                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 07-2631
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       Northern District of Iowa.
Anthony Charles Saddler, Jr.,              *
                                           *
             Appellant.                    *

                                 ________________

                             Submitted: March 12, 2008
                                 Filed: August 13, 2008
                                ________________

Before RILEY, GRUENDER and SHEPHERD, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Anthony Charles Saddler, Jr., was convicted after a jury trial on all five counts
of a superceding indictment, which charged various narcotics distribution and firearms
offenses. The district court1 sentenced Saddler to 322 months’ imprisonment. Saddler
now appeals both his convictions and his sentence, arguing that insufficient evidence
supported his drug and firearm conspiracy convictions and his firearm possession
conviction, that the district court improperly presumed the advisory sentencing

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
guidelines range was reasonable and erred in considering the 18 U.S.C. § 3553(a)
factors, and that the sentence violated his Sixth Amendment rights. We affirm
Saddler’s convictions and sentence.

I.    BACKGROUND

      On February 26, 2006, officers of the Waterloo Police Department executed a
search warrant at the residences at 630 West Mullan Avenue, 3853 Paige Drive and
112 Hartman Street, all in Waterloo, Iowa. The residences on West Mullan Avenue
and on Hartman Street were within 1000 feet of a playground. Saddler, his cousin
Marlon Earsery, Eddie Wade and Quintez Lotiker lived at the West Mullan Avenue
residence. Saddler’s girlfriend lived at the Paige Drive residence, and Courtney Buls,
Earsery’s girlfriend, rented the Hartman Street residence.

        The search of the Hartman Street residence revealed significant quantities of
crack cocaine, powder cocaine and marijuana. In the basement, officers discovered
a locked safe, which contained $21,514.42 in cash, 122.56 grams of powder cocaine,
65.42 grams of crack cocaine, jewelry and documents. The documents included a title
to Saddler’s red Chevrolet Blazer, a purchase agreement for the Blazer, an application
for title and registration for the Blazer, and a traffic ticket issued to Saddler. Near the
safe, officers found titles in Saddler’s name for a 1996 Chevrolet Tahoe and a 1994
GMC Suburban, 701.8 grams of marijuana and 80.26 grams of cocaine. In the
basement rafters, officers recovered a laptop case that contained six pistols: a loaded
.45 caliber Hi-Point with an obliterated serial number, a loaded 9mm Taurus, two
loaded 9mm Bryco Jennings, a 9mm Luger, and a .22 caliber Sterling Arms.
Throughout the rest of the house, the police seized 2212 grams of marijuana, 597.74
grams of powder cocaine, 217.1 grams of crack cocaine, baggies for packaging and
a scale.




                                           -2-
        During the search of the 630 West Mullan Avenue residence, officers seized
$1099.30 in cash, drug paraphernalia, certified mail addressed to Saddler and license
plates issued to him. In the shed behind the house, the police found 13.2 grams of
marijuana hidden behind some tires. Saddler’s Blazer was located outside the
residence. Finally, at the Paige Drive residence, officers found Saddler inside with his
girlfriend, $1369 in cash and 4.3 grams of marijuana that Saddler admitted belonged
to him.

       The grand jury indicted Saddler on five counts. Saddler pleaded not guilty and
proceeded to a jury trial. The jury returned a guilty verdict against Saddler on all five
counts: (1) conspiracy to distribute fifty grams or more of cocaine base within 1000
feet of a playground and to distribute cocaine and marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), (b)(1)(C), (b)(1)(D), 846, and 860; (2) possession with the
intent to distribute cocaine within 1000 feet of a playground, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 860; (3) possession with the intent to distribute fifty
grams or more of cocaine base within 1000 feet of a playground, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 860; (4) possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (5)
conspiracy to use or carry a firearm during and in relation to a drug trafficking crime
and to possess a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(o).

      At trial, Earsery testified for the Government pursuant to a cooperation
agreement. Earsery testified that he and Everette Richardson originally came to
Waterloo in February 2003 for the purpose of making money by selling drugs. They
lived with Richardson’s mother. Jessie Davis moved in with them by the summer of
2003. Earsery, Richardson and Davis then moved to 1112 Langley Road and lived
with Buls and another woman. At these residences, Earsery, Richardson and Davis
made and sold crack cocaine. Earsery also went to Chicago once a month to obtain
controlled substances from his source.

                                          -3-
      Earsery indicated that Saddler moved from Chicago to Waterloo in January
2005. By fall of that year, Earsery, Saddler, Rodell Leaks, Latiker and Wade all lived
at 1264 West Mullan Avenue. They sold crack cocaine out of the 1264 West Mullan
Avenue residence, and they shared customers. Eventually, Earsery, Saddler, Latiker
and Wade moved to 630 West Mullan Avenue. Earsery testified that he, Saddler,
Latiker, Wade, Leaks and Richardson all sold crack cocaine out of the 630 West
Mullan Avenue residence. They again shared customers and gave each other drugs
when needed for a sale.

        Earsery, Richardson, Saddler, Latiker, Wade and Isaac Jackson all had access
to the basement at the Hartman Street residence to store and retrieve their belongings.
Although Earsery had stored the laptop case with the six guns in the basement, he
testified that Saddler, Latiker, Wade, Leaks and Jackson also had access to the guns,
which he referred to as “house guns” that anyone in the house could use. Earsery also
testified that he had observed Saddler with firearms before and that Saddler preferred
one of the 9mm Bryco Jennings pistols.

       Jessie Davis also testified for the Government pursuant to a cooperation
agreement. Davis stated that he, Earsery and Saddler had the same source for cocaine
in Chicago. He indicated that a member of their group would go to Chicago to pick
up cocaine two to three times a month and that he and Saddler had traveled to Chicago
together once or twice to purchase cocaine from their source. Davis also saw Saddler
in possession of three of the firearms, including one of the 9mm Bryco Jennings
pistols, at different times when they sat out in front of the 1264 West Mullan Avenue
residence and stated that he, Earsery and Saddler “would probably be the main ones
strapped, ready, whatever.”

       Finally, Buls testified that both Earsery and Saddler had keys to the Hartman
Street residence because they kept drugs and money at the house and that Saddler was
the main person to use the basement. Although she never saw anyone sell drugs out

                                         -4-
of the Hartman Street residence, she did see Saddler, Earsery, Wade and Latiker with
drugs at this location. Specifically, she observed Saddler weighing crack cocaine on
a scale in the kitchen.

       At the close of the evidence, Saddler moved for judgment of acquittal, arguing
that the evidence was insufficient to establish any agreement to distribute drugs or to
possess or use firearms, a necessary element of both conspiracy charges. The district
court denied Saddler’s motion. In submitting the case to the jury, the district court
instructed the jury that “crack cocaine and a mixture or substance containing a
detectable amount of cocaine base refer to the same substance.” During deliberations,
the jury asked the district court for “a clarification on the differences between ‘crack’
cocaine and cocaine.” The district court instructed the jury to recall the evidence.
Subsequently, the jury returned a guilty verdict against Saddler on all counts.

       At sentencing, the district court determined that Saddler’s base offense level for
the drug conspiracy and possession convictions was 37 based on the quantity of crack
cocaine, cocaine and marijuana involved in the drug conspiracy and a one-level
increase for drug sales within 1000 feet of a protected location pursuant to the United
States Sentencing Guidelines § 2D1.2(a)(2). The district court also imposed a two-
level upward adjustment pursuant to U.S.S.G. § 2D1.1(b)(1) because a dangerous
weapon was possessed. As for the firearm conspiracy conviction, the district court
determined that it was closely related to drug conspiracy and possession convictions
and grouped them together under the same adjusted offense level. Therefore,
Saddler’s advisory sentencing guidelines range for the drug convictions and firearm
conspiracy convictions, based on a total offense level of 39 and a criminal history
category of I, was 262 to 327 months’ imprisonment. On the firearm possession
conviction, 18 U.S.C. § 924(c)(1)(A)(i) required a mandatory consecutive 60-month
sentence.




                                          -5-
       Saddler requested a downward departure, arguing that he was a minimal
participant in the conspiracy, lacked a criminal history, and suffered from Bell’s palsy.
The district court stated:

      I am aware that I have the power to depart whenever a case falls outside
      the Heartland of cases. And this one does not.

      The Court finds that there is nothing unusual about this case that has not
      already been figured into the computation of the advisory guidelines.

      For example, . . . the fact that Defendant had no criminal history has
      been taken into consideration in the computation of the advisory
      guidelines sentence, and, therefore, the Court could not use that as a
      basis for a departure even if I wanted to.

      There is nothing in the record here that, in my opinion, argues for a role
      in the offense. Whether it’s argued as a departure or an adjustment to the
      adjusted offense level, the Court finds that Defendant had not met his
      burden to prove a minor role in the offense.

      As far as his medical condition, Bell’s palsy, there’s nothing that
      suggests that the defendant’s condition could not be handled in the
      Bureau of Prisons and treated there.

      He will suffer no adverse consequences that are any more substantial
      than any other prisoner by virtue of having this condition.

      So the Court, recognizing its power to depart downward, declines to do
      so and states that were the Court to depart downward, it would run afoul
      of the statutory factors at 18 United States Code Section 3553(a).

Sentencing Tr. at 12-13. The district court then considered the § 3553(a) factors and
sentenced Saddler to 262 months’ imprisonment with a consecutive 60-month term,
for a total sentence of 322 months’ imprisonment.



                                          -6-
II.   DISCUSSION

      A.     Sufficiency of the Evidence

       Saddler argues that the district court erred by denying his motion for judgment
of acquittal because there was insufficient evidence to support the drug conspiracy,
firearm possession and firearm conspiracy convictions. We have recently summarized
the standard of review for such arguments:

      We review de novo a district court’s denial of a motion for judgment of
      acquittal. We view the evidence in the light most favorable to the jury’s
      verdict and we draw all reasonable inferences in the government’s
      favor[.] We will uphold the verdict if there is any interpretation of the
      evidence that could lead a reasonable-minded jury to find the defendant
      guilty beyond a reasonable doubt. Both direct and circumstantial
      evidence can be the basis of a conviction. Furthermore, we must not
      weigh the evidence or assess the credibility of witnesses.

United States v. Garcia-Hernadez, 530 F.3d 657, 661 (8th Cir. 2008) (internal
quotations and citations omitted) (alteration omitted).

             1.     Drug Conspiracy

       “To establish that a defendant conspired to distribute drugs under 21 U.S.C. §
846, the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.” Id. (quoting United States v. Rolon-
Ramos, 502 F.3d 750, 754 (8th Cir. 2007)). “An agreement to join a conspiracy need
not be explicit but may be inferred from the facts and circumstances of the case.” Id.
(quoting United States v. Rodriguez-Mendez, 336 F.3d 692, 695 (8th Cir. 2003)).



                                          -7-
       Saddler argues that the Government failed to present evidence showing an
agreement between him and Earsery, Davis, Leaks, Latiker, Wade, Richardson or
Jackson to distribute crack cocaine, cocaine and marijuana. Rather, Saddler suggests
that they each worked separately selling drugs out of the same houses. However, after
reviewing the evidence presented to the jury, we conclude that the district court did
not err by denying Saddler’s motion for judgment of acquittal with respect to his drug
conspiracy conviction.

        Davis testified that he, Earsery and Saddler had the same source for controlled
substances in Chicago and that he and Saddler traveled to Chicago together to obtain
cocaine from their source and transported the cocaine back to Waterloo. Earsery
testified that all of the residents, including Saddler, sold crack cocaine out of the 1264
West Mullan Avenue and the 630 West Mullan Avenue residences. Earsery indicated
that they shared customers and provided each other drugs when needed to complete
a sale. Two of Saddler’s customers testified that they purchased drugs not only from
Saddler but also from others at the 630 West Mullan Avenue residence.

       Additionally, the evidence presented to the jury ties Saddler to the 112 Hartman
Street residence, where police seized large quantities of marijuana, cocaine, crack
cocaine, money, packaging materials and a scale. See United States v. Mendoza-
Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004) (holding that a jury could reasonably
infer that a conspiracy existed where evidence showed it was unlikely that the
defendant grew, processed, packaged and loaded large quantities of drugs without
assistance or that the drugs were for personal use). Earsery testified that Saddler,
along with Richardson, Latiker, Wade and Jackson, had access to the basement at the
Hartman residence to store and retrieve their belongings. In fact, Saddler’s personal
documents were also located in the basement of the Hartman Street residence near
large quantities of drugs. Buls testified that Saddler had a key to the residence and
was the main person to use the basement. She had also observed Saddler in the
kitchen weighing crack cocaine on the scale. Because the alleged co-conspirators had

                                           -8-
the same source and traveled together to obtain drugs from that source, possessed
large quantities of drugs, had a common storage area and unfettered access to it, and
shared customers and drugs, a jury could reasonably infer that Saddler entered into an
agreement with Earsery, Davis, Leaks, Latiker, Wade, Richardson or Jackson to
distribute drugs.

      Saddler challenges the testimony of Earsery, Davis and Buls because these
individuals were testifying in an attempt to avoid or reduce their own criminal
sentence. However, our role is not to assess the credibility of the witnesses. See
Garcia-Hernandez, 530 F.3d at 662. Rather, the jury assessed the witnesses’
credibility and reasonably determined that Saddler was part of a crack cocaine,
cocaine, and marijuana distribution conspiracy.

             2.     Firearm Possession and Conspiracy Convictions

       The district court also did not err in denying Saddler’s motion for judgment of
acquittal with respect to his firearm possession conviction. “To establish that a
defendant possessed a firearm in violation of § 924(c), the Government must prove
that (1) he committed a drug trafficking crime, and (2) he possessed a firearm in
furtherance of that crime.” Id. (internal quotation omitted). Because we have already
held that sufficient evidence supported Saddler’s drug distribution conspiracy
conviction and because Saddler does not challenge his possession with intent to
distribute cocaine and cocaine base convictions, we turn to the second element,
whether sufficient evidence supports the jury’s conclusion that Saddler possessed a
firearm in furtherance of that conspiracy.

       “Possession may be actual or constructive and need not be exclusive.” United
States v. Williams, 512 F.3d 1040, 1044 (8th Cir. 2008), cert. denied, --- U.S. ---, 128
S. Ct. 2918 (June 9, 2008). “Proof of constructive possession requires evidence that
a defendant knowingly has the power and intention to exercise control over the

                                          -9-
firearm . . . .” Id. Such possession may be established by showing the defendant had
dominion over the premises where the firearm is kept. United States v. Tindall, 455
F.3d 885, 887 (8th Cir. 2006). The Government proved that Saddler had both actual
and constructive possession of the firearms. Davis and Earsery testified that they
observed Saddler in actual possession of the firearms, specifically one of the 9mm
Bryco Jennings pistols. Buls testified that Saddler had a key to the Hartman residence
and that Saddler was the main person to use the basement where the firearms were
stored; the police found Saddler’s personal documents near the guns; and Earsery
testified that Saddler had access to the firearms. Because of Saddler’s dominion over
the basement, he also had constructive possession of those firearms.

       Nonetheless, Saddler argues that there is no evidence of a nexus between his
possession of a firearm and the drug trafficking convictions. See United States v.
Thorpe, 447 F.3d 565, 568 (8th Cir. 2006) (“To convict a defendant of possessing a
firearm in furtherance of a drug trafficking crime, the jury must have found a nexus
between the defendant’s possession of the firearm and the drug offense.”). “[W]e have
repeatedly held that a jury may find the requisite nexus when a firearm is discovered
in close proximity with drugs so as to support an inference that the firearm is for the
protection of the drugs.” Williams, 512 F.3d at 1044. Here, the firearms were loaded
and kept in the basement of the Hartman Street residence. Thus, the firearms were
quickly accessible and in close proximity to 701.8 grams of marijuana and 80.26
grams of cocaine, to a safe that contained an additional 122.56 grams of cocaine,
65.42 grams of crack cocaine and $21,514.42 in cash, and to the other parts of the
house that contained 2212 grams of marijuana, 597.74 grams of powder cocaine and
217.1 grams of crack cocaine. See United States v. Close, 518 F.3d 617, 619 (8th Cir.
2008) (holding that a quickly accessible firearm in close proximity to drugs helps
establish a nexus between the defendant’s possession of the firearm and the drug
crime). Additionally, Davis testified that he had seen Saddler in possession of three
of the firearms, including one of the 9mm Bryco Jennings pistols, at different times
when they sat out in front of the 1264 West Mullan Avenue residence, where they sold

                                         -10-
crack cocaine. Davis also testified that Davis, Earsery and Saddler “would probably
be the main ones strapped, ready, whatever.” Based on this testimony, the jury could
reasonably infer that Saddler possessed the firearms to protect, and thereby further,
the drug distribution operation. See United States v. Smith, --- F.3d ---, 2008 WL
2906537, at *2 (July 30, 2008) (“We recognize the role of firearms in protecting
drugs, drug proceeds, and drug transactions.”). Therefore, the evidence was sufficient
to support Saddler’s conviction of possessing a firearm in furtherance of a drug
trafficking crime.

       Finally, the district court did not err in denying Saddler’s motion for judgment
of acquittal with respect to his firearm conspiracy conviction. To establish that a
defendant conspired to use, carry or possess a firearm in violation of § 924(c) and (o),
the Government must prove: (1) that there was a conspiracy, i.e., an agreement either
to use or carry a firearm during and in relation to a drug trafficking crime or to possess
a firearm in furtherance of a drug trafficking crime; (2) that the defendant knew of the
conspiracy; and (3) that the defendant intentionally joined the conspiracy. See 18
U.S.C. § 924(c), (o); cf. Garcia-Hernandez, 530 F.3d at 661; United States v. Cannon,
475 F.3d 1013, 1020 (8th Cir. 2007). Saddler argues that no evidence was presented
showing an agreement between him and the alleged co-conspirators. However,
Earsery testified that the firearms were “house” guns and that Earsery, Saddler,
Latiker, Wade, Leaks and Jackson all had access to the guns and all sold drugs out of
the West Mullan Avenue residences. Davis testified that he, Earsery and Saddler
“would probably be the main ones strapped, ready, whatever.” From this evidence
and the evidence previously detailed, we conclude that a jury could reasonably infer
that Saddler had implicitly agreed to use or carry a firearm during and in relation to
a drug trafficking crime or to possess a firearm in furtherance of a drug trafficking
crime.




                                          -11-
      B.     Sentencing Issues

      Saddler contends that his sentence was both procedurally unsound and
substantively unreasonable. “We review a defendant’s sentence for both the
procedural soundness of the district court’s decision and the substantive
reasonableness of the sentence imposed.” United States v. Tabor, 531 F.3d 688, 691
(8th Cir. 2008) (internal quotation omitted). In reviewing a challenge to a sentence,
we must

      first ensure that the district court committed no significant procedural
      error, such as failing to calculate (or improperly calculating) the
      Guidelines range, treating the Guidelines as mandatory, failing to
      consider the § 3553(a) factors, selecting a sentence based on clearly
      erroneous facts, or failing to adequately explain the chosen
      sentence–including an explanation for any deviation from the Guidelines
      range. Assuming that the district court’s sentencing decision is
      procedurally sound, [we] should then consider the substantive
      reasonableness of the sentence . . . .

Gall v. United States, 552 U.S. ---, 128 S. Ct. 586, 597 (2007). “Substantive
sentencing acts include, most importantly, how a district court balances the § 3553(a)
sentencing factors to derive its sentence.” Tabor, 531 F.3d at 691.

       Although Saddler does not challenge the calculation of the advisory sentencing
guidelines range, he does argue that the district court erred in denying his request for
a downward departure. However, “the denial of a downward departure is
unreviewable unless the district court had an unconstitutional motive or an erroneous
belief that it was without the authority to grant the departure.” United States v. Cole,
525 F.3d 656, 660 (8th Cir. 2008). Saddler does not argue that the district court had
an unconstitutional motive, and the district court recognized its authority to depart in
denying Saddler’s request: “I am aware that I have the power to depart whenever a
case falls outside the Heartland of cases. And this one does not.” Thus, we have no

                                         -12-
authority to review the district court’s denial of Saddler’s request for a downward
departure.

        Saddler also argues that the district court improperly applied a presumption of
reasonableness to the advisory sentencing guidelines range, contrary to the principles
announced in Rita v. United States, 551 U.S. ---, 127 S. Ct. 2456 (2007), because the
district court claimed that Saddler’s case did not “fall outside the Heartland of cases.”
We have held that Rita prohibits the district court from “believ[ing] that it was bound
. . . to require a certain amount or kind of evidence to vary from the Guidelines
recommendation, even though its own application of the § 3553(a) factors would
result in a different outcome.” United States v. Robinson, 516 F.3d 716, 718 (8th Cir.
2008). However, “Rita affords a district court the option to rest [its] decision upon the
Commission’s own reasoning that the Guidelines sentence is a proper sentence (in
terms of § 3553(a) and other congressional mandates) in the typical case if the court
finds that the case before it is typical.” Id. (internal quotation omitted) (alteration in
original). Here, the district court stated that this case did not fall outside the heartland
of cases, “that there [was] nothing unusual about this case that has not already been
figured into the computation of the advisory guidelines,” and “that were the Court to
depart downward, it would run afoul of the statutory factors at 18 United States Code
Section 3553(a).” Additionally, Rita was issued approximately two weeks before the
sentencing hearing. “Booker[ and] Rita . . . were hardly obscure decisions likely to
have been overlooked by federal sentencing judges . . . .” United States v. Gray, ---
F.3d ---, 2008 WL 2777408, at *1 (8th Cir. July 18, 2008). “Trial judges are
presumed to know the law and to apply it in making their decisions.” Walton v.
Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds, Ring v. Arizona, 536
U.S. 584, 609 (2002). In this case, the district court recognized that it “is required to
consider all of the statutory factors at 18 United States Code, Section 3553(a) unless
the factor clearly does not apply.” Sentencing Tr. at 17. Thus, we believe the district
court was fully aware of its ability to vary, did not apply a presumption of
reasonableness to the advisory sentencing guidelines range, and simply found

                                           -13-
Saddler’s case typical such that it did not warrant a lower sentence than that
recommended by the guidelines. See Robinson, 516 F.3d at 718.

        Saddler next argues that the sentence was substantively unreasonable. “We
review the reasonableness of the district court’s sentence[] for abuse of discretion.”
United States v. Canania, --- F.3d ---, 2008 WL 2717675, at *7 (8th Cir. July 14,
2008) (citing Gall, 128 S. Ct. at 597). “A [district] court abuses its discretion and
imposes an unreasonable sentence when it ‘fails to consider a relevant factor that
should have received significant weight; . . . gives significant weight to an improper
or irrelevant factor; or . . . considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.’” United States v. Mousseau, 517 F.3d
1044, 1048-49 (8th Cir. 2008) (quoting United States v. Rouillard, 474 F.3d 551, 556
(8th Cir. 2007)). On appellate review, “[s]entences within the Guidelines are
presumptively reasonable.” United States v. Starr, --- F.3d ---, 2008 WL 2485178, at
*14 (8th Cir. June 23, 2008).

       Saddler was sentenced to 322 months’ imprisonment, consisting of a mandatory
consecutive 60-month sentence added to a 262-month sentence, which was at the
bottom of the undisputed advisory sentencing guidelines range of 262 to 327 months’
imprisonment. The district court considered the § 3553(a) factors and provided
sufficient reasons to satisfy us that it “has considered the parties’ arguments and has
a reasoned basis for exercising [its] own legal decisionmaking authority.” See Rita,
127 S. Ct. at 2468.

      Nonetheless, Saddler claims that the district court failed to consider two
relevant factors that should have received significant weight: Saddler’s health and the
“Draconian penalties” associated with crack cocaine. However, the district court did
indeed consider Saddler’s medical condition and determined that the Bureau of
Prisons could handle and treat his Bell’s palsy. As for the “Draconian penalties”
argument, because Saddler did not raise this issue with the district court, we review

                                           -14-
it for plain error. See United States v. M.R.M., 513 F.3d 866, 870 (8th Cir. 2008),
petition for cert. filed, --- U.S.L.W. --- (U.S. June 17, 2008) (No. 07-11488). “Under
plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that
affects substantial rights. Further the error will not be corrected unless it seriously
affects the fairness, integrity or public reputation of judicial proceedings.” United
States v. Roundtree, --- F.3d ---, 2008 WL 2831844, at *1 (8th Cir. July 24, 2008)
(internal citation and quotation omitted); accord United States v. Olano, 507 U.S. 725,
733-736 (1993).

       We recognize that during the pendency of Saddler’s appeal, the United States
Supreme Court decided Kimbrough v. United States, 552 U.S. ---, 128 S. Ct. 558
(2007), which held that the district court may consider as a sentencing factor the
disparity created by the 100:1 crack-to-powder cocaine quantity ratio as set forth in
the sentencing guidelines. However, we cannot say that the district court committed
error, much less plain error, because we have previously held that a district court does
not abuse its discretion when it fails to consider the crack/powder sentencing
disparity. See United States v. King, 518 F.3d 571, 576 (8th Cir. 2008); see also
United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008) (“We do not believe,
though, that Kimbrough means that a district court now acts unreasonably, abuses its
discretion, or otherwise commits error if it does not consider the crack/powder
sentencing disparity.”); United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008)
(“Although Kimbrough empowers a district court to consider the disparity between
guideline sentences for powder cocaine and crack, it does not require it to do so.”).
Therefore, the district court did not abuse its discretion in sentencing Saddler to 322
months’ imprisonment.

      C.     Sixth Amendment Violation

       Finally, Saddler argues that the district court violated his Sixth Amendment
rights because the jury did not determine a key fact that increased the statutory

                                          -15-
maximum penalty he faced. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).
Because Saddler did not raise this constitutional challenge at sentencing, we again
review for plain error. See United States v. Conelly, 451 F.3d 942, 944 (8th Cir.
2006).

       Saddler was convicted of conspiracy to distribute and possession with the intent
to distribute fifty grams or more of a mixture or substance containing a detectable
amount of “cocaine base” in violation of 21 U.S.C. § 841(b)(1)(A). Saddler contends
that to be convicted of a § 841(b)(1)(A) offense, the jury must determine that the
offense involved “crack cocaine” rather than some other form of “cocaine base.” See
United States v. Edwards, 397 F.3d 570, 571-77 (7th Cir. 2005) (holding that a §
841(b)(1)(A)(iii) conviction requires proof of crack cocaine). According to Saddler,
if the jury determines that the offense involved “crack cocaine,” Saddler could be
sentenced to a maximum of life imprisonment as prescribed by § 841(b)(1)(A);
however, if the jury determines that the offense involved some other form of “cocaine
base,” he could only be sentenced to a maximum of twenty years as prescribed by 21
U.S.C. § 841(b)(1)(C). Saddler argues that the district court could not have
constitutionally sentenced him above twenty years’ imprisonment for these
convictions because the jury never determined whether the “cocaine base” involved
in the convictions was “crack cocaine.”

       We conclude that the district court did not commit error, much less plain error,
because the jury determined that the offenses involved “crack cocaine.” The district
court instructed the jury that “crack cocaine and a mixture or substance containing a
detectable amount of cocaine base refer to the same substance.” This instruction was
clear and followed our circuit’s precedent that “cocaine base” and “crack cocaine” are
synonymous. See United States v. Robinson, 455 F.3d 832, 834 n.2 (8th Cir. 2006)
(“‘[C]ocaine base’ in [§ 841] is synonymous with ‘crack cocaine.’”); see also

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U.S.S.G. § 2D1.1(c), Note D (defining “cocaine base” as “crack cocaine”). When the
jury asked for “a clarification on the differences between ‘crack’ cocaine and
cocaine,” the district court informed the jury to recall the evidence. The jury then
determined, and the evidence sufficiently supports, that Saddler conspired to distribute
fifty grams or more of crack cocaine and possessed fifty grams or more of crack
cocaine with the intent to distribute it.

        Even had there been an error that was plain, we would conclude that Saddler’s
substantial rights were not affected. Saddler was convicted for two separate offenses
involving cocaine base: conspiracy to distribute fifty grams or more of cocaine base
and possession with the intent to distribute fifty grams or more of cocaine base. Even
if Saddler’s argument were entirely correct, he nonetheless received a sentence that
is well within the statutory maximum available to the district court. Because each
offense would have a statutory maximum of twenty years’ imprisonment and because
a district court may “run sentences from multiple counts consecutively, rather than
concurrently, if the Guideline sentence exceeds the statutory maximum sentence for
each count,” the statutory maximum for both offenses if run consecutively was forty
years’ imprisonment. See United States v. Zimmer, 299 F.3d 710, 725 (8th Cir. 2002)
(quotation omitted); U.S.S.G. § 5G1.2(d). Saddler’s substantial rights were not
affected because his sentence of 262 months’ imprisonment for his conspiracy to
distribute fifty grams or more of cocaine base and his possession with the intent to
distribute fifty grams or more of cocaine base convictions was less than forty years.
Therefore, the district court did not violate Saddler’s Sixth Amendment rights by
imposing a sentence greater than twenty years’ imprisonment.




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III.   CONCLUSION

       Accordingly, we affirm Saddler’s convictions and sentence.2
                      ______________________________




       2
        We do recognize that since the pendency of Saddler’s appeal, the United States
Sentencing Commission adopted Amendment 706, which reduced the crack/powder
cocaine sentencing ratio in § 2D1.1(c). See United States Sentencing Guidelines
Manual (2007), App. C, Amend. 706. The Sentencing Commission has given
retroactive effect to Amendment 706. See 18 U.S.C. § 3582(c)(2). Saddler may move
the district court for a reduced sentence in light of Amendment 706, and the resolution
of this appeal does not prejudice Saddler’s ability to make such a motion. See King,
518 F.3d at 576-77.

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