                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 04-3579
                                 ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *   Appeals from the United States
      v.                              *   District Court for the
                                      *   District of Minnesota.
Esequicio Londondio,                  *
                                      *
            Appellant.                *

                                 ___________

                                 No. 04-3580
                                 ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Carlos Alberto Gonzalez-Rodriguez,    *
                                      *
            Appellant.                *
                            ___________

                            No. 04-3582
                            ___________

United States of America,       *
                                *
            Appellee,           *
                                *
      v.                        *
                                *
Pablo Jaramillo,                *
                                *
            Appellant.          *

                            ___________

                            No. 04-3584
                            ___________

United States of America,       *
                                *
            Appellee,           *
                                *
      v.                        *
                                *
Juan Fernando Palacio,          *
                                *
            Appellant.          *




                                -2-
                                  ___________

                                  No. 04-3585
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Nahum Alcantora,                       *
                                       *
            Appellant.                 *
                                  ___________

                            Submitted: June 20, 2005
                               Filed: August 24, 2005
                                ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

       This case arises from a cocaine transaction that occurred in the Minneapolis
area in early November 2003. As a result of the transaction, six men were indicted
for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (2000), and
aiding and abetting possession with intent to distribute cocaine in violation of 21
U.S.C. § 841(a)(1) (2000). Prior to trial, two of the men, Nicholas Castillo and
Esequicio Londondio, pleaded guilty to the conspiracy charge in exchange for the
government's agreement to dismiss the aiding and abetting charge. The remaining
four men, Carlos Gonzalez-Rodriguez, Nahum Alcantora, Pablo Jaramillo, and Juan
Palacio, were convicted of both charges at trial. Gonzalez-Rodriguez, Alcantora,
Jaramillo, and Palacio appeal their convictions. Alcantora, Palacio, and Londondio

                                        -3-
appeal their sentences. For the reasons discussed below, we affirm the judgment of
the District Court1 in its entirety.

                                           I.

       On November 5, 2003, Castillo contacted Brian Zelaya, not knowing that
Zelaya was a police informant, and told Zelaya that a large shipment of cocaine had
arrived in Minnesota and that he could introduce Zelaya to the cocaine's source. At
the direction of the police, Zelaya arranged to meet Castillo that evening at B.J.'s Bar
in Minneapolis. When Castillo arrived, he was accompanied by his roommate,
Londondio. The three entered a van and therein made the initial arrangements for a
cocaine sale to Zelaya.

      The next day, Londondio called Zelaya, and the two agreed to meet on the
morning of November 7, 2003, at a Rainbow Foods store in Columbia Heights,
Minnesota, to further plan the drug exchange. At the meeting, Zelaya agreed to
purchase one to two kilograms of cocaine for $28,000 per kilogram. They arranged
for the delivery of the cocaine to take place the same day at an apartment in
Bloomington, Minnesota. Zelaya gave Londondio hand-written directions to the
apartment, which was an undercover apartment maintained by police. After the
meeting, police followed Londondio as he walked to his residence a few blocks away.

      A short time later, Londondio emerged from the residence with Gonzalez-
Rodriguez. The two left in a Jeep Cherokee driven by Gonzalez-Rodriguez and
proceeded to a Burger King restaurant near 34th Street and Nicollet Avenue in
Minneapolis. Waiting in the Burger King parking lot was Palacio, who was driving
a Chrysler LeBaron. Londondio, Gonzalez-Rodriguez, and Palacio spoke for a short


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                          -4-
time outside the vehicles. Then, Gonzalez-Rodriguez and Palacio walked to a nearby
location to look at vehicles that Palacio's boss was selling. They then returned to the
Burger King, entered their respective vehicles, and drove to the vicinity of 43rd Street
and Bloomington Avenue in Minneapolis. When they arrived, Palacio parked the
LeBaron behind a Ford F-150 pickup truck occupied by Jaramillo. Londondio and
Gonzalez-Rodriguez left the area, but returned in one or two minutes and parked the
Jeep near the other two vehicles. Soon, Alcantora, carrying a white plastic bag,
exited a dwelling near the vehicles. He spoke with Palacio at the driver's side
window of the LeBaron and then placed the bag in the trunk of the LeBaron.
Alcantora then entered the F-150 with Jaramillo.

       The three vehicles traveled in caravan fashion to the parking lot of the
undercover apartment in Bloomington. While en route, Londondio used Gonzalez-
Rodriguez's cellular phone to call Zelaya. Londondio told Zelaya that he and another
person were on their way to the apartment with the cocaine and asked about the
purchase money. Because officers knew that Londondio's representation that he was
with one other person was false, they suspected that Zelaya was possibly being set up
for a robbery. To protect Zelaya and the public, officers decided to make immediate
arrests when the vehicles arrived in the parking lot. Thus, when the vehicles entered
the parking lot, officers emerged from unmarked vehicles wearing raid vests and with
firearms drawn. All three vehicles attempted to leave the scene. Palacio fled the
furthest in the LeBaron; he was stopped by officers approximately two blocks from
the parking lot. Alcantora and Jaramillo in the F-150 were able to go only a few feet
before being stopped. Londondio and Gonzalez-Rodriguez were stopped after an
officer stepped in front of the Jeep and a truck driven by a deputy sheriff blocked it
from behind. The five men in the vehicles were arrested. A white plastic bag
containing a kilogram of cocaine was removed from the trunk of the LeBaron and the
directions to the apartment given to Londondio were recovered from the floor of the
Jeep.



                                          -5-
                                           II.

     We begin our review by addressing the challenges raised by Jaramillo,
Gonzalez-Rodriguez, Alcantora, and Palacio to their convictions.

                                           A.

       Jaramillo asserts that the District Court erred in failing to suppress a statement
that he made while in police custody and before being advised of his Miranda rights.
After their arrests, the five appellants were transported to the Drug Enforcement
Agency (DEA) office for booking. Because he spoke English, Jaramillo was asked
by DEA Officer Randall Olson to assist in the bookings of the other four non-
English-speaking arrestees. Jaramillo agreed. In the course of the booking process,
Jaramillo stated that he had been promised $500.00 in exchange for his role in the
cocaine transaction. At the time of the statement, Jaramillo had been in custody for
approximately three hours but had not been advised of his Miranda rights. The
District Court denied a pre-trial motion by Jaramillo to suppress the statement, and
Olson testified about the statement at trial. Jaramillo asserts that the admission of the
statement violates his Fifth Amendment rights.

       "When considering an order denying a motion to suppress, we review the
district court's factual findings for clear error and its legal conclusions de novo."
United States v. Briones, 390 F.3d 610, 612 (8th Cir. 2004), cert. denied, 125 S. Ct.
2925 (2005). The requirements of Miranda arise only when a defendant is both in
custody and being interrogated. United States v. Head, 407 F.3d 925, 928 (8th Cir.
2005). Because it is undisputed that Jaramillo was in custody and had not yet been
advised of his rights, the issue is whether his statement resulted from interrogation.
See Briones, 390 F.3d at 612. Interrogation includes both direct questioning by
officers and words or actions that officers should know are "'reasonably likely to elicit
an incriminating response from the suspect.'" Id. (quoting Rhode Island v. Innis, 446

                                          -6-
U.S. 291, 301 (1980)). Voluntary statements that are not in response to interrogation
are admissible with or without the giving of Miranda warnings. Head, 407 F.3d at
928.

       Jaramillo argues that asking him to assist in the bookings of the other suspects
was a police strategy designed to elicit an involuntary and incriminating statement,
particularly given the "inherently coercive" environment of custody. Jaramillo Br.
at 11. We disagree. The record indicates that the only question that had been asked
of Jaramillo prior to his statement was whether he was willing to assist in the
bookings of his co-defendants. Then, during the course of the bookings and not in
response to any question, Jaramillo mentioned the $500.00 payment. Nothing in the
record indicates that Olson anticipated that his request for assistance would cause
Jaramillo to make an incriminating remark. See United States v. Mendoza-Gonzalez,
363 F.3d 788, 795 (8th Cir. 2004) (holding that officer could not have reasonably
expected suspect to make an incriminating statement in response to officer's question
asking why suspect wanted to make a telephone call). Further, nothing in the record
indicates that Olson intended to circumvent Miranda by obtaining Jaramillo's
assistance in booking. Cf. Missouri v. Seibert, 124 S. Ct. 2601, 2612, 2616 (2004)
(holding that Missouri's two-step process of interrogation—whereby interrogation
was used to obtain a confession prior to the giving of Miranda warnings, after which
Miranda warnings were given and a confession again obtained—was a deliberate
strategy to undermine Miranda in violation of the Fifth Amendment). We conclude
that Jaramillo's statement was not the product of either express questioning or
coercive action, and it therefore was properly admitted.

                                          B.

      Gonzalez-Rodriguez asserts that the District Court erred in admitting evidence
of an out-of-court statement by Castillo implicating Gonzalez-Rodriguez as the
source of the cocaine. We review the District Court's evidentiary rulings for abuse

                                         -7-
of discretion. United States v. Roach, 164 F.3d 403, 408 (8th Cir. 1998), cert. denied,
528 U.S. 845 (1999). We will reverse only "if an error substantially prejudiced the
outcome." Id.

        Castillo was not present when the cocaine transaction was carried out on
November 7, 2003, but he was arrested approximately five days later at his residence.
After he was taken into custody, Castillo voluntarily stated to Olson that the cocaine
involved in the transaction was supplied to Londondio by Gonzalez-Rodriguez. At
trial, over the objection of Gonzalez-Rodriguez's counsel, the District Court permitted
Olson to recount Castillo's statement. In addition, after Castillo directly testified that
Gonzalez-Rodriguez was the supplier of the cocaine, the District Court permitted
Castillo to further testify that his statement to Olson on the day of his arrest was
"exactly the same" as his direct testimony. Trial Tr. at 375. Gonzalez-Rodriguez
argues that the evidence of Castillo's out-of-court statement implicating Gonzalez-
Rodriguez was hearsay that the District Court should have excluded.

        The government asserts that Castillo's out-of-court statement was not hearsay
because it was a prior consistent statement pursuant to Federal Rule of Evidence
801(d)(1)(B). Rule 801(d)(1)(B) provides that a statement is not hearsay if it is
consistent with the declarant's trial testimony and is offered to rebut an express or
implied charge of recent fabrication. A witness other than the declarant is permitted
to testify about the statement. Roach, 164 F.3d at 411. The statement, however, must
have been "made before the charged recent fabrication or improper influence or
motive." Tome v. United States, 513 U.S. 150, 167 (1995).

       We agree that Castillo's statement was admissible pursuant to Rule
801(d)(1)(B). Counsel for Gonzalez-Rodriguez and Palacio attempted to impeach
Castillo at trial by questioning him about two plea agreements to which he was a
party – one in this case and one in a 2003 case in which Castillo had pleaded guilty



                                           -8-
to the distribution of cocaine but had not yet been sentenced.2 Counsel suggested that
Castillo's desire to reduce his sentences in the two cases (by assisting the government)
gave Castillo a motive to lie on the witness stand about Gonzalez-Rodriguez's role
as the source of the cocaine. To rebut the implied charge that Castillo fabricated
testimony to receive a more favorable sentence in this case, Rule 801(d)(1)(B)
permitted the government to introduce Castillo's prior out-of-court statement to
Olson. See United States v. Hill, 91 F.3d 1064, 1071 (8th Cir. 1996). The statement,
which was consistent with Castillo's trial testimony, predated Castillo's plea
agreement in this case (the charged motive). While Gonzalez-Rodriguez correctly
asserts that the statement to Olson postdated Castillo's plea agreement in the 2003
case—making it inadmissable under Tome to rebut a charge that Castillo was
motivated to lie by that plea agreement3—the statement nonetheless was properly
admitted to rebut the alleged motive to lie created by Castillo's plea agreement in this
case. The District Court did not abuse its discretion when it admitted the evidence
of Castillo's out-of-court statement to Olson.




      2
        Counsel for Gonzalez-Rodriguez also raised the issue of Castillo's credibility
in his opening statement to the jury, stating, "I'm going to ask you to assess whether
[Castillo] has a motive to lie." Opening Statements Tr. at 57.
      3
       We note that it is highly improbable that a motive to lie could be found to arise
from the plea agreement in the 2003 case. That agreement limited Castillo's
obligation to providing the government substantial assistance "in the prosecution of
drug traffickers with whom the defendant has had past dealings or knowledge."
Gonzalez-Rodriguez Br. at A12 (Plea Agreement and Sentencing Stipulations in
United States v. Escobar-Vargas). There is no indication in the record that Castillo
had dealings with or knowledge of Gonzalez-Rodriguez when he signed that
agreement in April 2003—nineteen months prior to his dealings with Gonzalez-
Rodriguez in this case.

                                          -9-
                                          C.

        In a related matter, Gonzalez-Rodriguez asserts that the District Court erred in
not requiring the United States Department of Justice (DOJ) to turn over exculpatory
and impeaching material regarding any agreements or understandings that the
government offered to Castillo in the 2003 case. At a motions hearing in the District
Court, Gonzalez-Rodriguez's attorney argued that because the United States
Attorney's Office for the District of Minnesota (U.S. Attorney's Office) had recused
itself from the 2003 case and the prosecution of that case was pursued by the DOJ,
the DOJ (not the U.S. Attorney's Office) should be required to disclose any Brady4
or Giglio5 material related to Castillo. Thereafter, the District Court issued an order
requiring "the government, including the Department of Justice" to produce all
information regarding Castillo pursuant to Brady and Giglio "FORTHWITH." Order,
March 24, 2004. Although the U.S. Attorney's Office produced copies of Castillo's
plea agreement, inducements, criminal history, and proffer statements in the 2003
case, Gonzalez-Rodriguez asserts that the DOJ did nothing in response to the District
Court's order. We find no indication in the record, however, that the DOJ's failure to
comply was ever brought to the attention of the District Court. Because Gonzalez-
Rodriguez did not petition the District Court for enforcement of its order, Gonzalez-
Rodriguez has failed to preserve this matter for appellate review, and we find no plain
error that would entitle Gonzalez-Rodriguez to relief. See Becker v. Univ. of Neb.
at Omaha, 191 F.3d 904, 909 n.4 (8th Cir. 1999) ("A party may not stand idly by,
watching the proceedings and allowing the district court to commit error of which the
party subsequently complains.") (internal quotation, alterations, and citation omitted);
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) ("Errors not properly
preserved are reviewed only for plain error . . . .").


      4
       Brady v. Maryland, 373 U.S. 83 (1963).
      5
       Giglio v. United States, 405 U.S. 150 (1972).

                                         -10-
                                             D.

        Palacio and Alcantora assert that the evidence presented at trial was insufficient
to support their convictions. Since they did not move for acquittal at the close of all
the evidence, we review the sufficiency of the evidence for plain error. United States
v. Wadena, 152 F.3d 831, 853 (8th Cir. 1998), cert. denied, 526 U.S. 1050 (1999).
In order to prevail under the plain error standard, a defendant must prove (1) there is
error, (2) that is plain, (3) that affects a substantial right, and (4) that seriously affects
the integrity or public reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 732–36 (1993). We will find error only if, when viewing the evidence in
the light most favorable to the government, no reasonable fact-finder could have
found the defendants guilty beyond a reasonable doubt. United States v. Brown, 346
F.3d 808, 813 (8th Cir. 2003); United States v. Chapman, 356 F.3d 843, 847 (8th Cir.
2004).

       Palacio and Alcantora argue that the government failed to establish that they
knowingly possessed cocaine (an essential element of the aiding and abetting charge),
knew of the conspiracy (an essential element of the conspiracy charge), and
knowingly participated in the conspiracy (an essential element of the conspiracy
charge). To prove knowledge, prosecutors often use circumstantial evidence because
direct evidence of such scienter is seldom available. United States v. Thropay, 394
F.3d 1004, 1006 (8th Cir.), cert. denied, 125 S. Ct. 2283 (2005). Knowledge of
cocaine possession may be established by proof of constructive possession, including
evidence that a person has dominion or control over the cocaine or a vehicle carrying
the cocaine. United States v. Cortez, 935 F.2d 135, 143 (8th Cir. 1991), cert. denied,
502 U.S. 1062 (1992). Knowledge of a conspiracy and knowing participation in the
same may be established by presenting "only slight evidence" showing that a
defendant tacitly agreed to participate in the conspiracy. United States v. Causor-
Serrato, 234 F.3d 384, 388 (8th Cir. 2000), cert. denied, 532 U.S. 1072 (2001). A
defendant need not know all the details of the conspiracy to be a participant. Id.

                                            -11-
        We have reviewed the record and conclude that the evidence was clearly
sufficient to establish Palacio's and Alcantora's knowledge of and knowing
participation in the drug transaction, thus establishing the knowledge elements of
both charges. Most significant was the testimony of a surveillance officer that he
observed Alcantora place a bag of drugs in the trunk of Palacio's LeBaron. The
government also presented evidence that Palacio and Alcantora drove in a caravan
with co-defendants to the undercover apartment in Bloomington, whereupon officers
recovered the bag of drugs from the trunk of the LeBaron. While Palacio and
Alcantora each presented other plausible, legitimate reasons for their presence in the
caravan and at the apartment, "we will sustain the verdict if there is any interpretation
of the evidence that could lead a reasonable-minded jury to find the defendant[s]
guilty beyond a reasonable doubt." United States v. Selwyn, 398 F.3d 1064, 1066
(8th Cir. 2005) (emphasis added). Because the record supports a finding that Palacio
and Alcantora are guilty, the District Court committed no error, much less plain error,
in failing to sua sponte direct a judgment of acquittal at the close of all the evidence.
Finding no error, we do not reach the remaining three Olano factors.

                                           E.

       Alcantora argues that prosecutorial misconduct prejudiced his right to a fair
trial. Alcantora's defense theory was that he was an innocent bystander to the
transaction. He testified that he was at 43rd Street and Bloomington Avenue on the
date of the arrests to meet Jaramillo so that he could pay Jaramillo $500.00 for
previous construction work and so that the two could drive together to look at a new
construction project. According to Alcantora, on the way to view the new project,
Jaramillo directed him to make a brief stop at an apartment complex near the Mall of
America. To Alcantora's surprise, police were waiting in the parking lot of the
complex and an officer ordered him out of the F-150. Alcantora testified that the
officer took $600.00 from his shirt pocket, $500.00 of which he had intended to give



                                          -12-
to Jaramillo. Alcantora contends that the prosecutor acted inappropriately in two
instances at trial when commenting about the $500.00.

       Alcantora concedes that he did not raise this argument in the District Court, and
we therefore review for plain error. United States v. Fletcher, 322 F.3d 508, 516 (8th
Cir. 2003). To prove prosecutorial misconduct, a defendant must demonstrate (1) that
the prosecutor's comments were improper, and (2) that the comments prejudicially
affected the defendant's substantial rights such that he was denied a fair trial. United
States v. Ziesman, 409 F.3d 941, 953 (8th Cir. 2005). "If we reach the second step,
we consider '(1) the cumulative effect of the misconduct, (2) the strength of the
properly admitted evidence of the defendant's guilt, and (3) any curative actions taken
by the trial court.'" Id. (quoting United States v. Beckman, 222 F.3d 512, 526 (8th
Cir. 2000)).

       Alcantora first asserts that the prosecutor improperly compelled him to testify
that an officer stole the $500.00. We find nothing improper about the prosecutor's
questioning. By questioning Alcantora about the absence of any record showing that
he possessed $600.00 at the time of his arrest, the prosecutor stayed within the scope
of Alcantora's direct testimony. See United States v. Martin, 866 F.2d 972, 978 (8th
Cir. 1989). It was reasonable for the prosecutor to clarify the meaning of Alcantora's
testimony that an officer "took" the money. Trial Tr. at 725.

       Alcantora next asserts that the prosecutor acted improperly by remarking in her
closing rebuttal argument that Alcantora and his counsel fabricated the issue of the
stolen money for trial. The prosecutor stated:

      $500 stolen by officer. First time in trial. [Alcantora's counsel] is a
      lawyer. He's never made any kind of complaint about missing money.
      Fabrication for trial.



                                         -13-
Closing Arguments Tr. at 63. This statement impugned defense counsel's reputation
by misconstruing the clear facts in the record. Alcantora's counsel raised the issue of
the failure by the police to document the alleged seizure of the $600.00 not for the
first time at trial but at a pre-trial hearing before the District Court (at which the
prosecutor was present). We therefore agree that the prosecutor's rebuttal comments
may have crossed the line from effective advocacy to improper advocacy. See United
States v. Young, 470 U.S. 1, 9 (1985) (admonishing that counsel "must not be
permitted to make unfounded and inflammatory attacks on the opposing advocate");
United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005) (ruling that a prosecutor's
rebuttal statements accusing defense counsel of conspiring with the defendant to
fabricate testimony were "highly improper because they improperly encourage the
jury to focus on the conduct and role of [the defendant's] attorney rather than on the
evidence of [the defendant's] guilt").

       Alcantora has not established, however, that he was prejudiced by the
statement. The cumulative effect of the prosecutor's misconduct was minimal. First,
it included only a single mention of fabrication in the middle of a longer rebuttal
argument that focused on a number of pieces of evidence. Second, the jury heard
evidence contradicting the allegation that Alcantora's theory of the seized money was
newly created for trial. Alcantora testified during both cross-examination and redirect
examination that his attorney complained of the missing money at a hearing
approximately two months before trial. Further, in closing argument, Alcantora's
counsel addressed the government's suggestion that the missing money was a "new
story," noting that the issue was "brought out earlier at a previous hearing." Closing
Arguments Tr. at 51. We also believe that the incriminating evidence admitted
against Alcantora, discussed above, was convincing and that Alcantora would have
been convicted regardless of the prosecutor's misconduct. Finally, we note that, while
the District Court did not take sua sponte curative action immediately after the
prosecutor's improper comments, it did give the jury the written instruction that
"[q]uestions, objections, statements, and arguments of counsel are not evidence in the

                                         -14-
case." Jury Instruction No. 2. As in Young, when viewed in the context of the trial
as a whole, "the prosecutor's statements, although inappropriate and amounting to
error, were not such as to undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice." 470 U.S. at 16. We find no plain error.

                                          F.

       Finally, Gonzalez-Rodriguez and Palacio assert that the District Court made
a number of evidentiary errors, including (1) admitting hearsay evidence by
permitting police officers to testify about events of which the officers did not have
first-hand knowledge, including statements by other officers heard over police radios
during surveillance, (2) permitting the prosecutor to ask leading questions on direct
examination and to repeat witness testimony, and (3) permitting an officer to testify
as an expert witness without the notice required by Rule 16 of the Federal Rules of
Criminal Procedure. As noted above, we review the District Court's evidentiary
rulings for abuse of discretion, and we will not reverse an evidentiary error that was
harmless.6 United States v. Walker, 393 F.3d 842, 848 (8th Cir. 2005). "An
evidentiary error is harmless if the substantial rights of the defendant were unaffected
and the error did not influence or had only a slight influence on the verdict." United
States v. Wipf, 397 F.3d 677, 682 (8th Cir. 2005).


       We have carefully studied the transcript of the trial and find no evidentiary
error warranting reversal. We conclude that most of the District Court's rulings were
correct. For example, the District Court permitted testimony about out-of-court
statements that were offered to show the reason for police action, rather than to prove
the truth of the matter asserted. These statements were not hearsay. United States v.
Bowling, 239 F.3d 973, 977 (8th Cir. 2001); Garrett v. United States, 78 F.3d 1296,
1306 (8th Cir.), cert. denied, 519 U.S. 956 (1996). Likewise, the District Court

      6
       Defense counsel objected at trial to the evidentiary decisions discussed herein.

                                         -15-
permitted the prosecutor to ask leading questions when eliciting information on
preliminary matters. Leading questions used for this purpose generally are not
proscribed by Rule 611(c) of the Federal Rules of Evidence. See Fed. R. Evid. 611
advisory committee's note.


       Where we think there may have been error, it was harmless. For instance,
hearsay testimony that the District Court admitted generally recapped the testimony
of officers who actually witnessed the events and made the statements at issue. The
admission of hearsay evidence that is cumulative of earlier trial testimony by the
declarant or cumulative of other hearsay evidence to which no objection was made
is not likely to influence the jury and is therefore harmless error. Wipf, 397 F.3d at
682; United States v. Gabe, 237 F.3d 954, 958–59 (8th Cir. 2001); United States v.
Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th Cir. 2000), cert. denied, 532 U.S. 1024
(2001). We reject Gonzalez-Rodriguez's and Palacio's assertions that the cumulative
effect of the District Court's erroneous rulings prejudiced the defendants such that the
errors were not harmless. As the errors individually had no effect on the outcome of
this case, aggregating them changes little. The defendants were not denied a fair trial
or due process.


                                          III.


       We now turn to the challenges raised by Londondio, Palacio, and Alcantora to
their sentences.


      The District Court applied the then mandatory federal sentencing guidelines
scheme in arriving at sentencing ranges for the defendants. We review the District
Court's factual findings for clear error, and its application and construction of the
guidelines de novo. United States v. Harvey, 413 F.3d 850, 852 (8th Cir. 2005).

                                         -16-
                                          A.


       Londondio challenges the District Court's denial of a three-level reduction for
acceptance of responsibility pursuant to United States Sentencing Guidelines Manual
§ 3E1.1 (2003). Whether a defendant has accepted responsibility is a factual question
particularly suited for the sentencing court, and we therefore accord the District
Court's determination great deference. United States v. Arellano, 291 F.3d 1032,
1034 (8th Cir. 2002).


        Londondio pleaded guilty to Count 1 of the indictment, conspiracy to
distribute and possess with intent to distribute more than 500 grams of cocaine. At
the plea hearing, he admitted his involvement in the offense, indicated that he was
aware that his conduct was illegal, and expressed remorse for his actions. During a
subsequent interview with the probation officer preparing the presentence
investigation report (PSIR), however, Londondio falsely asserted that he had not
previously been involved in the sale of drugs and had no prior convictions. The
probation officer later learned that Londondio had been convicted of possession with
intent to distribute cocaine two years earlier under a different name. Based upon
Londondio's misrepresentations, the probation officer recommended no reduction to
Londondio's sentence for acceptance of responsibility and a two-level enhancement
to Londondio's sentence for obstruction of justice. At sentencing, the District Court
granted neither a reduction for acceptance of responsibility nor an enhancement for
obstruction of justice.


      Londondio contends that his candid admissions regarding the instant offense
should have earned him an acceptance of responsibility reduction despite his lie to the
probation officer. We conclude that the District Court did not clearly err by finding
that Londondio failed to fully accept responsibility. Londondio's misrepresentation


                                         -17-
to the probation officer about his criminal record was inconsistent with acceptance
of responsibility. See United States v. Bell, 411 F.3d 960, 964 (8th Cir. 2005). His
criminal history was clearly relevant to the District Court's determination of the
appropriate sentence in this case. The District Court was entitled to consider
Londondio's statements to the probation officer in determining whether Londondio
had clearly accepted responsibility, and we cannot say that the District Court clearly
erred in its finding.7


                                           B.


       Palacio and Alcantora assert that the District Court erred in denying each a
mitigating role reduction pursuant to United States Sentencing Guidelines Manual
§ 3B1.2 (2003). Section 3B1.2 permits a sentencing court to decrease the offense
level of a defendant who is substantially less culpable than most other participants in
a concerted criminal activity. U.S. Sent. Guidelines Manual § 3B1.2, cmt. n.3(A), n.4
& n.5 (2003). Although a defendant may be eligible for the § 3B1.2 reduction "if his
culpability for the relevant conduct is relatively minor compared to that of other
participants, . . . the mere fact that a defendant is less culpable does not entitle him
to the reduction." United States v. Johnson, 408 F.3d 535, 538 (8th Cir. 2005).
Rather, to determine the appropriateness of a reduction the sentencing court should
compare the acts for which the defendant is held accountable to the acts of the other


      7
        Londondio also argues that the District Court's decision is inconsistent: "If
there is no obstruction of justice, then clearly the defendant should be granted a three-
level reduction for acceptance of responsibility." Londondio Br. at 13. This
argument is without merit. We have affirmed district court decisions denying an
acceptance of responsibility adjustment even where there is no obstruction of justice
adjustment in any number of cases. See, e.g., United States v. Rivera, 370 F.3d 730,
733, 734–35 (8th Cir. 2004); United States v. Ngo, 132 F.3d 1231, 1233 (8th Cir.
1997).

                                          -18-
participants, and measure the defendant's acts and relative culpability against the
elements of the offense. Id. at 538–39. A sentencing court's determination that a
defendant is not entitled to the reduction may be reversed only if clearly erroneous.
 Id. at 538.


       While we recognize that neither Alcantora nor Palacio was the source of the
cocaine and that neither was involved in negotiating the exchange, we nonetheless
cannot say that the District Court clearly erred in finding them average participants
in the offense. The evidence indicated that Alcantora, alone, exited the Minneapolis
residence carrying a bag containing over 900 grams of cocaine. Alcantora spoke with
Palacio and then placed the cocaine in the trunk of the LeBaron in which Palacio was
the sole occupant. With Palacio exercising exclusive control over the drugs,
Alcantora and Palacio then joined their co-defendants in a three-vehicle caravan to
deliver the cocaine to the prospective buyer.


       Although it appears that Alcantora and Palacio may be less culpable than, for
example, Londondio, Castillo, and Gonzalez-Rodriguez, "this alone is not enough
to establish [] entitlement to a role reduction." United States v. Bertling, 370 F.3d
818, 821 (8th Cir. 2004). Based on the evidence of Alcantora and Palacio's
significant involvement in getting the drugs to the undercover apartment, the District
Court was not required to find them "substantially less culpable than the average
participant." U.S. Sent. Guidelines Manual § 3B1.2, cmt. n.3(A) (2003); see also
United States v. Alverez, 235 F.3d 1086, 1090 (8th Cir. 2000) (upholding district
court's denial of mitigating role reduction for transporter of drugs), cert. denied, 532
U.S. 1031 (2001); United States v. McGrady, 97 F.3d 1042, 1043 (8th Cir. 1996)
(same). We uphold the District Court's denials of the requested § 3B1.2 reductions.




                                         -19-
                                         C.


       Finally, Palacio argues that the District Court erred by sentencing him under
a mandatory guidelines scheme in violation of United States v. Booker, 125 S. Ct.
738 (2005). Booker held that the mandatory nature of the federal sentencing
guidelines ran afoul of the Sixth Amendment insofar as a sentencing judge, based on
certain facts found by the judge, was required to impose a sentence greater than the
sentence that could have been imposed based solely on facts admitted by the
defendant or proved to a jury beyond a reasonable doubt. 125 S.Ct. at 749, 756. As
a remedy, the Court declared the guidelines in their entirety non-mandatory, but
"effectively advisory" in all cases. Id. at 757.


       Prior to sentencing, Palacio filed objections to the draft PSIR and argued that
Booker's predecessor, Blakely v. Washington, 542 U.S. 296 (2004), prevented
enhancements to his sentence based on judge-found facts. The District Court agreed
that Blakely prohibited the PSIR-recommended enhancements for obstruction of
justice and flight from the crime scene, and it sentenced Palacio to an unenhanced
guidelines sentence. Nevertheless, Palacio's Blakely objection in the District Court
preserved his claim that the District Court committed Booker error by applying the
guidelines as mandatory rather than as advisory. See United States v. Pirani, 406
F.3d 543, 549 (8th Cir. 2005); United States v. Henderson, 408 F.3d 1078, 1079 (8th
Cir. 2005). Accordingly, we review this argument under the harmless error standard.
See United States v. Archuleta, 412 F.3d 1003, 1005 (8th Cir. 2005); United States
v. Perez-Ramirez, No. 04-3048, slip op. at 2 (8th Cir. July 20, 2005) ("[A] non-
constitutional Booker error is to be disregarded as harmless unless there is grave
doubt as to whether the defendant would have received a more favorable sentence
under an advisory guidelines system.").




                                        -20-
       While the District Court's use of the guidelines as mandatory was erroneous,
see Pirani, 406 F.3d at 550, there is nothing in the record that causes us grave doubt
as to whether Palacio would have received a more favorable sentence absent the
Booker error. First, the District Court stated at sentencing that it would impose the
same alternative sentence if the guidelines were deemed invalid: "If the guidelines
were not applicable I would also reach the same conclusion with respect to the
appropriate sentence in this case." Sent. Tr. at 8. Although the District Court's
alternative sentence presumed the guidelines wholly unconstitutional, rather than
advisory, the alternative sentence satisfies Booker's requirements. See United States
v. Thompson, 403 F.3d 533, 536 (8th Cir. 2005) ("We find that the district court's
announcement that it would sentence Thompson to 46 months' imprisonment
regardless of whether the Guidelines were mandatory renders any remand futile.").
Second, the District Court acknowledged that it had discretion to depart downward
pursuant to guidelines § 3B1.2 (the minor-participant reduction discussed above) and
§ 5K2.0 (a reduction for circumstances not adequately considered by the guidelines)
but chose not to depart to a more favorable sentence. See Perez-Ramirez, slip op. at
3 (finding error harmless where the district court "left unused some of its discretion
to sentence [defendant] to a more favorable sentence under the mandatory, pre-
Booker guidelines"). The Booker error therefore was harmless.


       In addition, Palacio's sentence of sixty-three months—a sentence at the low end
of the guidelines sentencing range and just three months higher than the statutory
minimum—was reasonable in light of the sentencing factors listed in 18 U.S.C.
§ 3553(a) (2000). See Booker, 125 S. Ct. 765–66 (discussing the reasonableness
standard of review).




                                        -21-
                                  IV.


We affirm the District Court in all respects.
                ______________________________




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