                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      _____________

      No. 97-1344
      _____________

Andrew Jones,                            *
                                         *
                   Appellant,            *
                                         *
      v.                                 *
                                         *
United States of America,                *
                                         *
                   Appellee.             *

      _____________
                                             Appeals from the United States
      No. 97-2235                            District Court for the
      _____________                          Eastern District of Missouri.


Felton J. Sykes,                        *
                                        *
                   Appellant,           *
                                        *
      v.                                *
                                        *
United States of America,               *
                                        *
                   Appellee.            *
                                  _____________

                            Submitted: January 12, 1998
                                Filed: May 27, 1998
                                 _____________
Before BOWMAN, Chief Judge, BRIGHT, Circuit Judge, and JONES1, District Judge.
                             _____________

JONES, District Judge.

       Andrew Jones (“Jones”) was convicted by a jury of conspiracy to distribute and
possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846, and
with distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Felton Sykes (“Sykes”)
was charged in the conspiracy count and entered a plea of guilty thereto. Jones was the
only one of twenty-one alleged conspirators to proceed to trial. The District Court2
sentenced Jones to 360 months’ imprisonment and sentenced Sykes to 84 months’
imprisonment. Jones appeals his conviction and the sentence he received. Sykes
appeals his sentence. We affirm.

                                 I. BACKGROUND

        The defendants were involved in a conspiracy to distribute heroin and cocaine in
the St. Louis, Missouri area. The two ringleaders of the conspiracy were Lamond Sykes
(a cousin of defendant Sykes) and Eluterio Reyes (“Reyes”). Lamond Sykes led the
conspiracy in its distribution of drugs in St. Louis. Reyes, of Phoenix, Arizona, was the
main supplier of drugs to the conspiracy. Various members of the conspiracy
transported drugs and money between Phoenix, Arizona and St. Louis, Missouri. Other
members prepared the heroin for retail sale and distributed the heroin to primary
distributors and ultimate consumers. All twenty-one members of the conspiracy, except
Jones, plead guilty and were sentenced to various terms of imprisonment ranging from



      1
        The Honorable John B. Jones, United States District Judge, United States
District Court for the District of South Dakota, sitting by designation.
      2
        The Honorable Catherine Perry, United States District Judge, United States
District Court for the Eastern District of Missouri.

                                          -2-
18 months to 276 months. The ringleaders, Lamond Sykes and Reyes, were each
sentenced to 276 months’ imprisonment.

A.    Felton Sykes

        Sykes was charged with participating in the conspiracy from September of 1991
to June of 1994. Sykes was held responsible for distributing approximately 28 kilograms
of heroin and 595.35 grams of cocaine. Sykes assisted in the preparation of heroin for
retail sale, stored heroin, packaging materials, and money from the sale of heroin at his
residence, and met with Lamond Sykes, one of the ringleaders of the conspiracy, to
obtain heroin and make payment for heroin previously supplied to Sykes. Sykes was
ranked sixth to eighth in culpability amongst the twenty-one defendants charged in the
conspiracy. Sykes claims his involvement in the conspiracy ended when he was
incarcerated on state drug convictions from October of 1992 to February of 1993.
However, a federal search warrant executed in June of 1994 at Sykes’ business and
residence resulted in the seizure of over 300 grams of heroin. Sykes does not attempt
to explain the existence of this heroin, which was seized over a year after Sykes asserts
he ceased participation in the conspiracy.

       The guideline range for Sykes was 135 to 168 months’ imprisonment. The
District Court granted the government’s motion for a downward departure, under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based on Sykes’ substantial assistance in
the investigation and prosecution of other persons who were involved in the conspiracy.
Sykes was sentenced to a term of imprisonment of 84 months, a term of supervised
release of 3 years, and was ordered to pay a special assessment of $50.

      Sykes claims the District Court erred in denying him a minor participant reduction
under U.S.S.G. § 3B1.2(b) and the District Court erred in failing to depart sufficiently
to cure the disparity in sentences received by Sykes and other, more culpable,
codefendants. The government argues that Sykes did not preserve for review

                                          -3-
the issue of the minor participant reduction and that the disparity in sentences argument
has no merit.

B.    Andrew Jones

       Jones was charged with participating in the conspiracy from the winter of 1986
to December 22, 1994. Jones was held responsible for distributing approximately 71.5
kilograms of heroin and approximately 595.35 grams of cocaine. The District Court
imposed a sentence of 360 months’ imprisonment on the conspiracy count and 240
months’ imprisonment on the distribution count, to be served concurrently; 5 years of
supervised release on the conspiracy count and 3 years of supervised release on the
distribution count, to run concurrently; and a special assessment of $100.

       Jones was a street level seller, selling “buttons” of heroin to addicts in the St.
Louis area. Terry Martin testified at Jones’ trial that he and Jones, among others, began
selling buttons from houses and then sold from vehicles when law enforcement started
busting houses where drugs were being sold. Jones was also present on occasions when
heroin was being prepared and packaged for retail sale.

       Jones sought a downward departure on the basis of reduced mental capacity.
During the sentencing hearing, Jones called Dr. Daniel J. Cuneo, a clinical psychologist,
to establish that Jones was entitled to such a departure. Dr. Cuneo opined that Jones
suffered schizo-effective disorder, depressed type, and that he was mildly mentally
retarded. He opined that Jones functioned at the level of an eight- or nine-year-old
person. Dr. Cuneo determined that Jones had an IQ of 53.

      The government called Dr. John Rabun, a forensic psychiatrist, to dispute Jones’
claim that he suffered from reduced mental capacity which would entitle him to a
downward departure. Dr. Rabun testified that Jones’ alleged conduct of engaging in
business activities, including setting up drug buys at specific locations, answering

                                          -4-
hundreds of pages on his beeper per day and handling large sums of money, are
inconsistent with mental retardation. Dr. Rabun also stated that Jones’ conduct in
conforming to the conditions of his release on bond and his knowledge of such
conditions are inconsistent with mental retardation. Dr. Rabun testified that although
Jones has a mental condition, that mental condition did not cause or contribute to his
criminal activity.

      The District Court denied Jones’ motion for downward departure based on
reduced mental capacity. After considering the evidence presented by Dr. Cuneo and
Dr. Rabun and the arguments of counsel, the District Court did not find that Jones’
mental capacity was significantly reduced or that it contributed to the commission of the
offense.

       Jones raises four issues in this appeal: (1) the District Court erred in admitting
guilty pleas of non-testifying codefendants; (2) the District Court abused its discretion
in admitting evidence regarding Jones’ uncharged, subsequent drug transactions; (3) the
District Court’s finding that Jones did not have reduced mental capacity led it to
mistakenly believe it did not have authority to depart for Jones’ mental illness and
retardation, therefore, the District Court erred when it refused to depart; and (4) the
District Court erred in holding that it could not depart on the basis of the disparate
sentences received by others more culpable than Jones.

                                     II. DECISION

A.    Felton Sykes

        Where a defendant fails to object to the presentence report, we review for “<plain
error resulting in a miscarriage of justice.’” United States v. Flores, 959 F.2d 83, 88 (8th
Cir.) (citation omitted), cert. denied, 506 U.S. 976 (1992). Sykes asserts that although
his attorney failed to raise an objection to the presentence report prior to his

                                           -5-
first sentencing hearing, Sykes personally raised the issue of his limited participation in
a resentencing hearing. We disagree. In his statement to the District Court during the
resentencing hearing, Sykes stated that he should not be held responsible for the full
amount of the heroin distributed during the conspiracy because he was not involved for
the entire time the conspiracy was active. Neither Sykes nor his attorney requested a
reduction under U.S.S.G. § 3B1.2(b) for being a minor participant. Therefore, we
review for plain error resulting in a miscarriage of justice. Flores, 959 F.2d at 88.

       Sykes carries the burden of proving he is eligible for a decrease in the base
offense level on the minor nature of his participation in the offense of conviction. United
States v. Wilson, 102 F.3d 968, 973 (8th Cir. 1996). We have explained that “[a]
defendant who is concededly less culpable than his codefendants is not entitled to the
minor participant reduction if that defendant was ‘deeply involved’ in the criminal acts.”
United States v. Thompson, 60 F.3d 514, 518 (8th Cir. 1995) (quoting United States v.
West, 942 F.2d 528, 531 (8th Cir. 1991)). Sykes did not object to the conclusion in the
presentence report that he was ranked sixth to eighth in culpability amongst the twenty-
one codefendants. He did not dispute that he helped prepare heroin for retail sale, that
he stored heroin, packaging materials and money at his residence, or that he met with his
cousin, Lamond Sykes, for the purpose of obtaining heroin and making payment for
heroin previously supplied to Sykes. The District Court found that Sykes’ involvement
in the conspiracy was “substantial.” It is clear from the record in this case that Sykes
was “deeply involved” in the criminal acts of the drug conspiracy. We do not find plain
error resulting in a miscarriage of justice in failing to grant Sykes a reduction in the base
offense level for being a minor participant in the drug conspiracy.

       Sykes’ second argument in this appeal is that the District Court erred in failing to
depart sufficiently to cure the disparity in sentences received by Sykes and other more
culpable codefendants. Jones’ disparity in sentences argument is foreclosed by this
Court holding that “[d]isparity between sentences imposed on codefendants is not


                                            -6-
a proper basis for departure.” United States v. Polanco, 53 F.3d 893, 897 (8th Cir.
1995), cert. denied, 518 U.S.1021 (1996); and United States v. Wong, 127 F.3d 725,
728 (8th Cir. 1997). “A defendant cannot rely upon his co-defendant’s sentence as a
yardstick for his own; a sentence is not disproportionate just because it exceeds a co-
defendant’s sentence.” United States v. Granados, 962 F.2d 767, 774 (8th Cir. 1992).
Although Congress enacted the Sentencing Guidelines to promote proportional and
uniform sentences for the same criminal activity, “some disparity will inevitably exist
because of the unique facts of each individual defendant’s case.” Wong, 127 F.3d at
728.

B.    Andrew Jones

       Jones’ first claim is that the District Court erred in admitting guilty pleas of non-
testifying codefendants. During cross-examination by Jones’ counsel regarding
transcripts of taped conversations, the government’s case agent stated, “... the rest of the
defendants having plead guilty, we did not use [a summary book of transcripts].”

        The trial court has broad discretion to admit evidence and we will reverse only if
the trial court abused its discretion. United States v. Rogers, 939 F.2d 591, 594 (8th
Cir.), cert. denied, 502 U.S. 991 (1991). If a guilty plea of a codefendant is brought into
a trial, either directly or indirectly, “trial courts must ensure it is not being offered as
substantive proof of the defendant’s guilt.” Id. The defendant’s right to a fair trial may
be seriously prejudiced if such pleas are mentioned at trial. Id. The facts and
circumstances of how a plea was used at trial must be carefully scrutinized by the
appellate court. Id. “It is essential to consider such factors as whether the court gave
the jury a limiting instruction, ‘whether there was a proper purpose in introducing the
fact of the guilty plea, whether the plea was improperly emphasized or used as
substantive evidence of guilt, and whether the introduction of the plea was invited by the
defense counsel.’” Id.


                                           -7-
       The testimony Jones complains of was not elicited by the government and the
government did not improperly emphasize it or use it as substantive evidence of Jones’
guilt. It appears that this testimony was volunteered by the case agent. Defense counsel
did not necessarily invite the case agent’s reference to the guilty pleas, but the reference
was made while defense counsel was cross-examining the case agent. Jones did not
request, and the District Court did not give, a limiting instruction regarding the case
agent’s testimony. Given the limited reference to the guilty pleas, and the government’s
choice not to emphasize the guilty pleas to the jury, we find that Jones’ counsel made
a tactical decision not to request a limiting instruction. Under the circumstances
presented by this case, we do not find plain error in the District Court’s failure to give
a cautionary instruction. Id.

        The second argument advanced by Jones is that the District Court abused its
discretion in admitting evidence of Jones’ uncharged, subsequent drug transactions. The
evidence which Jones objects to is the testimony of the government’s case agent. When
defense counsel asked if Lamond Sykes was still supplying Jones with drugs after May
of 1994, the case agent responded, “Not necessarily, no. I’m saying that [Jones] was
still selling drugs.” The case agent made additional statements that Jones was selling
drugs between May of 1994 and December of 1994.

       Fed.R.Evid. 404(b) is a rule of inclusion: “we will overturn the admission of Rule
404(b) evidence only if ‘the appellant can show that the evidence in question clearly had
no bearing upon any of the issues involved.’” United States v. Baker, 82 F.3d 273, 276
(8th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 538 (1996). Jones has failed to make
such a showing in this case. We have held that “[e]vidence of similar drug activity is
admissible in a drug prosecution case because ‘a defendant’s complicity in other similar
transactions serves to establish intent or motive to commit the crime charged.’” United
States v. Johnson, 934 F.2d 936, 940 (8th Cir. 1991) (citation omitted). Although the
evidence at issue in this case relates to Jones’ drug selling activities after he left the
conspiracy charged in the indictment, the mere subsequency

                                           -8-
of such acts do not, solely on those grounds, make the evidence incompetent to establish
intent or motive. Id. The evidence at issue here indicates that Jones continued to sell
drugs after he left the conspiracy led by Lamond Sykes. This evidence is similar in kind
and close in time to the drug activity Jones engaged in while a member of the conspiracy
charged in the indictment.

       The Rule 404(b) evidence Jones objects to was elicited by Jones’ attorney during
cross-examination of the government’s case agent. Testimony elicited by defense
counsel on cross-examination regarding Rule 404(b) evidence is admissible. United
States v. Kragness, 830 F.2d 842, 866, n. 23 (8th Cir. 1987). The District Court did not
abuse its discretion in admitting the evidence of Jones’ uncharged, subsequent drug
activities.

       Jones’ third argument is that the District Court erred in refusing to downwardly
depart because the court’s finding that Jones did not have reduced mental capacity led
it to mistakenly believe it did not have authority to depart for Jones’ mental illness and
retardation. The government asserts that although the District Court did not decide to
depart based on reduced mental capacity, the District Court did recognize its authority
to depart downward for diminished capacity. We agree with the government. The
District Court clearly stated during the sentencing hearing that although it had the ability
under the guidelines to depart where a defendant’s significantly reduced mental capacity
contributed to the commission of the offense, the court refused to so depart in this case.
This refusal to depart was based on the District Court’s finding that Jones’s mental
capacity was not significantly reduced, or even if it was lower than normal, it did not
contribute to the commission of the offense in this case.

       We lack authority to review a sentencing court’s exercise of its discretion to
refrain from departing either upward or downward from the range established by the
applicable Sentencing Guideline. United States v. Evidente, 894 F.2d 1000, 1004-05
(8th Cir.) cert. denied, 495 U.S. 922 (1990); and United States v. Follett, 905 F.2d 195,

                                           -9-
197 (8th Cir. 1990) (holding that the district court’s refusal to depart downward on the
basis of the defendant’s psychological problems and diminished capacity was not
reviewable on appeal), cert. denied, 501 U.S. 1204 (1991). “Failure to depart downward
is reviewable only if the district court did not realize that it had the discretion to consider
a downward departure.” United States v. Knight, 58 F.3d 393, 398 (8th Cir. 1995)
(citation omitted), cert. denied, 516 U.S. 1099 (1996). The District Court clearly
recognized its authority to depart in this case, and, therefore, the court’s decision
refusing Jones’ request for a downward departure based on diminished mental capacity
is unreviewable on this appeal.

       Jones’ final argument is that the District Court erred in holding that it could not
depart on the basis of the disparate sentences received by others more culpable than
Jones. Jones’ sentence guideline computation was based on an offense level of 40 and
a criminal history category of III, resulting in a sentence range of 360 months to life.
       If Jones had pled guilty and received a 3-level reduction for acceptance of
responsibility under Section 3E1.1(a)(b)(1)(2), his sentence range would have been 262
months to 327 months. By going to trial, Jones raised his minimum sentence under the
guidelines by 98 months. The two ringleaders of this conspiracy, who pled guilty but did
not otherwise provide any assistance to the government, each received sentences of 276
months, probably as a result of a 3-level reduction for acceptance of responsibility.

        Jones joined the conspiracy near its beginning, and there was evidence that
Lamond Sykes had stated that Jones was his most loyal and steady worker. The
presentence reports attributed the same drug amounts to Lamond Sykes and Jones on the
conspiracy charges.

     As stated above in connection with Sykes’ disparate sentences argument, Jones’
argument is precluded by our prior holding that disparity in sentences among




                                            -10-
codefendants is not a proper basis for a departure. See Wong, 127 F.3d at 728; and
United States v. Reeves, 83 F.3d 203, 207 (8th Cir. 1996) (holding a defendant’s
argument that his sentence is disproportionate to his codefendants, considering his
comparably minor role in the offense, was precluded by prior Eighth Circuit decisions).

       Although Jones’ sentence is significantly heavier than other more culpable
members of the drug conspiracy, this Court’s review of Jones’ sentence imposed under
the Sentencing Guidelines is limited to determining whether it “was imposed as a result
of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(a)(2); see
also, Granados, 962 F.2d at 774. We find that the District Court correctly applied the
Sentencing Guidelines in Jones’ case.
.
                                 III. CONCLUSION

      The judgment of the District Court in both cases is affirmed.

BRIGHT, Circuit Judge, concurring in part and dissenting in part.

      I concur in the result reached by this court with respect to the appeal of Felton
Sykes. I must dissent, however, in this court’s affirmance of Andrew Jones’ sentence.

      I.     An Unfair Criminal System

       The sentence of Jones, a man with the mind of a child, to thirty years of
incarceration makes a mockery out of the phrase, “Equal Justice Under the Law.” In this
case, the lowest person on the totem pole, a mere street-level seller with an I.Q. of fifty-
three received a heavier sentence than the mastermind of the conspiracy and the
conspiracy’s primary drug supplier. What kind of system could produce such a result?
This case provides yet another example of how rigid sentencing guidelines and the


                                           -11-
mandatory minimums associated with drug cases make an unfair “criminal”3 system.
Moreover, even under the Sentencing Guidelines, the district court should have
determined that Jones’ limited mental capacity probably prevented him from
comprehending the conspiracy’s activities other than those sales that he personally made.

        Jones’ thirty-year sentence represents the heaviest sentence given to any member
of this twenty-one person drug conspiracy. Lamond Sykes, the kingpin of the
conspiracy, and Eluterio Reyes, the primary drug supplier, each received a sentence of
twenty-three years. Roberta Farr, who served as an alternative source for heroin,
received only two years' incarceration. The prosecutor in this case concedes that Jones
served only as a street-level seller and that Jones received a harsh sentence. The
prosecutor states that had Jones pleaded guilty, he would have received a lesser
sentence, and that Jones’ insistence on exercising his Constitutional right to a trial
justified his heavy sentence. In turn, Jones’ defense counsel asserted that he told Jones
that counsel would accept a plea agreement but believes that because of Jones’ reduced
mental capacity that Jones may not have understood the need to accept the plea
agreement.4

       The criticism for this heavy sentence imposed on the least responsible person in
the conspiracy is not directed at the district court or the attorneys. The injustice in this
case rests with our faulty system of sentencing guidelines and mandatory minimums. I
add this case to my litany of opinions criticizing the guidelines. See, e.g., Montanye v.
United States, 77 F.3d 226, 233 (8th Cir.) (Bright, J., dissenting) (“By any ordinary
measure outside the guidelines, I would think this sentence would be considered



      3
        I use the term criminal system rather than criminal justice system because the
present scheme of sentencing guidelines and mandatory minimums often produces an
unfair or inequitable result.
      4
       These comments were in response to questions from the court at oral argument.

                                           -12-
draconian, unnecessarily harsh and unreasonable.”), cert. denied, 117 S. Ct. 318 (1996);
United States v. Hiveley, 61 F.3d 1358, 1363 (8th Cir. 1995) (Bright, J., concurring)
(“These unwise sentencing policies which put men and women in prison for years, not
only ruin lives of prisoners and often their family members, but also drain the American
taxpayers of funds which can be measured in billions of dollars.”); United States v.
O’Meara, 895 F.2d 1216, 1221 (8th Cir. 1990) (Bright, J., dissenting in part and
concurring in part) (“This cases opens the window on the sometimes bizarre and topsy-
turvy world of sentencing under the Guidelines.”). Regrettably, the primary
consideration under our present sentencing scheme is not criminality, but rather on the
weight of the drugs charged to a defendant plus the information a defendant will give to
his or her prosecutor. In this case, the kingpin (Sykes) and other primary actors in the
conspiracy had something to sell in exchange for lighter sentences: information on
underlings. For informing on lesser partners in crime, the kingpins received reduced
sentences for “acceptance of responsibility.” “Acceptance of responsibility” reductions
are usually more of a reward for being a snitch rather than a recognition of true
repentance. For their part, the underlings are rarely privy to workings of the overall
conspiracy and consequently have nothing to sell to the prosecutor. The circumstances
in this case compel me to repeat what I stated in United States v. Griffin:

      What kind of a criminal justice system rewards the drug kingpin or near-
      kingpin who informs on all the criminal colleagues he or she has recruited,
      but sends to prison for years and years the least knowledgeable or culpable
      conspirator, one who knows very little about the conspiracy and is without
      information for the prosecutors?


Griffin, 17 F.3d 269, 274 (8th Cir. 1994) (Bright, J., dissenting).




                                         -13-
      II.    Plain Error – Calculation of Drug Amounts Against Jones

       Even under the Sentencing Guidelines, the district court committed clear error in
calculating the drug amounts attributable to Jones.5 For a defendant to be sentenced for
drugs distributed by his or her co-conspirators, the distribution of drugs must have been:
“(1) in furtherance of the conspiracy and (2) reasonably foreseeable to [the defendant].”
See United State v. Montanye, 962 F.2d 1332, 1347 (8th Cir. 1992), rev’d on other
grounds, 996 F.2d 190 (8th Cir. 1993) (en banc) (citations omitted). “For activities of
a co-conspirator to be reasonably foreseeable to a defendant, they must fall within the
scope of the agreement between the defendant and the other conspirators.” Id. (citation
omitted).

       What would the reader of this opinion think about a thirty-year prison sentence
for an eight- or nine-year-old boy (the mental level at which Jones functions), who was
charged with drug distribution? A person of this level of intelligence is not likely to
comprehend the scope of the conspiracy. Simply stated, Jones did not possess the
mental capacity to comprehend the drug distribution scheme beyond performing the tasks
that he was ordered to do. Therefore, the district court should have rejected the
Presentence Report’s conclusion that Jones was responsible for almost the entire amount
of drugs sold by the conspiracy, or at least held a hearing on this issue.




      5
        As reflected in the Presentence Report, the probation officer accepted the
government's testimony that the overall conspiracy sold about one ounce (28.35 grams)
of heroin per day between the Winter of 1986 and May of 1994, totaling 77.42 kg of
heroin. PSR at p.8, ¶ 24. Furthermore, the probation officer credited testimony that
for three weeks during the Summer of 1994, the conspiracy sold approximately one
ounce (28.35 grams) of cocaine per day, for a total of 595.35 grams of cocaine. Id.
The probation officer concluded that because Jones entered the conspiracy soon after
it began, Jones was responsible for 71.5 kg (almost all of the total amount) of heroin
and 595.35 grams (the entire amount) of cocaine. Id.; Add. to PSR at #5.

                                          -14-
       In attempting to justify the length of Jones’ sentence, the government contends
that Jones played an elevated role in the conspiracy ring. Specifically, the government
notes the following factors: (1) Jones joined the conspiracy near the beginning; (2)
Sykes considered Jones one of his most trusted employees; and (3) Jones trained and
supervised new street-level sellers.

       The government’s position lacks substantial merit. The fact that Jones joined the
conspiracy near the beginning indicates nothing as to Jones’ role in the conspiracy.
Furthermore, Sykes would no doubt consider Jones a trusted employee because Jones
did only what Sykes and others told him to do and knew nothing of the overall scheme.
Finally, the duties of street-level drug seller in this conspiracy included driving a vehicle
to a designated area and exchanging drugs for money. Consequently, Jones’ “training”
and “supervision” of new street-level sellers hardly suggests that Jones possessed
advanced mental capabilities. Interestingly, the government itself presented evidence
indicating over 500 telephone calls between Jones and Sykes during a three-month
period. This evidence shows that because of Jones’ reduced mental capacity, he needed
constant and perhaps repeated directions to even carry out the simplest duties of the
conspiracy.

       The record also discloses that although the Presentence Report describes at length
the activities of different members of the conspiracy, the Presentence Report makes only
brief mention of Jones’ role. Specifically, the Presentence Report makes only the
following notations in reference to Jones: (1) Jones (with Bruce Lee) sold an undercover
detective .98 grams of black tar heroin; (2) a confidential informant told police that
several individuals, including Jones, were involved in selling heroin in the St. Louis,
Missouri area; (3) during 1987, Jones joined the Sykes’ conspiracy, at which time the
co-conspirators began selling increased amounts of heroin and cocaine in button form;
(4) Sykes utilized several individuals, including Jones, to distribute the heroin in the St.
Louis, Missouri area; and (5) when police arrested Jones, he was carrying a gun. If
Jones had such an elevated position in Sykes’ drug scheme, the

                                           -15-
Presentence Report would certainly contain more notations concerning Jones other than
repeating that which is undisputable--Jones sold drugs for Sykes on the street. Indeed,
nothing in the Presentence Report supports the government’s attempt to paint Jones as
anymore than an unintelligent low-level drug seller.

      Finally, I must comment on one further aspect of this case, which is the high cost
and relatively low benefit of incarcerating large numbers of drug offenders for
excessively long periods of time. In this case, the government obtained the conviction
of twenty-one defendants, resulting in sentences exceeding 204 years. Based upon 1995
figures and excluding the inflation factor, the cost of incarcerating all the defendants
from this conspiracy alone totals almost $4.5 million.6

      The imposition of excessive sentences produces a tremendous monetary cost to
the government and therefore the taxpayers. A United States Department of Justice
analysis, released on February 4, 1994, showed that 16,316 federal prisoners
incarcerated on drug charges were low-level drug offenders.7 These low-level drug
offenders were non-violent, had previously experienced little or no contact with the
criminal justice system, and played only low-level or peripheral roles in drug distribution
schemes. U.S. Dep’t of Justice, An Analysis of Non-Violent Drug Offenders with
Minimal Criminal Histories, p.6 (1994).

       Yet, these low-level offenders received average sentences of 6.8 years, primarily
due to mandatory minimums. In fact, two-thirds of the low-level drug offenders


      6
       In Fiscal 1995, we estimate the average cost per day per inmate will be $60.26,
with an average annual amount of $21,995. Letter from Kathleen M. Hawks, Director,
United States Department of Justice, Federal Bureau of Prisons, to the Honorable
Myron H. Bright (July 6, 1995) (on file with Judge Bright).
      7
       According to the same study, low-level drug offenders comprised 36.1% of all
incarcerated drug offenders.

                                          -16-
received mandatory minimum sentences. In 1994, the Federal Judicial Center released
a study on the effect of mandatory minimums and current guideline sentencing. That
study provided:

       We know from previous work by the Bureau of Prisons that 70% of the
       prison growth related to sentencing since 1985 is attributed to increases in
       drug sentence length. “(D)rug law offenders alone are consuming three
       times more resources than all other federal crimes combined. . . unless
       Congress and the Sentencing commission change drug sentences, relief will
       be nowhere in sight.


Federal Judicial Center, The Consequences of Mandatory Minimum Prison Terms: A
Summary of Recent Findings, p.6 (1994).

      In Hiveley, 61 F.3d at 1363-64, this writer discussed the enormous costs of
incarcerating drug offenders for excessive periods of time:

       This is the time to call a halt to the unnecessary and expensive cost of
       putting people in prison for a long time based on the mistaken notion that
       such an effort will win “The War on Drugs.” If it is a war, society seems
       not to be winning, but losing. We must turn to other methods of deterring
       drug distribution and use. Long sentences do not work . . . and penalize
       society.


        Jones, age thirty-five at the time of sentencing, will probably spend the rest of his
natural life in prison (assuming he lives to age 65 in prison). The cost to the taxpayers
for this incarceration will probably exceed $750,000. If this sentence is lawful, it does
not serve the cause of justice or the public interest.




                                           -17-
      III.   Disparity and Inequity

       United States District Judge Vincent L. Broderick8 of New York spoke to the
Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary of the
House of Representatives at the Congress of the United States almost five years ago
(July 28, 1993). See VINCENT L. BRODERICK, STATEMENTS BY VINCENT L.
BRODERICK BEFORE THE SUBCOMMITTEE ON CRIME AND CRIMINAL
JUSTICE OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES (1993) [hereinafter “Statement of Vincent L. Broderick”].

       At that time, Judge Broderick served as chair of the Committee on Criminal Law
of the Judicial Conference of the United States. He spoke as an experienced, practical
and intelligent federal judge on behalf of the Committee and indeed federal judges
everywhere.9 Judge Broderick was no soft-headed judge. He had served as a deputy
police commissioner in New York, then police commissioner and as a prosecutor. He
had served as a federal district judge since 1976.

      In no uncertain terms he told the subcommittee that mandatory minimum
sentences which drive guideline sentencing in many cases make it "impossible for the
judge, today, fairly and honestly to perform his or her role." (Statement of Vincent L.
Broderick, at 4). He spoke of the "unfairness of sentencing that results from mandatory




      8
       Judge Broderick died on March 3, 1995. The Pace University Law Review
published a tribute to this fine jurist. 16 Pace L. Rev. 187 (Winter 1996).
      9
       As the concurring opinion noted in United States v. Hiveley, 61 F.3d 1358,
1364 (8th Cir. 1995) that 86.4% of federal sentencing judges support changing current
sentencing rules.

                                        -18-
minimum sentences and some of the characteristics of the federal mandatory system that
exacerbate unfairness, particularly for drug offenses." Id.10

        The Broderick statement concerning the unfair impact of sentences based on
mandatory minimum penalty statutes is graphically illustrated by the instant Jones'
sentence. Jones' sentence of thirty years under the guidelines is driven and controlled
by a mandatory minimum sentence of at least ten years--twenty years where a prior
felony existed against the offender. The mandatory minimum applies to 1 kg or more of
heroin. In this case, the probation officer (not the judge) attributed 71.5 kg. of heroin to
Jones and certain others in the conspiracy by an estimate that from the winter of 1986
to June 1994, the conspiracy distributed an average of one ounce of heroin per day for
a total of 77.42 kg of heroin.

       The attribution to Jones, 71.5 kg of heroin, rested not on his actual sales nor his
knowledge of the extent of the conspiracy but apparently on the days and weeks he
served the conspiracy. As we have already observed, Jones, the low person on the totem
pole, received the harshest sentence.

      The reason for such an unfair sentence in a drug case can be explained by Judge
Broderick's comments. We quote them in part below:

      1.     Mandatory minimums are inherently unfair because their
             application depends, in most cases, upon the presence of only
             one factor.

            An inherent vice of mandatory minimum sentences is that they are
      designed for the most culpable criminal, but they capture many who are


      10
        The Broderick statement noted that more than 100 federal mandatory minimum
penalties exist in 60 criminal states but four statutes, these dealing with drug offenses,
account for 94% of cases where mandatory minimum sentences have been imposed.

                                           -19-
      considerably less culpable and who, on any test of fairness, justice and
      proportionality, would not be ensnared.


(Statement of Vincent L. Broderick, at 7). Those comments apply in this case.

      2.     Unfairness of Quantity Based Mandatory Minimum Sentences.

              Use of the amounts of drugs by weight in setting mandatory
      minimum sentences raises issues of fairness because the amount of drugs
      in the offense is more often than not totally unrelated to the role of the
      offender in the drug enterprise. Individuals operating at the top levels of
      drug enterprises routinely insulate themselves from possession of the drugs
      and participation in the smuggling or transfer functions of the business. It
      is the participants at the lower levels--those that transport, sell, or possess
      the drugs--that are caught with large quantities.


Id. at 10. Those comments apply in this case.


      3.     Unfairness of Mandatory Minimum Drug Sentences Based on
             Weight Without Regard for Purity.

      Since the relation of the carrier medium to the drug increases as the drug
      is diluted in movement to the retail level, the unfairness of imposing
      automatic sentences based on amount without regard to role in the offense
      is compounded by failure to take purity into account.

Id. at 11. These comments do not apply to Jones.

      4.     Unfairness in Applying Conspiracy Principles to Mandatory
             Minimum Drug Sentences.

           Another significant factor of unwarranted unfairness in mandatory
      minimum sentencing is the application of conspiracy principles to


                                          -20-
      quantity-driven drug crimes. Under the Pinkerton doctrine of conspiracy,
      accomplices with minor roles may be held accountable for the foreseeable
      acts of other conspirators in furtherance of the conspiracy. A low-level
      conspirator is subject to the same penalty as the kingpin. . . .

Id. at 11-12. This comment applies here.

      5.    Unfairness For Failure to Take Role in the Offense into Account
            in Setting Mandatory Minimum Sentences.

             Failure to permit the sentencing judge to take into account the role
      of the offender in the offense, particularly for business enterprise type
      offenses, is probably the most central unfairness factor in mandatory
      minimum sentencing. Indeed, role in the offense is far more reflective than
      amount of drugs of the dangerousness and culpability of the individual and
      of his or her reward from, and level in, the criminal enterprise.

Id. at 12. This comment applies here.

      6.    Unfairness in the Operation of the "Substantial Assistance"
            Factor with Respect to Mandatory Minimum Sentences.

            An ostensible purpose of mandatory minimums is to remove
      discretion from the sentencing process. It is axiomatic that there is no
      departure from a mandatory minimum under current federal law.

            No departure, that is, unless the prosecutor initiates it.

             . . . The government (prosecutor) exclusively holds this authority.
      Problems of inequities arise for three reasons; the more culpable offenders
      have more information to bargain with than low-level offenders who may
      have limited contact with conspirators; there are serious inherent incentives
      to perjury; and prosecutors indulge a wide variety of unstructured practices
      with respect to substantial assistance motions.




                                         -21-
              Who is in a position to give such "substantial assistance?" Not the
       mule who knows nothing more about the distribution scheme than his own
       role, and not the street-level distributor.

....

             There is no apparent consistency or uniformity between various
       United States Attorney's offices in the making of "substantial assistance"
       motions. . . .

              These sentencing results, affected by decisions related to
       prosecutorial discretion, raise concerns regarding the sentencing objectives
       of certainty of punishment, proportionality, and unwarranted disparity.


Id. at 13-15.

       How true those observations are in number 6 as applied to Jones and his co-
conspirators! We have attached as appendix A to this dissent a tabulation of the
sentences imposed on the twenty-one members of the conspiracy which graphically
demonstrates that consistency in mandatory minimum and guideline sentencing is a myth.
The sentences ranged from a low of eighteen months to 360 months (thirty years for
Jones). All offenders were subject to mandatory minimum sentences of at least five
years.11




       11
         We also know from United States v. Romero, 118 F.3d 576, 582-83 (8th Cir.)
(Bright, J., dissenting), modified, 128 F.3d 1198 (8th Cir.), cert. denied, 118 S. Ct. 611
(1997), an appeal of several of Jones’ co-conspirators, that a father sold out the mother
of his children presumably for sentence consideration by the prosecutor. Interestingly,
the Presentence Report in the instant case now reveals that Graseda, the father who
turned on Romero, the mother of his children, received 24 months to the mother's
mandatory minimum of 60 months (five years).

                                          -22-
       7.    Unfairness in Application of Mandatory Minimum Sentences.

       In thirty-five per cent of the cases where the facts seemed to warrant a
       mandatory minimum sentence, the defendants involved pleaded guilty to
       statutes or crimes carrying non-mandatory minimum sentencing provisions.
       This phenomenon should not come as a big surprise. Studies show that
       mandatory minimum sentencing practices influence participants at every
       level in the process--the investigator, the prosecutor, the jury, and the
       judges--as each reacts to ameliorate broadly perceived unfairness.

Id. at 16-17. That observation may apply here.

       8. Unfairness Related to Effect of Mandatory Minimum Sentences on
       Sentencing Guidelines.

             The mandatory minimums have also had the effect of skewing
       onwards and upwards the sentences which the Guidelines prescribe, as the
       Sentencing Commission has attempted to achieve proportionality while
       adapting to the mandatory minimums.

....

              Thus mandatory minimum penalties have hindered the development
       of proportionality in the Guidelines, and are unfair not only with respect to
       offenders who are subject to them, but with respect to others as well.


Id. at 17-18. Certainly that observation applies to Jones. The guidelines applied
proportionately upward to his ten-year mandatory minimum produced his thirty-year
sentence.

      Judge Broderick also addressed his remarks to the high cost to the public of
unnecessary lengthy prison sentences.




                                          -23-
              Mandatory minimum sentences and related distortions of the
       Sentencing Guidelines have institutionalized long-term incarceration as the
       preferred method of dealing with crime in this country, particularly drug
       crime. More people are warehoused in federal and state prisons than at
       any other time in our history. The United States has the highest per capita
       incarceration rate of any of the modern industrial countries.

....

       In turning to prisons as a primary answer to our crime problems, we have
       embarked upon a prison expansion that will cost hundreds of million
       dollars to build and billions of dollars annually to operate. The end is not
       in sight unless we reassess our options for managing offenders by
       evaluating less costly alternatives with two goals in mind: cost to the
       taxpayers and safety in the community for those taxpayers.

Id. at 21-23.


       Many judges have written on the injustice and unfairness of the prison sentence
structure for federal crimes particularly drug related crimes. It is time for the public and
Congress to pay heed to these voices. In the end, it is the public that pays the cost of a
grossly unsound system.



       IV.      Conclusion

      I would vacate the sentence in this case for plain error and call upon the district
judge to take another look at the sentence.




                                           -24-
      A true copy.


            Attest:


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


                                   APPENDIX A

           Compiled from the Presentence Report and the Appendix


* Andrew Jones                                          360 months
Street-Level Drug Seller

* Eluterio Reyes                                        276 months
Primary Drug Supplier
Did NOT Cooperate With the Government
Did NOT Testify at Jones’ Trial

* Lamond Sykes                                          276 months
Mastermind of the conspiracy
Did NOT Cooperate With the Government
Did NOT Testify at Jones’ Trial

* Roberta Farr                                          24 months
Downward Departure for Substantial Assistance



* Derek Conway                                          120 months
Accountable for 1-3 kg of Heroin




                                      -25-
Faced a 120-Month Mandatory Minimum12

* Stephanie Sykes                                                 18 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure for Substantial Assistance

* Felton Jerome Sykes                                             84 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure for Substantial Assistance

* Ken Braddock                                                    210 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum

* Cordia Thomas                                                   60 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure for Substantial Assistance

* Francis Weekly                                                  188 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum

* Sally Sluggett                                                  72 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure Substantial Assistance



      12
         The record in this case does not contain the criminal histories of all the co-
conspirators. Consequently, the mandatory minimums stated in this table do not reflect
any prior drug felony convictions by the defendants. If a defendant had a prior drug
felony, the defendant would have faced a 240-month mandatory minimum sentence
rather than 120-month mandatory minimum.

                                         -26-
* Adonis Smith                                    135 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum

* Bruce Lee                                       84 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure Substantial Assistance

* Wayne Fly                                       120 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum

* Terry Martin                                    84 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure Substantial Assistance

* Danny Craig                                     36 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure Pursuant to U.S.S.G. §5K2.0.

* Beverly Leach                                   18 months
Accountable for 1-3 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure (Aberrant behavior)

* Cherylyn Jones                                  168 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure Substantial Assistance




                                    -27-
* Joanne Jones                                                 36 months
Accountable for 28 kg of Heroin
Faced a 120-Month Mandatory Minimum
Downward Departure
(No Prior Criminal History & Substantial Family Obligations)


* Donna Romero                                                 60 months
Accountable for 256.8 grams of Heroin
Faced a 60-Month Mandatory Minimum


* Antonio Graseda (father of Romero’s children)                24 months
Accountable for 256.8 grams of Heroin
Faced a 60-Month Mandatory Minimum
Downward Departure Substantial Assistance




                                       -28-
