                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
              ____________________________________________

             Nos. 99-2206EA, 99-3128EA, 99-3358EA, 99-3674EA,
                      99-3803EA, 99-4194EA, 00-1135EA
             ____________________________________________

      _____________                   *
                                      *
      No. 99-2206EA                   *
      _____________                   *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
                                      *
Debra Nicholson,                      *   On Appeal from the United
                                      *   States District Court
            Appellant,                *   for the Eastern District
                                      *   of Arkansas.
      _____________                   *
                                      *
      No. 99-3128EA                   *
      _____________                   *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
                                      *
Rodney Dewayne Floyd,                 *
                                      *
            Appellant,                *
                                   *
                                   *
      _____________                *
                                   *
      No. 99-3358EA                *
      _____________                *
                                   *
United States of America,          *
                                   *
            Appellee,              *
                                   *
      v.                           *
                                   *
                                   *
Donald R. Miller, also known as    *
Donnie Miller,                     *    On Appeal from the United
                                   *    States District Court
            Appellant,             *    for the Eastern District
                                   *    of Arkansas.
      _____________                *
                                   *
      No. 99-3674EA                *
      _____________                *
                                   *
United States of America,          *
                                   *
            Appellee,              *
                                   *
      v.                           *
                                   *
                                   *
Frankie Webb,                      *
                                   *
            Appellant,             *
                                   *




                                  -2-
      _____________          *
                             *
      No. 99-3803EA          *
      _____________          *
                             *
United States of America,    *
                             *
            Appellee,        *
                             *
      v.                     *
                             *
                             *
Marcus Deshun Sanders,       *
                             *
            Appellant,       *    On Appeal from the United
                             *    States District Court
      _____________          *    for the Eastern District
                             *    of Arkansas.
      No. 99-4194EA          *
      _____________          *
                             *
United States of America,    *
                             *
            Appellee,        *
                             *
      v.                     *
                             *
                             *
Maurice Jerome McDonald,     *
                             *
            Appellant,       *
                             *




                            -3-
      _____________                        *
                                           *
      No. 00-1135EA                        *
      _____________                        *
                                           *
United States of America,                  *
                                           *    On Appeal from the United
             Appellee,                     *    States District Court
                                           *    for the Eastern District
      v.                                   *    of Arkansas.
                                           *
                                           *
Jamo Jenkins, also known as                *
Jaymo Jenkins,                             *
                                           *
             Appellant.                    *

                                    ___________

                            Submitted: September 13, 2000
                                Filed: November 1, 2000
                                    ___________

Before RICHARD S. ARNOLD, LAY, and FAGG, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       The following defendants were convicted of the following offenses for their
involvement in an Arkansas drug conspiracy: Debra Nicholson, of conspiracy to
launder money in violation of 18 U.S.C. § 1956; Rodney Dewayne Floyd, of
conspiracy to distribute controlled substances, 21 U.S.C. § 846, and of unlawful use
of a telephone to facilitate a drug transaction, 21 U.S.C. § 843(b); Donald R. Miller,
of aiding and abetting the distribution of cocaine base, 21 U.S.C. § 841; Frankie Webb,
of possessing cocaine base with the intent to distribute, 21 U.S.C. § 841, and of

                                          -4-
possessing a firearm during a drug offense, 18 U.S.C. § 924(c)(1); Maurice Jerome
McDonald, of conspiracy to distribute controlled substances, 21 U.S.C. § 846, of two
counts of distributing cocaine base, 21 U.S.C. § 841, and of being a felon in possession
of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2); Jamo Jenkins, of conspiracy to
distribute controlled substances, 21 U.S.C. § 846, and of possessing cocaine base with
the intent to distribute, 21 U.S.C. § 841; and Marcus Sanders, of conspiracy to
distribute controlled substances, 21 U.S.C. § 846.

        On appeal, these seven defendants raise various issues. Ms. Nicholson claims
that the District Court erred in not accepting the government's recommendation of
probation. Mr. Floyd argues that the evidence against him did not warrant a conspiracy
conviction, disputes his classification as a career offender, and appeals from the denial
of a motion to exclude evidence. Mr. McDonald and Mr. Jenkins, among other things,
challenge their sentences under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Mr.
Miller raises a sufficiency-of-the-evidence argument and appeals from the denial of a
sentence reduction. Mr. Sanders questions the calculation of his criminal history score,
and Mr. Webb attacks the sentencing disparity between offenses involving crack and
those involving powder cocaine. We hold that Apprendi requires the resentencing of
defendants McDonald (except for the life sentence for crack distribution) and Jenkins.
In all other respects, we affirm the judgments of the District Court.

                                           I.

       Defendant Debra Nicholson appeals from the District Court's denial of a motion
for reconsideration of her sentence. She contends that she should have been given
probation, as her lawyer requested and the government recommended, instead of fifteen
months' imprisonment followed by three years of supervised release. We affirm.

      On the basis of the facts stated in her presentence report, adopted in full by the
Court below and not challenged on appeal, Ms. Nicholson was liable under the

                                           -5-
Sentencing Guidelines to be imprisoned for anywhere from three years and one month
to three years and ten months. In accordance with Ms. Nicholson's Plea Agreement,
however, and in exchange for her service as a government witness, the United States
filed a motion under U.S.S.G. § 5K1.1 recommending probation.

       At Ms. Nicholson's sentencing hearing, her attorney requested that she receive
probation rather than imprisonment because of her status as a single mother. The
District Judge first noted that Ms. Nicholson had twice previously received probation.
He then asked Ms. Nicholson's pretrial officer, Mr. McAuley, how she had performed
in pretrial and presentencing release:

      MR. MCAULEY: Judge, she has been supervised in California, and
                   simply put, she's done horrible.

      THE COURT:          Like how? Don't make broad, conclusory statements.
                          Does she – has she ever missed any of her
                          appointments?

      MR. MCAULEY: She's missed numerous appointments.

      THE COURT:          What do you call "numerous"?

      MR. MCAULEY: She's missed at least 16 appointments.

      THE COURT:          What?

      MR. MCAULEY: Yes, Your Honor.

      THE COURT:          You've got to be kidding me. Sixteen? I don't think
                          I've ever had anybody that missed 16.

      MR. MCAULEY: According to the probation officer up there in
                   California, they have not had anyone else that has
                   been that noncompliant under their supervision.


                                         -6-
Sentencing Tr. at 13. A chronological record of Ms. Nicholson's interactions with the
United States Pretrial Services Office for the Central District of California was
admitted without objection.

       The Court then turned to the government's request for a downward departure
from the sentencing range based on Ms. Nicholson's assistance to the prosecution.
After determining the extent of that assistance, the Court had the following exchange
with Mr. Harris, the Assistant United States Attorney:

      THE COURT:          What sort of a downward departure do you request?

      MR. HARRIS:         Judge, in the plea agreement we signed, I agreed if
                          she provided substantial assistance and I filed a
                          motion, I would ask the Court for probation, and I'm
                          going to stick by my agreement.

      THE COURT:          What does the knowledge of her pretrial conduct,
                          what effect does that have?

      MR. HARRIS:         If I didn't have this plea agreement, I wouldn't make
                          the recommendation of probation.

      THE COURT:          Thank you.


Sentencing Tr. at 16.

        Ms. Nicholson claims that the conversation just quoted amounts to a breach of
her plea agreement under United States v. Mitchell, 136 F.3d 1192, 1994 (8th Cir.
1998). In Mitchell, the government undercut its own motion for downward departure
by suggesting at the sentencing hearing that the defendant had already been rewarded
at the indictment phase and by introducing damaging statements from the victims of the
defendant's crime. At Ms. Nicholson's hearing, by contrast, Mr. Harris merely gave a


                                         -7-
candid response to a question from the Court. This was not improper. We have said
that the government, after making a motion for downward departure pursuant to a plea
agreement, may "advise the sentencing court if there are unrelated factors . . . that in
the government's view should preclude or severely restrict any downward departure
relief." United States v. Anzalone, 148 F.3d 940, 942 (8th Cir. 1998). Here, Mr.
Harris did not go even that far.

      Ms. Nicholson points out that at the time of her plea agreement, she had already
missed eleven Pretrial Services appointments. She argues that the United States
Attorney's failure to raise the issue at that time led her to believe that those absences
would not affect the sentence she would receive. She does not, however, direct us to
any evidence that the United States Attorney (as opposed to the Pretrial Services
Office) actually knew of her delinquency when the plea agreement was struck. We find
no such evidence in the record. Moreover, the Court was authorized to find that Ms.
Nicholson missed five drug screens even after the date of her plea agreement.

        Ms. Nicholson asserts, however, that the District Court actually considered the
missed appointments that occurred before the plea bargain. Even if she is right, we see
no error. We know of no law that says a court must ignore relevant evidence at a
sentencing hearing simply because that evidence may relate to conduct that preceded
a defendant's plea agreement. Whether to approve or reject a plea agreement is a
matter confided to the sound discretion of the trial court, United States v. Petty, 600
F.2d 713, 714 (8th Cir. 1979) (per curiam), and the defendant here can point to no
abuse of discretion. Ms. Nicholson actually received a downward departure of more
than 50 per cent. off the bottom end of her sentencing range in spite of conduct on
pretrial release that the District Court described as "awfully near contemptuous."
Courts are not required to ignore such conduct at sentencing. Ms. Nicholson's sentence
is affirmed.




                                           -8-
                                           II.

         Mr. Floyd raises several arguments on appeal. First, he claims that he was
entitled to a directed verdict of acquittal on the conspiracy charge. This argument is
without merit. There was testimony that Mr. Floyd bought a kilogram of cocaine from
co-conspirator Ricky Rogers for $25,000, Tr. 770-71, that he repeatedly bought nine-
ounce quantities of crack from co-conspirator Clinton Lewis at about $700 per ounce,
Tr. 439-40, 431, and that people who buy crack in that quantity are typically reselling
it, Tr. 431. Moreover, the government introduced tapes of two telephone conversations
in which Mr. Floyd discussed drug transactions with members of the conspiracy. Ex.
24-27, 24-51; Tr. 1357, 1406-07. This evidence, if the jury believed it, would support
a conviction for conspiracy to distribute controlled substances.

       Second, Mr. Floyd contends that the District Court erred in classing him as a
career offender under U.S.S.G. § 4B1.1. He argues that one of the two prior felony
convictions on which that categorization was based occurred during the course of the
present conspiracy and therefore should not count toward career-offender status. We
find no error. Mr. Floyd was convicted of the relevant state offense in February, 1997.
Neither side has presented any evidence that he was involved in the present conspiracy
earlier than August, 1997. The jury's general verdict implicating him in a conspiracy
that began in 1994 does not prove when his own involvement began. We affirm the
District Court's finding that Mr. Floyd was a career offender.

       Mr. Floyd also argues that the District Court erred in denying his motion to
exclude wiretap evidence. The judge who issued the wiretap order allowed the
government to wait until indictment before giving the statutorily required notice to non-
targeted persons whose telephone calls were intercepted under the order. Mr. Floyd
asserts that this was illegal on various grounds. We do not decide that question,
because even if he is right, he has not shown – or even argued – that the postponement
of notice caused him any actual harm. See United States v. Davis, 882 F.2d 1334,

                                           -9-
1344 (8th Cir. 1989) (government's failure to give notice under 18 U.S.C. § 2518(8)(d)
did not warrant suppression of evidence where defendant was not prejudiced by it),
cert. denied, 494 U.S. 1027 (1990).

       Mr. Floyd also objects to a jury instruction and claims that the District Court
erred in defining "cocaine base" for the jury. These arguments are wholly without merit
and do not warrant discussion.

                                         III.

        Mr. McDonald appeals from the denial of two motions: one to limit testimony
pursuant to Fed. R. Evid. 403, and one challenging the sufficiency of the evidence at
trial to establish the offenses for which he was indicted. We affirm these decisions of
the Court below. We agree with Mr. McDonald, however, that Apprendi requires that
his sentence be vacated.

       Mr. McDonald's evidentiary motion sought to limit testimony concerning his
possession of a firearm in connection with his drug offense. The police arrested Mr.
McDonald during a raid on his home. They found him sitting on his bed in the dark,
holding a .45-caliber pistol, which they shot from his hand. At trial, Mr. McDonald's
counsel moved to restrict the officers' testimony to the fact that Mr. McDonald was
seen holding a firearm at the time the warrant was served. He argued that any
testimony to the effect that he had threatened the officers with the weapon would be
irrelevant; alternatively, he claimed that its relevance would be outweighed by its
prejudicial effect. See Fed. R. Evid. 403.

      Mr. McDonald opened the door to the witness box by refusing to stipulate to his
possession of the firearm. Of course he had a right to refuse. In doing so, however,
he decided to let the issue be tried upon the officers' testimony, and he cannot now



                                         -10-
object to the fact that they gave a full and continuous narrative rather than merely
reciting the content of the rejected stipulation.

      A syllogism is not a story, and a naked proposition in a courtroom may be
      no match for the robust evidence that would be used to prove it. People
      who hear a story interrupted by gaps of abstraction may be puzzled at the
      missing chapters, and jurors asked to rest a momentous decision on the
      story's truth can feel put upon at being asked to take responsibility
      knowing that more could be said than they have heard.


Old Chief v. United States, 519 U.S. 172, 189 (1997). The Court's denial of Mr.
McDonald's evidentiary motion was not an abuse of discretion. See United States v.
Rabins, 63 F.3d 721 (8th Cir. 1995) (standard of review).

       Mr. McDonald next argues that the District Court erred in denying his motion
for acquittal, which was based on an alleged variance between the indictment and the
evidence at trial. According to Mr. McDonald, the evidence failed to reveal a complete
"wheel conspiracy": specifically, he claims that, although many defendants along the
"spokes" of the wheel demonstrably conspired in drug activity with "hub" defendant
Steven Miller, substantial evidence does not connect each of the "spoke" defendants
with the others. Such a claim warrants a reversal "if the evidence does not support the
single conspiracy and the defendant was prejudiced by the variance between the
indictment and the proof." United States v. Pullman, 187 F.3d 816, 821 (1999), cert.
denied, 120 S. Ct. 802 (2000).

     Even if other defendants at the periphery were unaware of each other's activities,
however, substantial evidence places Mr. McDonald in the thick of things. Steven
Miller, who is Mr. McDonald's cousin, testified that Mr. McDonald and William
Wadlington were among his main distributors. Tr. 292, 297-98. Clinton Lewis
corroborated that statement. Tr. 435. There was testimony that numerous other
defendants were introduced to Miller by McDonald or to McDonald by Miller. Tr.

                                         -11-
213, 654, 797. Sharon Wrobleski testified that, using plane tickets provided by Miller,
she and another defendant picked up drugs in California and delivered them to
Wadlington at Mr. McDonald's house. Tr. 660-61. Norman Miller testified that he
delivered large quantities of cocaine and marijuana to Mr. McDonald for Steven Miller.
Tr. 633-35, 640. Giving the jury's verdict the benefit of all reasonable inferences from
the facts, United States v. McCarthy, 97 F.3d 1562, 1570 (8th Cir. 1996), we cannot
say that Mr. McDonald has suffered an "unwarranted imputation of guilt from others'
conduct," Kotteakos v. United States, 328 U.S. 750, 777 (1946). In short, even
assuming that the evidence at trial failed to establish that there was only one
conspiracy, Mr. McDonald has not shown that this variance was prejudicial to him.

       Mr. McDonald's final issue on appeal relates to his sentence. The jury returned
general verdicts convicting him of conspiracy to distribute controlled substances, of two
counts of crack-cocaine distribution, and of being a felon in possession of a firearm.
The indictment did not specify the amount of drugs involved in the conspiracy, nor did
the jury make any express finding of quantity as to that count. On these facts, the
sentence Mr. McDonald could receive for his conspiracy conviction is limited to 20
years. See 21 U.S.C. § 841(b)(1)(C), 21 U.S.C. § 846. Moreover, the government
concedes that one of the charged instances of distribution actually involved 15 pounds
of marijuana, not 15 ounces of crack as alleged in Count 46 of the indictment. The
maximum sentence for distributing 15 pounds of marijuana is five years. 21 U.S.C.
§ 841(d). The other distribution charge involved two ounces of crack, for which the
statutory sentencing range is ten years to life. 21 U.S.C. § 841(b)(1)(A).

      The trial court found by a preponderance of the evidence that Mr. McDonald
was connected with more than 150 kilograms of cocaine. Given that quantity and type
of drug, the Court arrived at a base offense level of 38. That level went up to 43 after
adjustments for possession of a firearm and for a supervisory role in the offense. An
offense level of 43 mandates a life sentence. Apprendi was decided after the District
Court imposed the sentences in this case. Indeed, Apprendi was decided after Mr.

                                          -12-
McDonald's appellate brief had been filed. The case, however, does apply to the
present appeal. The government has raised no procedural impediments to our
considering the issue, and, in any event, a new rule of constitutional criminal procedure
is normally applied retroactively to all cases pending on direct review. Griffith v.
Kentucky, 479 U.S. 314, 328 (1987); Powell v. Nevada, 511 U.S. 79, 80 (1994).

       We have no doubt that Apprendi does require resentencing on the conspiracy
count and on one of the distribution counts. As we have noted, the statutory maximum
for conspiracy, where the jury makes no finding of quantity, is 20 years, and the
statutory maximum for distributing 15 pounds of marijuana is five years. The sentences
on those two counts, then, need to be modified accordingly. As to the other distribution
charge, however, the one involving two ounces of crack, the statutory sentencing range
is 10 years to life. The Court was authorized to make findings by a preponderance of
the evidence in order to apply the Guidelines. The offense level of 43, which is not
claimed to be erroneous, mandates a life sentence for this offense. This is true
whatever happens to the other counts. At the oral argument, the Court discussed with
counsel the possibility of remanding for resentencing on all counts, but we do not see
that there is any need for a remand for reconsideration of the life sentence on the crack-
distribution count. That sentence stands on its own even after full consideration of the
Apprendi issue, and we see no benefit that Mr. McDonald could receive from a
remand. Accordingly, the life sentence on the conspiracy and marijuana-distribution
counts is vacated and remanded for resentencing. The life sentence on the crack-
distribution count is affirmed.

        Mr. McDonald also received a 20-year sentence for being a felon in possession
of a firearm, a violation of 18 U.S.C. § 922(g)(1). The statutory maximum sentence for
that offense is ten years, not twenty as stated in the presentence report and in the
District Court's sentencing order. 18 U.S.C. § 924(a)(2). Mr. McDonald's sentence
on this count must therefore be vacated and redetermined along with the others.



                                          -13-
                                          IV.

       Before considering Mr. Jenkins's arguments on the merits, we must determine
whether we have jurisdiction of his case. Shortly after the District Court entered a
judgment in Mr. Jenkins's case, he filed a motion that we construe as a motion to set
aside his sentence under 28 U.S.C. § 2255. The District Court ruled on that motion
some months later, after which point Mr. Jenkins filed a notice of appeal. The notice
of appeal was filed within the 60-day time period prescribed in Rule 11 of the Rules
Governing Section 2255 Proceedings. Although Mr. Jenkins neglected to appeal his
conviction directly, we properly have jurisdiction over the instant appeal from his
§ 2255 motion. This does not preclude our applying Apprendi,1 because Mr. Jenkins
has not previously collaterally attacked his sentence. Cf. Rodgers v. United States, 229
F.3d 704, 706 (8th Cir. 2000) (Apprendi does not apply retroactively to a second or
successive § 2255 motion).

       Mr. Jenkins argues that both his conviction and his sentence were illegal. We
begin with his conviction. Contrary to Mr. Jenkins's position, the evidence at trial did
authorize the jury to conclude that he conspired to distribute cocaine and marijuana.
There was testimony that he bought cocaine and marijuana for resale from co-
defendants Clinton Lewis, William Wadlington, and Maurice McDonald, Tr. 438, 441-
42, 1576-77, and that he introduced co-defendant Ricky Rogers to McDonald, Tr. 762.
The government introduced numerous tapes of drug-related telephone calls between
William Wadlington and someone whom Lewis, having heard the tapes, identified as
Mr. Jenkins. Tr. 1582-1585. Clinton Lewis was a party to one of these calls. Tr.



      1
       The United States did not contend, either on brief or at the oral argument, that
Mr. Jenkins's Apprendi argument was not cognizable in a § 2255 petition. In particular,
the government did not, at that time, argue that the Apprendi point would be barred by
Teague v. Lane, 489 U.S. 288 (1989). Whether an Apprendi argument is Teague-
barred thus remains an open question in this Circuit.
                                         -14-
1585. This evidence would support the inference that Mr. Jenkins conspired with these
people to distribute drugs.

       There was also sufficient evidence to uphold the jury's general verdict that Mr.
Jenkins violated 21 U.S.C. § 841(a) by possessing a controlled substance with the
intent to distribute. The jury heard a taped telephone conversation in which a person
identified as Mr. Jenkins discussed a recent drug purchase with William Wadlington.
Clinton Lewis, whom the Court allowed to interpret the slang-filled conversation for
the jury, testified that Wadlington and Jenkins were discussing a purchase of nine
ounces of cocaine. Tr. 1583. He also said that the language of the conversation would
have been consistent with a purchase of nine ounces of marijuana. Tr. 1586-88. For
purposes of the general verdict, it does not matter which substance the jury believed
Mr. Jenkins possessed.

       For sentencing, however, it matters a great deal. The jury was instructed that it
could find that Mr. Jenkins violated § 841(a) even if it found "that the controlled
substance distributed was not cocaine base, but another controlled substance, either
cocaine, marijuana, or PCP."2 Tr. 2066. We cannot rule out the possibility that the
jury followed this instruction and convicted Mr. Jenkins on a finding of marijuana
distribution even though his indictment alleged cocaine base. Mr. Jenkins's conspiracy
conviction suffers from the same ambiguity. Assuming that the jury based both of its
guilty verdicts upon a finding that Mr. Jenkins conspired to possess, did possess, and
intended to distribute nine ounces of marijuana, he would be subject to a maximum
sentence of five years on each count. See 21 U.S.C. §§ 841(b)(1)(D), 846.

       Mr. Jenkins is entitled to that assumption. We held in United States v. Nattier
that, where a jury renders a general verdict that may rest on any of several alternative


      2
       This instruction was correct, notwithstanding Mr. Jenkins's argument to the
contrary.
                                         -15-
factual findings, the court "should sentence the defendant on the alternative that yields
a lower sentencing range." 127 F.3d 655, 661 (1997). Under the Supreme Court's
decision in Edwards v. United States, Nattier no longer applies to cases where the
verdict's ambiguity affects only the judge's application of the Sentencing Guidelines
within the limits provided by statute. See 523 U.S. 511, 513-14 (1998). But Edwards
does not affect a case where different statutory maximums might apply. See Edwards,
523 U.S. at 515 (limiting holding to sentences that do not exceed statutory maximum);
Apprendi, 120 S. Ct. at 2366 n.21 (distinguishing Edwards). As to a case such as that
– and Mr. Jenkins has one – Nattier is still good law.

       The District Court in the present case rightly noted that the rule in Nattier had
an exception where the evidence supported a specific finding beyond a reasonable
doubt. For example, in Nattier itself, the defendant's unambiguous conviction for
money laundering justified sentencing him for conspiracy to commit money laundering,
despite the ambiguity of the jury's general verdict on his conspiracy count. 127 F.3d
at 661. In Mr. Jenkins's case, however, the jury made no such unambiguous finding.
Instead the District Judge decided, on the strength of the evidence, that the jury must
have accepted Mr. Jenkins's connection with over 1.5 kilograms of crack, and on that
basis he applied the statutory sentencing range appropriate to that kind and quantum
of drugs. Sentencing Tr. at 16. We disagree with this analysis. To the extent that the
Nattier exception authorized a judge, rather than a jury, to find the facts that determine
a defendant's statutory maximum penalty, it does not survive Apprendi. "The judge's
role in sentencing is constrained at its outer limits by the facts alleged in the indictment
and found by the jury. Put simply, facts that expose a defendant to a punishment
greater than that otherwise legally prescribed were [for the Sixth Amendment's framers]
by definition 'elements' of a separate legal offense." Apprendi, 120 S. Ct. at 2359 n.10.

       Mr. Jenkins's case must be, and is, remanded for resentencing. On remand, his
sentence of imprisonment must fall within the statutory maximum of five years for each
of his convictions.

                                           -16-
                                           V.

      The remaining defendants may be considered together.

       Mr. Miller raises a sufficiency-of-the-evidence argument regarding his conviction
for aiding and abetting the distribution of cocaine base. He admits, however, that he
telephoned his brother, Tommy Miller, in order to help Calvin Woodruff arrange a
crack purchase. The jury was presented with six tape recordings of conversations
between Mr. Miller and his brother regarding the transaction, Ex. 25-81, 25-83, 25-85,
25-86, 25-87, 25-91; Tr. 602-608, and three tapes of conversations between Mr. Miller
and Mr. Woodruff, Ex. 25-80, 25-84, 25-82; Tr. 616-620. Mr. Miller's argument
appears to be that he was not present at the actual sale. But even if he wasn't, the jury
could have found that he aided and abetted it. See United States v. Atkins, 473 F.2d
308 (government had a submissible case for aiding and abetting against defendant who
arranged but was not present at transaction), cert. denied, 412 U.S. 931 (1973).
Mr. Miller also argues that his minimal involvement justifies a downward departure
from his sentencing range. The District Court considered exercising its discretion to
grant a downward departure but declined to do so. We cannot review that decision.
United States v. Shaw, 162 F.3d 1166 (table), 1998 WL 480182 (8th Cir. 1998) (per
curiam).

       Mr. Sanders claims that the District Court erroneously calculated his criminal
history category by adding two points for each of three state felony convictions.
According to Mr. Sanders, the three convictions should have been counted as one under
U.S.S.G. § 4A1.2(a)(2), because they were informally consolidated for sentencing.
Where prior convictions are sentenced under separate docket numbers, and there is no
formal order of consolidation, the convictions are counted separately for purposes of
§ 4A1.2(a)(2). United States v. Townsend, 94 F.3d 649 (table), 1996 WL 457956 (8th
Cir. 1996) (per curiam).

                                          -17-
      Mr. Webb argues that the sentencing disparity between offenses involving crack
and those involving powder cocaine violates the Due Process and Equal Protection
clauses of the 14th Amendment. This Circuit has already considered and rejected that
argument. United States v. Buckner, 894 F.2d 975 (8th Cir. 1990).

                                        VI.

       For the reasons stated above, the sentences of Mr. McDonald for conspiracy,
marijuana distribution, and being a felon in possession of a firearm are vacated, and
these sentences are remanded for reconsideration. Mr. McDonald's life sentence for
crack distribution is affirmed. Mr. Jenkins's sentences are vacated and remanded with
directions as stated above. The convictions and sentences of the remaining defendants
are affirmed.

      A true copy.

             Attest:

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




                                        -18-
