 221 F.3d 1039, 1041 (8th Cir. 2000). We
affirm the district court's denial of the suppression motion.

                                   B. Motel Rooms
       Rodriguez further claims that the warrant to search his room was based on
evidence discovered in the "illegal" searches of his car, and thus anything recovered
in his room should be suppressed as "fruit of the poisonous tree." This argument is
without merit. As discussed supra, probable cause existed to search the vehicle, and
the evidence that was legally retrieved under the automobile exception was used to
support the warrant to search Rodriguez's motel room. The warrant, therefore, was not
tainted, and probable cause existed for the search.



      4
        Rodriguez attempts to distinguish Marchena-Borjas by arguing that, here,
the informant had not seen Rodriguez with contraband; could not describe the type
of vehicle that would be driven; and that the informant was not reliable. Rodriguez
argues that because the conversations were in Spanish, the officers could not
understand–or rely on–the informant. We, however, are unpersuaded by the
distinctions noted by Rodriguez. The essential facts of Marchena-Borjas are similar,
and relevant, to Rodriguez's claim.

                                         -8-
       Rodriguez also argues that the search of room #521–in which Brejcha-Walenta
was residing–was invalid. He claims that because he registered for the room, paid for
the room, and could have excluded Brejcha-Walenta from the room (if he desired to
move back into the room), he was in "complete control" of the room. Rodriguez
further argues that the fact that an airline ticket bearing his name was found in the
room also establishes his control of the room.

       Assuming, without concluding, that Rodriguez had standing5 to challenge this
search, we note that Brejcha-Walenta–a person with authority over the
property–consented to the search of the room. "The Fourth Amendment's general
prohibition against warrantless searches does not apply when officers obtain
voluntary consent from the person whose property is searched or from a third party
with common authority over the property." See Illinois v. Rodriguez, 497 U.S. 177,
181 (1990). The consent of one who possesses common authority over premises or
effects is valid as against the absent, nonconsenting person with whom that authority
is shared. United States v. Matlock, 415 U.S. 164, 170 (1974); United States v.
Esparza, 162 F.3d 978, 980 (8th Cir. 1998).

       Brejcha-Walenta gave consent–a factual finding of the district court that is not
clearly erroneous–to search the motel room. She was the only person currently living
in the room, thereby possessing at least common authority over the room. Thus, the
search was valid. Accordingly, the district court properly rejected Rodriguez's motion
to suppress the evidence recovered from room #521.

                                 C. Arrest Warrant

      5
       We do not reach the question of Rodriguez's standing to challenge the
search of room #521. Based on Rodriguez's admission that Brejcha-Walenta lived in
the room, the magistrate judge found standing did not exist. However, the district
court considered the merits of the issue and approached the claim using a consent
analysis.

                                         -9-
       Rodriguez also contends that the officers had no probable cause to arrest and
detain him for this crime. This claim is predicated on Rodriguez's prior argument
regarding the incorrect drug-quantity amount contained in the search warrant
affidavit. He suggests that although there was a warrant for his arrest, the warrant was
not valid because it was premised upon false information. As discussed above, we are
not persuaded by this argument and find sufficient probable cause to support
Rodriguez's arrest.

                                   IV. Sufficiency
      Rodriguez also challenges the sufficiency of the evidence to support his
conviction. Specifically, he claims that the government failed to prove (1) that there
was an illegal agreement; (2) that Rodriguez knew about the agreement; and (3) that
Rodriguez knowingly became a part of the alleged conspiracy. He points out that
mere association or acquaintance cannot establish a conspiracy nor does mere
presence at the scene of a crime prove conspiracy. United States v. Hernandez, 986
F.2d 234, 236 (8th Cir. 1993).

       In a sufficiency review, the evidence is viewed in the light most favorable to
the verdict, and all reasonable inferences supporting the verdict are accepted as
established. A conviction will be reversed only if no reasonable jury could have
convicted the defendant. United States v. Leonos-Marquez, 323 F.3d 679, 681 (8th
Cir. 2003).

      In order to sustain a conviction, the government was first required to
prove–beyond a reasonable doubt–that Rodriguez agreed or conspired to distribute
drugs. It is sufficient to prove that the conspiracy consisted of a tacit or implicit
understanding–it is not required that the conspiracy be explicit or expressed. Id. at
682. However, the government's proof must establish some degree of cooperation by
Rodriguez, beyond mere knowledge of the existence of the agreement. Id.



                                         -10-
       Viewing the facts in the light most favorable to the government, and giving it
the benefit of all reasonable inferences, the evidence is sufficient to sustain the jury's
verdict. Rodriguez's supplier, Fidel Martinez, testified that he supplied Rodriguez
methamphetamine and cocaine from at least January 2001 to July 2001. And,
according to Martinez, the drug quantity–of both methamphetamine and
cocaine–supplied to Rodriguez was in excess of 500 grams. Rodriguez vigorously
attacks Martinez's credibility. However, credibility is a determination for the trier-of-
fact, and its assessment is virtually unassailable on appeal. United States v.
Hernandez, 187 F.3d 806, 809 (8th Cir. 1999).

        Several other individuals involved in Rodriguez's drug-distribution chain also
testified against him–including Dixon, Janes, Brejcha-Walenta and Wills. Their
testimony, if believed, provided sufficient evidence to support the jury's finding that
Rodriguez was guilty of conspiracy to distribute 500 grams or more of
methamphetamine and cocaine.

                                   V. Drug Quantity
       Rodriguez next challenges the quantity of drugs attributed to him. We review
a district court's drug-quantity finding (for sentencing purposes) using a clear error
standard. United States v. Causor-Serrato, 234 F.3d 384, 389 (8th Cir. 2000). In
conspiracy cases, the quantity of drugs to be attributed to the defendant includes those
which were a part of acts committed by the defendant, aided and abetted or caused by
him, as well as the reasonably foreseeable acts of others that were in furtherance of
the jointly-undertaken criminal activities. See U.S.S.G. § 1B1.3(a)(1). Actions are
reasonably foreseeable to a defendant when they fall within the scope of the
agreement between the defendant and the coconspirators. United States v. Jones, 965
F.2d 1507, 1517 (8th Cir. 1992). This also includes actions that occur while the
defendant is incarcerated. United States v. Casares-Cardenas, 14 F.3d 1283, 1288
(1994).



                                          -11-
      In its finding that Rodriguez should be held responsible for 500 grams or more
of methamphetamine and cocaine, the district court said:

      Based on the testimony of all the witnesses as to the amount of
      methamphetamine and cocaine, the Court is confident that ten kilograms
      of methamphetamine and four pounds of cocaine should be attributed to
      the defendant, but no more than that.

The district court further concluded "that the testimony of Fidel Martinez should be
used in calculating the amount attributable to the defendant." Martinez estimated that
he distributed, in toto, between ten and fifteen kilograms of methamphetamine to
Rodriguez. He also testified that he distributed approximately four pounds of cocaine
to Rodriguez. This testimony was corroborated by Brejcha-Walenta. She testified that
she saw Martinez deliver pound quantities of methamphetamine to Rodriguez. She
also testified that on several occasions–under Rodriguez's direction–she picked up
pound quantities of methamphetamine from Martinez. She also stated that she sold
methamphetamine–for Rodriguez–in quantities of up to a half pound. In addition to
the testimony of Martinez and Brejcha-Walenta, Dixon and Wills testified regarding
drug quantities received from Rodriguez. The quantities presented by Dixon alone
exceeded one pound of methamphetamine.6 Wills also testified to amounts of
methamphetamine in excess of one pound.

      Because there is overwhelming evidence to support the district court's finding
that Rodriguez's methamphetamine drug quantity exceeded 500 grams, we affirm.

                              VI. Juror Misconduct
      Rodriguez's next argument centers on juror misconduct stemming from a
member of the jury asking a question–during a recess–of a government witness.
Rodriguez fashions his claim as a violation of the Sixth Amendment's guarantee that

      6
       One pound of methamphetamine equals 453.59 grams.

                                        -12-
every defendant receive a trial by an impartial jury. He did not raise this issue below,
thus the allegation of error is reviewed for plain error. Fed. R. Crim. P. 52(b); United
States v. Williams, 545 F.2d 47, 51 (8th Cir. 1976).

       A juror approached Trooper Caladori, a government witness and a canine
officer, and asked him about the availability of dog presentations for a school. When
placed under oath and asked about the encounter, Trooper Caladori testified that he
did not initiate the conversation. In response to her inquiry, he provided the
appropriate contact number to the juror and ended all further contact. Trooper
Caladori confirmed that no aspect of Rodriguez's trial was discussed during the
exchange. Following these remarks, Rodriguez's counsel agreed that an
admonishment to the jury provided a sufficient remedy for the witness-juror
communication. And as agreed, the judge admonished the jury. However, Rodriguez
now contends the court should have gone further and should have dismissed the juror
or declared a mistrial.

      Extrajudicial communication during trial between a prosecution witness and
a juror is presumptively prejudicial subject to being rebutted by the government.
Remmer v. United States, 347 U.S. 227, 229 (1954); United States v. Williams, 545
F.2d 47, 51–52 (8th Cir. 1976). However, the presumption of prejudice does not
apply unless the extrinsic contact relates to factual evidence not developed at trial.
United States v. Hall, 85 F.3d 367, 371 (8th Cir. 1996).

       Rodriguez did not request a mistrial, nor did he ask for the juror to be
dismissed. The communication did not involve facts related to the trial, and the steps
taken by the court were those requested by Rodriguez and reasonable under the
circumstances. Rodriguez has made no showing of prejudice. As such, the district
court's failure to dismiss the juror or declare a mistrial did not violate Rodriguez's
Sixth Amendment right to receive a trial by an impartial jury.



                                         -13-
                              VII. Downward Departure
       In its cross-appeal, the government contends that the district court erred in
reducing Rodriguez's total Offense Level from 42 to 38. We review a district court's
departure from the Guidelines de novo. The Protect Act, Pub. L. No. 108–21, 117
Stat. 650 (2003); United States v. Aguilar-Lopez, 329 F.3d 960, 963 (8th Cir. 2003).

      The district court based its departure decision on three factors: (1) Rodriguez's
criminal history; (2) Martinez's ambiguous testimony as to drug quantity; (3)
Rodriguez's age. The court considered Rodriguez's prior offenses less serious than the
pending drug-conspiracy offense. The court also stated its preference to give
Rodriguez the benefit of the lower range of witness Martinez's estimate of drug
quantities supplied to Rodriguez. Finally, the court considered that at age thirty one,
Rodriguez would spend the bulk of his remaining productive years in prison and
could take advantage of self-improvement opportunities in prison.

       At the outset, we note that the district court erred in considering criminal
history as a part of a § 5K2.0 departure–as opposed to a separate § 4A1.3 departure.
The district court departed from an Offense Level of 42 (Criminal History Category
II), with a sentence ranging from 360 months to life in prison–to an Offense Level of
38 (Criminal History Category II), with a range of 262 to 327 months. This departure
was based–in part–on the court's finding that Rodriguez's criminal history was over-
represented.7 The court noted that this offense was Rodriguez's first felony.

     With an Offense Level of 42, Rodriguez's sentence cannot be less than 360
months whether he be classed in Criminal History Category I or II. The sentencing

      7
       Rodriguez's criminal-history calculation was based upon two misdemeanor
convictions. One involved an assault offense and the other involved a concealed-
weapons charge. The latter conviction was committed during the time Rodriguez was
actively involved in the current conspiracy. Further, his criminal history score of three
points was at the top of the range for category II.

                                          -14-
range for Offense Level 42, Criminal History Category I, is also 360 months to life
in prison. In other words, a departure below 360 months on criminal-history grounds
is error. See United States v. Blackbird Sheridan, 270 F.3d 669, 673 (8th Cir. 2001)
(A departure below the lower limit of the Guidelines range for Criminal History
Category I on the basis of the adequacy of criminal history cannot be appropriate
because this category is set for a first-time offender). However, the district court's
departure was not entirely based on an over-representation of criminal history.

      Thus, we must determine whether the district court's other bases for departure
are sufficient to take the case out of the "heartland"8 and support a downward
departure. In reviewing a departure based on multiple factors, we must consider
whether a potential factor is already taken into account or specifically discouraged
by the Guidelines. Koon v. United States, 518 U.S. 81, 96 (1996). To determine
whether a circumstance was adequately taken into consideration by the Commission,
Congress instructed courts to consider only the Sentencing Guidelines, policy
statements, and official commentary of the Sentencing Commission. Koon, 518 U.S.
at 92–93.

       Cases outside of the "heartland" of the Guidelines should be "extremely rare."
U.S.S.G. § 5K2.0 commentary. If a factor is unmentioned in the Guidelines, the court
must, after considering the structure and theory of both relevant individual Guidelines
and the Guidelines taken as a whole, decide whether it is sufficient to take the case
out of the Guideline's heartland. Koon, 518 U.S. at 96. Thus, our charge is to
determine if Rodriguez's "conduct significantly differs from the norm" to such a
degree that departure is warranted. United States v. Roberts, 313 F.3d 1050, 1053 (8th
Cir. 2003).

      8
        In the absence of the characteristic or circumstance that distinguishes a case
as sufficiently atypical to warrant a sentence different than that called for under the
Guidelines, a sentence outside the Guideline range is not authorized. See 18 U.S.C.
§ 3553(b).

                                         -15-
       In support of its decision to depart downward, the district court considered the
attributable drug quantity as a relevant factor–however, testimony regarding drug
quantity is covered specifically under the Guidelines in the determination of the
offense level, in this case under U.S.S.G. § 2D1.1(a)(3). The court was also concerned
about the credibility of Martinez's drug-quantity testimony. As a result of this
concern, the court held Rodriguez responsible for the lower end of Martinez's
estimation. The lower-end number was also used by the court to establish quantity to
support the charged offense, which in our view amounts to a finding that the amount
was credible.

       The district court also departed, in part, due to the defendant's age. Rodriguez
is a thirty-one year old male. Although a downward departure based on age is
permissible, it is so only if the factor is present in an exceptional degree or in some
other way makes the case different from the ordinary case where the factor is present.
United States v. Hildebrand, 152 F.3d 756 (8th Cir. 1998) (finding departure based
on age appropriate for a seventy-year-old with life-threatening health conditions).
Unfortunately, a thirty-year-old male facing a lengthy prison sentence for conspiracy
to distribute a large quantity of drugs is not extraordinary in our legal system.

       Finally, another factor considered by the sentencing court in support of
departure was the possibility of Rodriguez's future rehabilitation. The court
optimistically suggested that the departure would encourage Rodriguez's participation
in programs offered by the Bureau of Prisons and that "if he decides to make a
genuine effort to obtain an education and to receive vocational training by this
downward departure, this will give him some opportunity that he would be able to use
those things to his benefit after his release." The Guidelines consider rehabilitation
efforts as relevant indicia as to whether a defendant has accepted responsibility. See
U.S.S.G. § 3E1.1 cmt. n.1(g). However, because the Guidelines already account for
rehabilitation under § 3E1.1, a departure can be granted only if there are rehabilitative

                                          -16-
efforts "'exceptional enough to be atypical of cases in which the acceptance of
responsibility reduction is usually granted.'" United States v. Roberts, 313 F.3d 1050,
1054 (8th Cir. 2003) (quoting United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir.
1997)).

       In the present case, Rodriguez was not granted a reduction for acceptance of
responsibility. We see no exceptional circumstance presented by Rodriguez's
rehabilitation prospects. At least no circumstance so exceptional as to justify a
downward departure from the Guidelines. Furthermore, when all of the factors used
to support the sentencing court's decision to departure are examined individually, the
resulting impact does not rise to the level of "extremely rare." In fact, the "aggregate
[comes] to no more than a sum of its insufficient parts." United States v. Roberts, 313
F.3d 1050, 1056 (8th Cir. 2003).

                                     VIII. Apprendi
       Rodriguez raised an Apprendi objection to the PSR. Consequently, Rodriguez
has preserved a valid claim under United States v. Booker, 125 S. Ct. 738 (2005); see
also United States v. Pirani, No. 03-2871, slip op., 6 (8th Cir. Apr. 29, 2005). The
district court overruled all of Rodriguez's Guideline objections and in doing so treated
the Guidelines as mandatory. At sentencing, the court found facts and denied
Rodriguez's objection. In doing so the court erred. We therefore remand to the district
court to review the enhancements under an advisory Guideline scheme. Id. at 757.

      Accordingly, we reverse and remand for resentencing consistent with this
opinion.
                    ______________________________




                                         -17-
