United States v. Payton

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3288
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
David A. Payton, *
*
Appellant. *
___________

Submitted: September 23, 2010
Filed: February 25, 2011
___________

Before BYE, BEAM, and SMITH, Circuit Judges.
___________

SMITH, Circuit Judge.

David A. Payton appeals his convictions and sentences for conspiracy to
manufacture, distribute, and possess with intent to distribute five grams or more of
crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) ("Count
1"); opening and maintaining a crack house, in violation of 21 U.S.C. § 856(a)(1)
("Count 5"); and distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2 ("Count 6"). Payton asserts that (1) the district court1
erred in denying his motion to sever the case for trial; (2) the district court erred in

1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
denying his Batson2 challenge; (3) he is entitled to a new trial because the government
withheld exculpatory evidence; (4) the district court abused its discretion in denying
his requested jury instructions; (5) insufficient evidence exists to support his
convictions; (6) the district court erred in determining the drug quantity attributable
to him; (7) the district court erred in applying an aggravating role enhancement; and
(8) the district court abused its discretion in denying a sentencing variance based upon
the disparity in the Guidelines between powder cocaine and crack cocaine. We affirm.

I. Background
David A. Payton, along with Sidney Glennard Hines, Durrell Ryan Parks, and
William Carl Morgan, was charged in a multi-count indictment with conspiracy to
manufacture, distribute, and possess with intent to distribute crack cocaine, opening
and maintaining a crack house, and distribution of crack cocaine (Counts 1, 5, and 6).
Prior to trial, the government filed an information and notice of prior conviction,
informing Payton that he was subject to a sentencing enhancement for a prior felony
drug conviction. Also prior to trial, Morgan and Parks entered guilty pleas pursuant
to plea agreements and agreed to cooperate against Payton and Hines at trial.

Payton and Hines were tried jointly. The government produced the following
evidence to support the charges at trial. On January 30, 2008, the Iowa City Police
Department's "Street Crimes Unit" began focusing on Hines in a drug investigation.
The police had purchased drugs, which led them to the apartment of Michelle Nichols
in Coralville, Iowa. That evening, the police conducted a search of Nichols's
apartment and found crack cocaine, money, and other indicia of drug dealing. During
the search, Hines arrived at the apartment and was searched. Hines possessed a small
amount of crack cocaine, a digital scale, a cell phone, and $1,190, including $200 of
the "buy" money from a transaction conducted earlier in the evening. Hines had been

2
Batson v. Kentucky, 476 U.S. 79 (1986).

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selling crack cocaine in Iowa City, Iowa, and had delivered crack cocaine to Nichols
earlier that evening.

Hines also distributed crack cocaine in Davenport, Iowa, to Willie Hester,
Morgan, Parks, Charlena Castle, and others. Hines was a supplier to Hester, a crack
dealer. On April 3, 2008, Davenport police raided Hester's residence, recovering
approximately six grams—15 individually wrapped "rocks"—of crack cocaine,
packaging material, and $563.

On August 30, 2008, the Davenport police raided Hester's new residence, where
Hester and Castle were present. Officers discovered 44 individually wrapped rocks of
crack cocaine, Hester's cell phone, and $676. While officers were still at Hester's
residence, Hester, directed by police, called Hines and said, "I have your money—I
sold out." Hester then received two phone calls from Hines, who advised Hester that
he was on his way to Hester's residence. After the second call, Hines approached on
foot and was intercepted by the police. Hines possessed a cell phone with the same
telephone number that Hester had just called. Hester was arrested and jailed, but Hines
was arrested and released.

Castle introduced Hester to Hines in 2007. Castle knew that Hines was a crack
dealer, and she thought that Hester could obtain better prices from Hines for crack
cocaine. Castle had observed Hines with ounce quantities of crack cocaine. Hester
estimated that Hines had supplied him with 50 to 100 rocks of crack cocaine on
approximately 25 to 30 separate occasions. Hester met Payton when Hines brought
Payton with him to Hester's home.

Payton distributed crack cocaine to Rhonda Cowan, Parks, Castle, Leslie
Lueders, and others. Between August 2008 and December 18, 2008, Hines and Payton
sold crack cocaine together. Payton provided a cell phone to Hines, which Hines then

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used to conduct his drug business. Payton also received Supplemental Security
Income (SSI) and spent all of his $650 SSI checks on crack cocaine.

In October 2008, Payton used Michael Bowes's apartment to distribute crack
cocaine. The police received complaints about drug dealing from Bowes's apartment.
On October 19, 2008, Davenport police asked Lueders to go to Bowes's apartment
with a $50 bill to see if she could purchase crack cocaine. Lueders met Payton at the
apartment and paid him $50 for crack cocaine. During the transaction, Payton revealed
a "wad of dope," placing it on the table for Lueders to choose. When Lueders picked
up a rock, Bowes took a small piece of it for himself. Lueders left the apartment and
gave the police a description of Payton.

After the sale, the police apprehended Payton outside of the apartment building.
He possessed the $50 bill that Lueders had given him and a cell phone. A records
check of the cell phone revealed numerous calls between Payton's cell phone and the
phone that Hines used, including calls that evening.

In October or November 2008, Payton and Hines began using Parks's apartment
to distribute crack cocaine. On December 18, 2008, Morgan, while working under the
direction of Davenport Detective Gilbert Proehl, arranged to purchase $300 worth of
crack cocaine from Hines. Prior to the purchase, the police equipped Morgan with an
audio and video recording device and gave him $300 in prerecorded funds to use for
the purchase. Then, Morgan placed recorded calls to Hines, and Hines advised
Morgan to meet him at Parks's apartment. Payton met Morgan at the door of the
apartment building and followed him up the stairs to Parks's apartment. A short time
later, Morgan met Detective Proehl and gave him 20 individually wrapped rocks of
crack cocaine.

The police obtained a search warrant for Parks's apartment and executed the
search that evening. After forcefully entering the apartment, the police discovered

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Hines in the bathroom attempting to flush evidence down the toilet. The police found
$300 from the earlier drug transaction on Hines after his arrest. In the toilet, officers
discovered six individually wrapped rocks of crack cocaine, a broken cell phone, two
rocks of crack cocaine inside the vacuum tube of the toilet, and a $10 bill in the
sewage line directly under the toilet. The police found another rock of crack cocaine
on the floor of the apartment, along with items used to cut and package crack cocaine.
On the ground outside the window of the apartment, officers discovered packaging
material, latex gloves, and baggie remnants.

At trial, Hines testified that he is a crack user, not a crack dealer, and that he
works for a construction company from time to time. He admitted to meeting Payton
in September 2008. He also admitted that on December 18, 2008, he used Payton's cell
phone to contact Morgan.

Payton also testified, admitting that he had been a crack user for 14 years, had
a very bad crack habit from 2007 to 2008, and had smoked crack "all day, everyday."
According to Payton, he was recently diagnosed as schizophrenic and began receiving
SSI as a result. He received $650 each month in SSI checks, and he used all of the
money to buy crack cocaine. He stated that he usually purchased crack cocaine in $50
amounts but sometimes in $20 amounts. Payton said that he shared the crack cocaine
with others on many occasions. Payton testified that he traded his property for crack
cocaine and sold cell phones for crack cocaine, one time receiving two $20 rocks for
a phone. Payton acknowledged that a $20 rock is .2 grams of crack cocaine and that
a $50 rock is a half of a gram of crack cocaine.

Payton admitted to using crack cocaine with Cowan, Parks, Bowes, and Rocky
Wales. According to Payton, on October 18, 2008, Bowes and Payton reached an
agreement that Payton would buy $50 worth of crack cocaine for them to share. He
also testified that he went to Parks's apartment on numerous occasions to get crack
cocaine and that he knew a lot of people came to Parks's apartment to get "high." He

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said that Parks would "run" for the drugs. To explain how Hines's phone number
appeared on his cell phone in August and September 2008, Payton stated that he let
people use his cell phone to order crack cocaine. Payton denied knowing Hester and
Castle.

As to the December 18, 2008 raid at Parks's apartment, Payton claimed that he
was in the apartment building to smoke crack cocaine and not as part of any
arrangement with Hines or Parks. He admitted that he saw Morgan come into the
building and that he followed Morgan to Parks's apartment. Payton maintained that
he did not see Hines in the apartment for a while; he said that he only saw Parks with
crack cocaine. According to Payton, after Morgan left, Payton saw Hines come out of
the kitchen. Payton stated that Hines never went into the bathroom that evening.

After a seven-day trial, the jury found Payton guilty on all counts.

II. Discussion
On appeal, Payton argues that (1) the district court erred in denying his motion
to sever the case for trial; (2) the district court erred in denying his Batson challenge;
(3) he is entitled to a new trial because the government withheld exculpatory evidence;
(4) the district court abused its discretion in denying his requested jury instructions;
(5) insufficient evidence exists to support his conviction; (6) the district court erred
in determining the drug quantity attributable to him; (7) the district court erred in
applying an aggravating role enhancement; and (8) the district court abused its
discretion in denying a sentencing variance based upon the disparity in the Guidelines
between powder cocaine and crack cocaine.

A. Motion To Sever
Before trial commenced, Payton filed a motion to sever his trial from Hines
based on antagonistic defenses. The district court denied the motion "subject to
renewal," noting that it "will hear that [motion] again at the close of all of the

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evidence." At the close of evidence, Payton's counsel "renew[ed] the motion to sever,
based on the argument that the defenses are inconsistent." The district court denied the
motion for severance.

On appeal, Payton asserts that his "defense was that he was not part of Hines's
activities, and if they were in the same place together, it was only because Payton was
there to 'get high.'" In turn, Hines's defense was to deny everything, as he "claimed he
only came to the Quad Cities occasionally," "said he bought from, but didn't sell to,
Willie Hester and Michelle Nichols," and "claimed the transaction on December 18th
with William Morgan was Morgan and Parks's deal, and that he helped only to get a
personal use quantity of crack, plus some cash." Payton contends that these two
defenses are antagonistic because to acquit both defendants, the jury would have to
believe both Hines's and Payton's testimony, which is impossible. Furthermore,
Payton asserts that the extensive evidence presented about Hines's activities in early
2008 prejudiced Payton because the jury could find Payton guilty by association.
Finally, he argues that if he had been tried after Hines, he could have called Hines as
a witness.

In response, the government argues that Payton admitted that he is addicted to
crack cocaine and that he shared it with others, but he maintained that he was not a
drug dealer. Likewise, Hines testified that he is a crack user, not a dealer. According
to the government, Hines's testimony did not undermine Payton's defense and, in fact,
actually supported it. For example, both Payton and Hines identified Parks as a drug
dealer and admitted being in Parks's apartment on December 18, 2008. Hines denied
distributing drugs and never implicated Payton in the conspiracy. Similarly, Payton's
contention that he was only a crack user was not antagonistic to Hines's defense;
Payton corroborated Hines's story that Hines did not enter the bathroom where the
crack cocaine and cell phone were found in the toilet. As a result, the government
maintains that Payton has failed to show prejudice in the district court's denial of his
motion for severance.

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 "We will not reverse a denial of a motion to sever unless the appellant
demonstrates an abuse of discretion resulting in clear prejudice." United States v.
Sandstrom, 594 F.3d 634, 642 (8th Cir. 2010) (internal quotation and citation
omitted). Two defendants may properly be tried together "if they are alleged to have
participated in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses." Id. at 644 (internal quotations and citations
omitted). The present case satisfies this standard, "and no one contends otherwise, so
there is no issue of misjoinder in violation of Rule 8. The claim is, instead, that the
joinder was prejudicial, and that the District Court should have granted a severance
under Fed. R. Crim. P. 14." Id. (internal quotation and citation omitted). According
to Rule 14(a):

If the joinder of offenses or defendants in an indictment, an information,
or a consolidation for trial appears to prejudice a defendant or the
government, the court may order separate trials of counts, sever the
defendants' trials, or provide any other relief that justice requires.

A court will permit severance only "upon a showing of real prejudice to an
individual defendant." Sandstrom, 594 F.3d at 644 (internal quotation and citation
omitted). "Whether to grant a motion to sever is left to the discretion of the trial court,
and a denial of severance is not grounds for reversal unless clear prejudice and an
abuse of discretion are shown." Id. (internal quotation and citation omitted). Prejudice
to the defendant must be both "real" and "clear"; as a result, "an abuse of discretion
in refusing severance is not alone enough to justify reversal and a new trial." Id.
(internal quotation, alteration, and citation omitted). A demonstration of prejudice
requires the defendant to demonstrate "some appreciable chance that [he] would not
have been convicted had the separate trial [he] wanted been granted." Id. (internal
quotation and citation omitted). "That is, the defendant must show something more
than the mere fact that his chances for acquittal would have been better had he been
tried separately. He must affirmatively demonstrate that the joint trial prejudiced his
right to a fair trial." Id. (internal quotation and citation omitted). To satisfy the real

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prejudice standard, a defendant may show "that his defense is irreconcilable with the
defense of his codefendant or that the jury will be unable to compartmentalize the
evidence as it relates to separate defendants." Id. (internal quotation, alteration, and
citation omitted). "The defendant carries a heavy burden in making this showing." Id.
(internal quotation and citation omitted).

Here, Payton asserts that his defense and Hines's defense were mutually
antagonistic. "Antagonistic defenses require severance only when there is a danger
that the jury will unjustifiably infer that this conflict alone demonstrates that both are
guilty." Id. (internal quotations and citation omitted). Severance is not mandated
"whenever codefendants have conflicting defenses." Id. (internal quotation and
citation omitted). In fact, Rule 14 provides that, if a defendant establishes prejudice,
the district court may exercise its discretion in tailoring the appropriate relief. Id.

We concur in the district court's determination that Payton's and Hines's
defenses do not even qualify as mutually antagonistic. Neither Payton nor Hines
accused the other of being the actual crack dealer; instead, they both maintained that
they were merely crack users. Furthermore, their defenses supported one another, as
they both identified Parks as the crack dealer. At no time did Payton or Hines
implicate the other as the crack dealer; in fact, Payton corroborated Hines's contention
that he did not enter the bathroom where officers discovered the crack cocaine and cell
phone in the toilet.

Additionally, we reject Payton's assertion that evidence of Hines's activities in
early 2008 prejudiced him by making him "guilty by association." "Severance is not
required merely because evidence that is admissible only against some defendants
may be damaging to others." United States v. Mickelson, 378 F.3d 810, 818 (8th Cir.
2004) (internal citation omitted). Here, the government presented evidence to the jury
that the police apprehended Payton, Hines, and Parks in a drug operation on December
18, 2008. The government also presented evidence that both Payton and Hines were

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caught with "buy" money and cell phones used to call one another and other drug
dealers and users during the course of the operation.

Finally, we reject Payton's assertion that, if he had been tried separately from
Hines, he could have called Hines as a witness because Hines actually testified and
was subject to examination during trial.

Therefore, we hold that the district court did not abuse its discretion in denying
Payton's motion to sever.

B. Batson Challenge
Prior to trial, the parties agreed to permit the magistrate judge to select the jury.
During voir dire, the magistrate judge asked all the prospective jurors whether they
knew any of the lawyers or the defendants. One juror stated that he knew Payton's
counsel and her husband. Payton's counsel confirmed that the juror knew her and her
husband. According to the juror, the "acquaintanceship" was "work related," as he
worked with defense counsel's husband six years ago. The magistrate judge then asked
the juror if that prior working relationship or acquaintanceship with counsel and her
husband would impair his ability to be fair and impartial. The juror replied, "No, sir."

Thereafter, the government used one of its peremptory challenges to excuse the
juror. This was the government's sixth and last challenge. Payton's counsel and Hines's
counsel then lodged a Batson challenge, claiming that the juror is "the only African-
American on the jury." In response, the government asserted that there was "no racial
component" to the challenge because the juror "worked with [Payton's counsel's]
husband for a number of years." According to the government, the juror should not
be put "in a position of having to vote against someone who [he] had worked with
closely for a long time." Payton's counsel then argued that because the government
failed to inquire of the juror "about how he knows [counsel and her husband] or what
he knows about [counsel and her husband]," it "failed to present a neutral explanation

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for the strike of [the juror]." The magistrate judge granted the Batson challenge and
agreed to an immediate appeal to the district court.

The district court rejected the magistrate judge's determination after concluding
that Payton had failed to show that the government's strike was motivated by racial
discrimination.

On appeal, Payton asserts that the district court clearly erred in denying his
Batson challenge because the government's proffered explanation for the
strike—"that's not going to work for the government to have a juror who knows the
defense attorney and her husband"—cannot constitute a race-neutral explanation in
light of the government's failure to inquire of the juror about his relationship with
counsel or her husband.

The Equal Protection clause of the Fourteenth Amendment prohibits the
use of peremptory challenges to strike jurors solely on the basis of race.
Doss v. Frontenac, 14 F.3d 1313, 1316 (8th Cir. 1994) (citing Batson,
476 U.S. at 79, 106 S. Ct. 1712, and Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991)). If a party
makes a prima facie showing that a peremptory challenge is race based,
the proponent must show a race neutral justification to overcome the
objection. Id. The district court then decides whether the objecting party
has shown purposeful discrimination. Id. Since those factual findings
turn largely on credibility evaluations, they are due great deference,
Batson, 476 U.S. at 98 n. 21, 106 S. Ct. 1712, and our review is for clear
error, United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990).

United States v. Ellison, 616 F.3d 829, 831–32 (8th Cir. 2010).

"When, as here, the government offered a nondiscriminatory explanation for the
strikes and the court ruled on the ultimate question of purposeful discrimination, the
preliminary prima facie issue arguably became moot." United States v. Lewis, 593

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F.3d 765, 770 (8th Cir. 2010) (internal quotation, alteration, and citation omitted).
Therefore, we will review "the district court's conclusion that the government's
reasons for striking [the juror] were nondiscriminatory." Id.

Here, the district court did not clearly err in concluding that the government's
reason for striking the juror—knowing defense counsel—was "legitimate and
nondiscriminatory." Id. (holding that district court did not clearly err in finding that
the government's proffered reasons for striking two African-American jurors were
racially neutral where the government explained that it struck the jurors because they,
inter alia, knew a defense witness). A juror's personal acquaintanceship with defense
counsel is a race-neutral basis for concern about a juror's objectivity. Payton has failed
to show that this reason served to merely disguise purposeful discrimination.

C. Exculpatory Evidence
Prior to trial, the government provided Payton with a proposed witness list that
included codefendant Morgan. Morgan pleaded guilty pursuant to a plea agreement
on the afternoon before Payton's trial began. During voir dire, the district court asked
counsel to advise the jury venire of the names of likely trial witnesses, and the
government named Morgan as a potential witness. Although the government never
called Morgan as a witness during trial, it did call Morgan as a witness during
sentencing. Morgan testified that he was "brought to the courthouse for Mr. Hines'[s]
and Mr. Payton's trial" "every day." He also stated that law enforcement officers
interviewed him at the courthouse during that time. According to Morgan, he told the
officers "that Mr. Payton was not involved in the crack cocaine deals" between
Morgan and Hines.

Payton asserts that Morgan's testimony at the sentencing hearing constitutes
exculpatory evidence favorable to Payton that the government failed to disclose. He
contends that Morgan's "new" statement—that Payton was not involved in crack
cocaine deals—was "unavailable" to him because counsel should not be expected to

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investigate a case during the course of trial. According to Payton, the government
made available to him reports and prior interviews concerning Morgan, but Morgan's
"new" testimony contradicted those prior statements insofar as the new information
further exonerated Payton.

In response, the government argues that Payton failed to properly preserve the
issue for appeal and therefore waived it.

A thorough review of the record reveals that Payton never argued to the district
court that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by not
disclosing Morgan's statements. Because Payton failed to raise his Brady claim before
the district court, we review for plain error. United States v. Aleman, 548 F.3d 1158,
1164 (8th Cir. 2008). "To prevail on a plain error standard, [Payton] must show that
the court committed an error that was plain, that affected his substantial rights, and
that seriously affects the fairness, integrity or public reputation of judicial
proceedings." Id. (internal quotations and citations omitted).

The government commits a Brady violation where it suppresses evidence that
is favorable to the accused that is "material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." United States v. Keltner,
147 F.3d 662, 673 (8th Cir. 1998) (internal quotation and citation omitted). "To
establish a Brady violation, a defendant is required to show that: (1) the prosecution
suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the
evidence was material." Id.

"On this record, [Payton] failed to establish a Brady violation, much less plain
error by the district court." United States v. Rouse, 410 F.3d 1005, 1010 (8th Cir.
2005). Payton cannot establish the first element because "[t]he record before the
District Court on the suppression issue is insufficient to show the prosecution
suppressed [Morgan's testimony]." Keltner, 147 F.3d at 673. Although Payton claims

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that Morgan's testimony at sentencing conflicts with his earlier statements, those
earlier statements are not part of the record. Nor was the government afforded the
opportunity to question the interviewing agents about Morgan's pretrial statements.
As a result, Payton cannot show that the government suppressed exculpatory evidence.

D. Jury Instructions
Payton requested two jury instructions that the district court rejected—an
"addict-informant" instruction and a "drug house" instruction.

We review a district court's jury instructions for an abuse of discretion. United
States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010). "In conducting such review,
this court must determine whether the instructions, taken as a whole and viewed in
light of the evidence and applicable law, fairly and adequately submitted the issues in
the case to the jury." Id. (internal quotation and citation omitted).

1. "Addict-Informant" Instruction
Payton requested that the district court instruct the jury that

[i]f a witness who has cooperated with the Government is or was a drug
user, there are reasons his testimony should be considered with great
care. A regular user of narcotics has a constant need for a supply of
drugs and for money to support his habit, and also may have an abnormal
fear of imprisonment in which his supply of drugs might be cut off.
Additionally, a witness who was under the influence of drugs or alcohol
at the time of a particular event, or at the time of their testimony, may
have impaired recollection of that which occurred during that event.
These are special circumstances which you may consider in weighing
testimony of this kind. You, of course, may give the testimony such
weight as you think proper after considering all relevant circumstances.

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 The district court rejected the instruction but did instruct the jury as follows
with regard to witness credibility:

In deciding what testimony of any witness to believe, consider the
witness's intelligence, the opportunity the witness had to have seen or
heard the things testified about, the extent to which drug use or other
conditions affected the ability of the witness to perceive the events
testified about, the witness's memory, any motives that witness may have
for testifying a certain way, the manner of the witness while testifying,
whether that witness said something different at an earlier time, the
general reasonableness of the testimony, and the extent to which the
testimony is consistent with other evidence that you believe.

(Emphasis added.)

On appeal, Payton asserts that the district court erroneously declined his
requested instruction because Castle, Cowan, and Parks were crack cocaine addicts
in 2008.

In United States v. Hoppe, we "decline[d] to adopt . . . a per se rule, but rather
align[ed] with those circuits holding that the circumstances of each case determine the
need for an addict-informant instruction." 645 F.2d 630, 633 (8th Cir. 1981). We
outlined the following factors as "obviat[ing] the need for an addict-informant
instruction: a dispute as to whether the informant is actually an addict, cross-
examination concerning the informant's addiction, an instruction alerting the jury that
an informant's testimony should be viewed with care, and corroboration of the
informant's testimony." Id. (internal citations omitted).

Here, the district court did not abuse its discretion in declining Payton's
requested addict-informant instruction because (1) as Payton concedes, Castle,
Cowan, and Parks were cross-examined about their drug addiction and (2) the district
court instructed the jury that, in assessing the credibility of witnesses, it should

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consider "the extent to which drug use or other conditions affected the ability of the
witness to perceive the events testified about" and "any motives that witness may have
for testifying a certain way." Payton, thus, could have argued effectively to the jury
that the witnesses' credibility should be discounted due to their drug addiction.

2. "Drug House" Instruction
Payton also requested that the district court give the following "drug house"
instruction:

A Defendant opens or maintains a place for the purpose of
manufacturing, distributing, or using crack cocaine if he maintains the
place for the specific purpose, objective, or aim of manufacturing,
distributing, or using the controlled substance. The specific purpose need
not be the sole purpose for which the place is used, but it must be one of
the primary or principal uses of the place.

A particular Defendant must personally have the specific purpose; it is
not sufficient for others to have that purpose.

A Defendant has the required specific purpose if he acted as a supervisor,
manager, or entrepreneur in a drug enterprise, but not if he merely
facilitated the crime.

The Defendant must have a substantial connection to the place, and he
must be more than a casual visitor. He must exercise dominion and
control over the premises. You may consider acts such as control,
duration, acquisition of the place, renting or furnishing the place,
performing repairs, supervising, protecting, supplying food to those
present, and continuity as evidence that a Defendant knowingly opened
or maintained a place for the specific purpose of manufacturing,
distributing or using crack cocaine there.

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 The district court rejected the instruction and instead modeled its instruction
after Eighth Circuit Model Criminal Instruction 6.21.856A. The instruction provided
as follows:

Count 5 of the Indictment charges that:

Beginning in or about November 21, 2008, and continuing until
December 18, 2008, in Scott County in the Southern District of Iowa, the
defendants Sidney Glennard Hines and David A. Payton did knowingly
and intentionally open and maintain a place at 405 West 4th Street,
Apartment 21A in Davenport for the purpose of manufacturing and
distributing cocaine base, also known as "crack".

You must determine whether the government proved both elements of
this crime, which are:

First, beginning in or about November 21, 2008 and continuing until
December 18, 2008, the defendant knowingly opened and maintained a
place at 405 W 4th Street, Apartment 21A in Davenport, Iowa; and

Second, the defendant did so for the purpose of manufacturing or
distributing crack cocaine.

Payton asserts that the district court erred in declining to give his requested
instruction because the record contained no evidence showing that he was anything
more than a casual visitor to Parks's apartment. According to Payton, he only stayed
at Parks's apartment "a few nights," "off and on," had no key or door code to the
apartment, did not help purchase food or pay rent; did not clean or repair the
apartment, and only occasionally went to the apartment to "get high." Payton asserts
that no evidence demonstrates that he had a specific purpose to use Parks's apartment
for drug distribution activities; instead, he argues that the evidence shows that he was
merely a "doorman" for Hines and Parks.

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 We find no error in the district court's instruction, as the instruction accurately
stated the elements needed to prove a violation of 21 U.S.C. § 856(a)(1). "The offense
of maintaining a drug-involved premises under 21 U.S.C. § 856(a) requires proof that
the defendant 'knowingly open, lease, rent, use, or maintain any place, whether
permanently or temporarily, for the purpose of manufacturing, distributing, or using
any controlled substance . . . .'" United States v. Russell, 595 F.3d 633, 642 (6th Cir.
2010) (quoting 21 U.S.C. § 856(a)(1)) (emphasis added in Russell). "The meaning of
th[e] phrase ['the purpose'] lies within the common understanding of jurors and needs
no further elaboration." United States v. Roberts, 913 F.2d 211, 220 (5th Cir. 1990).

E. Sufficiency of the Evidence
Payton argues that the government failed to adduce sufficient evidence to
support his convictions for conspiracy to manufacture and distribute drugs, opening
or maintaining a drug house, and distribution of drugs.

"We review the sufficiency of the evidence de novo, viewing the evidence in
the light most favorable to the government, resolving evidentiary conflicts in the
government's favor, and drawing all reasonable inferences in favor of the jury's
verdict." United States v. Kieffer, 621 F.3d 825, 832 (8th Cir. 2010) (internal quotation
and citation omitted).

1. Conspiracy
According to Payton, insufficient evidence exists to convict him of conspiracy
under 21 U.S.C. § 846 because, although the indictment charged him with conspiracy
to manufacture, distribute, or possess with intent to distribute 50 grams or more of
crack cocaine, the jury only found him responsible for five grams to less than 50
grams. Payton asserts that the jury's finding is important because, in determining drug
quantity culpability for the conspiracy, the jury requested of the court "the weight of
Drugs found and in evidence by Incident." According to Payton, this showed the jury
was examining each "incident" to determine the quantity attributable to him. Payton

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maintains that this fact is important because much of the trial evidence did not include
any mention of Payton, as Hines did not meet Payton until late September 2008.
According to Payton, only Parks—an individual who lied to the police when arrested
and with a significant motivation to minimize his own involvement—claimed that
Payton assisted Hines in dealing narcotics.

"To establish that a defendant conspired to distribute drugs under 21
U.S.C. § 846, the government must prove: (1) that there was a
conspiracy, i.e., an agreement to distribute the drugs; (2) that the
defendant knew of the conspiracy; and (3) that the defendant
intentionally joined the conspiracy." United States v. Jiminez, 487 F.3d
1140, 1146 (8th Cir. 2007) (quoting United States v. Espino, 317 F.3d
788, 792 (8th Cir. 2003)).

United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009).

Payton concedes that Parks testified that Payton assisted Hines in dealing
narcotics but implies that Parks cannot be believed because of a motivation to
minimize his involvement. But "[t]he jury is responsible for assessing the credibility
of witnesses and resolving conflicts in testimony, and its conclusions on these issues
are virtually unreviewable on appeal." United States v. Jackson , 610 F.3d 1038, 1042
(8th Cir 2010) (internal quotations and citations omitted). Furthermore, as the
government notes, Parks, Cowan, Castle, and Lueders all testified that Payton
distributed crack cocaine, and Parks and Cowan identified Hines as Payton's crack
supplier, describing how Payton and Hines sold drugs together. The government
produced evidence that Payton gave Hines a cell phone, which Hines used to conduct
the drug business. This cell phone was the same one that Hines attempted to flush
down the toilet during the police raid. Accordingly, sufficient evidence exists to
support the jury's conspiracy verdict.

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 2. Opening or Maintaining a Drug House
Payton next argues that a reasonable jury would have concluded that he did not
maintain a drug house at Parks's apartment because he did not have a specific purpose,
objective, or aim to maintain that apartment for manufacturing, distributing, or using
drugs. He asserts that mere presence and mere facilitation of the crime, i.e., opening
the door for Morgan, is insufficient to prove that he had a specific purpose.
Furthermore, he asserts that he was only a casual visitor who lacked "dominion or
control" over the apartment, as he was not on the lease, did not pay rent or buy food,
and did not clean or perform repairs on the apartment.

As explained supra, "[t]he offense of maintaining a drug-involved premises
under 21 U.S.C. § 856(a) requires proof that the defendant 'knowingly open, lease,
rent, use, or maintain any place, whether permanently or temporarily, for the purpose
of manufacturing, distributing, or using any controlled substance . . . .'" Russell, 595
F.3d at 642 (6th Cir. 2010) (quoting 21 U.S.C. § 856(a)(1)) (emphasis added in
Russell). "The purpose element [of § 856(a)(1)] applies to the person who is charged
with maintaining the place for the illegal activity. It is not sufficient that others
possess the requisite purpose." United States v. Pineiro, 389 F.3d 1359, 1367 (11th
Cir. 2004) (internal quotation and citation omitted). "'[S]ection 856(a)(1) does not
require that drug distribution be the primary purpose, but only a significant purpose.'"
Russell, 595 F.3d at 642 (quoting United States v. Soto-Silva, 129 F.3d 340, 346 n.4
(5th Cir. 1997)) (citing United States v. Church, 970 F.2d 401, 406 (7th Cir.1992)
(rejecting argument that government cannot obtain a conviction under § 856 if drug
distribution is "but one of several uses of a residence")).

A defendant's mere presence during a police search of a residence is insufficient
to sustain a conviction under § 856(a)(1). Roberts, 913 F.2d at 220. "[W]hether a
defendant has 'maintained' a place is necessarily a fact-intensive issue that must be
resolved on a case-by-case basis." United States v. Morgan, 117 F.3d 849, 857 (5th
Cir. 1997).

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 [P]roof of a defendant's "dominion and control" over a place may be
sufficient to show that he "maintains" that place, see United States v.
Howell, 31 F.3d 740, 741 (8th Cir. 1994) (per curiam), but . . . proof of
"dominion and control" is not necessary to establish "maintenance"
under section 856(a)(1), see United States v. Clavis, 956 F.2d 1079,
1091, modified on other grounds, 977 F.2d 538 (11th Cir. 1992), cert.
denied, __U.S.__, 113 S. Ct. 1619, 123 L. Ed. 2d 178 (1993). In Clavis,
the Eleventh Circuit stated that "[a]cts evidencing such matters as
control, duration, acquisition of the site, renting or furnishing the site,
repairing the site, supervising, protecting, supplying food to those at the
site, and continuity" are relevant to the defendant's "maintenance" of a
place. 956 F.2d at 1091.

United States v. Basinger, 60 F.3d 1400, 1405 (9th Cir. 1995).

Here, when asked what was occurring at Parks's apartment, Cowan stated,
"Drugs were being sold there also by Mr. Hines and David [Payton]." When asked to
explain "how that worked," Cowan replied:

Well, one night Mr. Hines was there and people would either call on the
phone or come knock at the door. David would answer the door, and he
would get the drugs from P [Hines], and he would give—David would
give him the money, and then he would give people their drugs, and they
left. Sometimes they sat around and smoked, but not very often.

Cowan said that she witnessed this scenario on two occasions.

In addition to Cowan's testimony, Parks testified that in November 2008, he did
not "purposefully" make his apartment available to other people for illegal purposes
"but that's what was happening." According to Parks, "David Payton" approached him.
At first, Payton just "smoked some crack" with Parks in his apartment. Thereafter,
Parks testified that "[Hines] came over with [Payton], and they was sitting there
watching movies and things like that, and they promised me they wasn't selling no

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drugs out of my house." But Parks could "tell what was going on" because "the phone
would ring and then [Payton] would go downstairs and come back up." Parks stated
that Hines and Payton came to his apartment "two days out of the week" and that
"[s]ome days maybe they might go downstairs six times, sometimes maybe just four
times, something like that." According to Parks, either Hines's or Payton's phone
would ring. When Hines's phone would ring, he would go downstairs, while Parks
stayed upstairs. On one or two occasions, Parks saw a couple of bags of crack cocaine
exchanged between Hines and "one of his friends." When asked what Payton would
do, Parks replied, "He would go out the door, come on back." Payton would
"sometimes" "hand [Hines] a few dollars." Parks confirmed that he obtained crack
cocaine from Hines "a few times." When asked whether he received payment for
letting Hines and Payton deal crack cocaine from his apartment, Parks replied, "No,
not as far as no money or—not no money or nothing like that. Maybe a—it wasn't
established that [Hines] was selling out of my house, so he would give me a bag
sometimes or [Payton] would give it to me." Parks knew that Hines was selling drugs
from his apartment because "the phone rings and a person goes downstairs and do this
a couple of times, you figure they're selling drugs." On a couple of occasions,
"customers started getting in and coming all the way up to [Parks's] apartment." Those
"customers" "would meet with Sidney Hines or either David Payton." According to
Parks, there would be times when he would be out and, when he got home, Hines and
Payton would be there.

Finally, the government produced evidence that on December 18, 2008,
Morgan, working under Detective Proehl's direction, arranged to purchase $300 worth
of crack cocaine from Hines. Morgan placed recorded calls to Hines, and Hines
advised Morgan to meet him at Parks's apartment. Payton met Morgan at the door and
followed him up the stairs to Parks's apartment. A short time later, Morgan gave
Detective Proehl 20 individually wrapped rocks of crack cocaine.

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 Based on the testimony of Cowan, Parks, and Detective Proehl, a reasonable
jury could find that Payton "knowingly open[ed] . . . or maintain[ed] [Parks's
apartment] for the purpose of . . . distributing . . . [a] controlled substance." 21 U.S.C.
§ 856(a)(1). Both Cowan and Parks testified that Payton was selling drugs out of
Parks's apartment, which satisfies the "purpose" element of § 856(a)(1). Parks's
testimony establishes, and Detective Proehl's testimony confirms, that Payton
"maintained" the site. Parks described how Hines and Payton routinely sold drugs out
of Parks's apartment. And, although Payton did not pay rent to or monetarily reward
Parks for use of his apartment, Parks testified that either Hines or Payton would give
him a bag of crack cocaine in exchange for their use of his apartment.

Accordingly, sufficient evidence exists to support Payton's conviction under §
856(a)(1).

3. Distribution
Payton also alleges that the evidence is insufficient to support his conviction for
distribution or possession with intent to distribute crack cocaine because he was found
with no more than a crack pipe on his person, was merely a crack addict, was
homeless, and only went to Parks's apartment to "get high" on December 18, 2008.
According to Payton, the evidence shows that he was not present in the kitchen when
Morgan was purchasing the drugs from Hines.

"In order to convict [Payton] on the distribution count[ ], the government was
required to prove beyond a reasonable doubt [Payton] knowingly and intentionally
distributed [crack cocaine]." United States v. Bolden, 596 F.3d 976, 981 (8th Cir.
2010). For the same reasons as explained supra with regard to the § 856 charge,
sufficient evidence exists to support the jury's verdict on the distribution charge.
Cowan and Parks testified that Payton was selling drugs from Parks's apartment.
Parks's testimony also established the routine that Hines and Payton followed in
selling the drugs. This "routine" was followed on December 18, 2008, when Morgan

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came to Parks's apartment to purchase crack cocaine. Therefore, sufficient evidence
supports Payton's conviction for distribution.

F. Drug Quantity
The presentencing report (PSR) recommended that the district court find Payton
responsible for 181.24 grams of crack cocaine. Section 2D1.1(c)(4) of the Guidelines
provides that an offense involving possession with intent to distribute at least 150
grams but less than 500 grams of crack cocaine yields a base offense level of 32.

Before the district court, and on appeal, Payton objected to the drug quantity
calculations found in several paragraphs of the PSR, contending: (1) he did not
participate in the October 19, 2008 transaction and should not be held accountable for
0.3 grams of crack cocaine; (2) no lab report confirmed the drug quantity for the
October 19, 2008 transaction; (3) he did not participate in the December 18, 2008 drug
transaction and should not be held accountable for the 4.06 grams of crack cocaine
sold to Morgan, the 1.71 grams of crack cocaine that Hines flushed down the toilet
during the raid, or the 0.17 grams of crack cocaine found on the floor, immediately
beneath Parks; (4) he should not be held accountable for 69.75 grams of crack cocaine
based on Parks's testimony because Parks is unreliable; (5) he cannot be held
responsible for Hines's drug activities that occurred prior to Payton joining the
conspiracy and therefore is not responsible for 75 grams of crack cocaine based on
Morgan's unsworn statement that he bought 15 to 20 grams of crack cocaine, twice a
day, four to five times a week, from Hines; (6) he never paid Parks a rock of crack
cocaine to refer customers and accordingly is not responsible for 0.25 grams of crack
cocaine based on Parks's unreliable statement; and (7) he was not involved with
Hines's distribution activities with Hester and Castle and cannot be held responsible
for 30 grams of crack cocaine.

In response, the government argues that the district court did not clearly err in
finding Payton responsible for 180 grams of crack cocaine. The government notes that

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the critical drug amount for purposes of this appeal is 50 grams of crack cocaine
because 21 U.S.C. § 841(b)(1)(A) addresses violations involving 50 grams or more,
and the statutory minimum is 20 years.3

We review for clear error a district court's drug quantity calculation. United
States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir. 2006). The government must
prove drug quantity by a preponderance of the evidence. Id.

"When calculating drug quantity in the context of a narcotics trafficking
conspiracy, the sentencing court may consider all transactions known or reasonably
foreseeable to the defendant that were made in furtherance of the conspiracy. " Id.
Coconspirators' testimony "may be sufficiently reliable evidence upon which the court
may base its drug quantity calculation for sentencing purposes." Id.

3
In a Federal Rule of Appellate Procedure 28(j) letter to the court, Payton
asserts that § 841(b)(1)(A) previously required that a defendant be involved with 50
grams of crack cocaine to trigger a mandatory minimum of 10 years and that if the
defendant had a prior drug felony conviction, the mandatory minimum became 20
years. He notes that the Federal Sentencing Act of 2010 changed the 50-gram
threshold to 280 grams, meaning that the assessment of 181 grams of crack cocaine
to him would be insufficient to trigger the 20-year mandatory minimum. As a result,
he asks that we vacate his sentence and remand for resentencing in accordance with
the new mandatory minimum. But the Act is not subject to retroactive application. See
United States v. Brown, No. 10-1791, 2010 WL 3958760, at *1 (8th Cir. Oct. 12,
2010) (unpublished per curiam) (stating that "the statutory minimum existing at the
time the offense was committed governs") (citing United States v. Carradine, 621
F.3d 575, 580 (6th Cir. 2010) (holding that general savings statute, 1 U.S.C. § 109,
requires application of penalties in place at time crime was committed unless new
enactment expressly provides for its own retroactive application and recognizing that
Fair Sentencing Act of 2010 contains no express statement that it is retroactive and
that no such express intent can be inferred from its plain language)).

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 A defendant "may be held responsible" for "'all acts . . . that were part of the
same course of conduct or common scheme or plan as the offense of conviction.'"
United States v. Anderson, 243 F.3d 478, 485 (8th Cir. 2001) (quoting U.S.S.G.
§ 1B1.3(a)(2)). In applying § 1B1.3(a)(2), the sentencing court "should consider the
similarity, regularity, and temporal proximity of the conduct in determining whether
it is part of the same course of conduct or common scheme or plan." Id. (internal
quotations and citations omitted).

When the quantity of drugs that the government seized "does not reflect the
scale of the drug trafficking offense," then the sentencing court must "approximate the
quantity of the controlled substance for sentencing purposes." United States v.
Sicaros-Quintero, 557 F.3d 579, 582 (8th Cir. 2009) (internal quotation and citation
omitted). "The court may make a specific numeric determination of quantity based on
imprecise evidence." Id. (internal quotation and citation omitted). The court is
permitted to "'consider relevant information without regard to its admissibility under
the rules of evidence applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.'" Id. (quoting U.S.S.G.
§ 6A1.3(a)).

Additionally, where a defendant is "charged with conspiracy to distribute [a
controlled substance] . . . the amount consumed for personal use should be included
in the total." United States v. Kamerud, 326 F.3d 1008, 1013 (8th Cir. 2003). By
contrast, "[d]rugs acquired for personal use are not relevant conduct when [the] charge
is for possession with intent to distribute." Id. (citing United States v. Fraser, 243 F.3d
473, 475–76 (8th Cir. 2001)).

Here, Payton was not only charged with distribution but also with conspiracy
to distribute; therefore, his personal use amounts may be included in the total. See
Kamerud, 326 F.3d at 1013. As the government points out, Payton testified that he

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consumed crack cocaine "all day, everyday" and spent $650 a month on crack cocaine;
this testimony alone could support a drug quantity of over 50 grams of crack cocaine.

Furthermore, Payton based many of his objections to the drug quantity
calculations in the PSR on witness credibility attacks. For example, Payton asserts that
Parks's testimony is unreliable. Parks's testimony, in total, attributed approximately
70 grams of crack cocaine to Payton. The district court could base its drug quantity
determination on Parks's testimony, and its assessment of Parks's "credibility is almost
never clear error given that court's comparative advantage at evaluating credibility."
Plancarte-Vazquez, 450 F.3d at 852 (internal quotation and citation omitted).

Finally, the government presented evidence at trial and sentencing of other
transactions with drug quantities attributable to Payton. Specifically, the evidence
showed that Hines brought Payton to Hester's residence in August 2008, Payton's cell
phone called Hines's and Hester's numbers on numerous occasions between July and
December 2008, Payton drove Hines to drug transactions on at least seven occasions
where five or six $20 bags of crack cocaine were delivered to Morgan, and Payton
aided Hines in the distribution of crack cocaine from Parks's residence, including the
crack cocaine sold to Morgan on December 18, 2008. Payton's conspiracy conviction
makes him responsible for all these transactions, which were reasonably foreseeable
and conducted in furtherance of the drug conspiracy. See Plancarte-Vazquez, 450 F.3d
at 852.

Given the "scale of the drug trafficking offense," the district court's calculation
of drug quantity was not clearly erroneous. See Sicaros-Quintero, 557 F.3d at 582.

G. Aggravating Role Enhancement
The district court applied an aggravating role enhancement under U.S.S.G.
§ 3B1.1(b). Payton maintains that no evidence exists that he recruited, directed the
activities of, or exercised management responsibility over others who ultimately

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worked for Hines. According to Payton, no evidence exists that he had any
decisionmaking authority in Hines's business because Payton had no authority to
negotiate incoming shipments, set the price for sale to Hines's customers, arrange
delivery locations, or make any other judgments for Hines. Payton asserts that the
evidence establishes that he was merely a driver or deliverer for Hines and did not
profit from these activities.

In response, the government argues that the district court did not clearly err in
applying an aggravating role enhancement because Payton recruited Parks to bring
him crack customers, paid Parks with cigarettes, liquor, or small amounts of crack
cocaine, brought Hines to Parks's apartment to set up the drug operation, and brought
Bowes into the conspiracy, as evidenced by Lueders's testimony.

A district court may increase a defendant's offense level by three levels "if the
defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive."
United States v. Bolden, 622 F.3d 988, 990 (8th Cir. 2010) (internal quotations,
alteration, and citations omitted). "We construe the terms 'manager' or 'supervisor'
broadly under U.S.S.G. § 3B1.1, and the simple fact that a defendant recruits new
members into a conspiracy supports a finding of the defendant being a manager or
supervisor." Id. (internal quotations and citations omitted). Application Note 4 to
U.S.S.G. § 3B1.1 sets forth factors that the sentencing court should consider, which
are:

the exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised
over others. There can, of course, be more than one person who qualifies
as a leader or organizer of a criminal association or conspiracy. This

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 adjustment does not apply to a defendant who merely suggests
committing the offense.

Under § 3B1.1, a "participant" is one "who is criminally responsible for the
commission of the offense, but need not have been convicted." United States v.
Garcia-Hernandez, 530 F.3d 657, 664 (8th Cir. 2008) (internal quotation and citation
omitted). "Participants include intermediaries who sell drugs on behalf of the
defendant." Id. (internal quotation, alteration, and citation omitted). "For a sentencing
court to impose a managerial or supervisory role enhancement there must be sufficient
evidence from which to find that the defendant controlled at least one other participant
in the drug trafficking offense." Plancarte-Vazquez, 450 F.3d at 853 (internal
quotation and citation omitted).

We review for clear error "[t]he district court's factual findings, including its
determination of a defendant's role in the offense," and we review de novo its
"application of the guidelines to the facts." Bolden, 622 F.3d at 990 (internal quotation
and citation omitted). The government must prove the applicability of the sentencing
enhancement by a preponderance of the evidence. Id.

Here, Payton virtually concedes that the conspiracy involved five or more
participants: Hines, Payton, Parks, Parkerson, and Morgan.4 Furthermore, sufficient
evidence exists in the record that Payton controlled at least one participant—Parks.
Payton recruited Parks to bring him customers, paying him in cigarettes, liquor, or
small amounts of crack cocaine. Furthermore, the evidence established that Payton
brought Hines to Payton's apartment to set up their drug operation. See supra Part E.2.

4
In his brief, Payton asserts that "[a]t most, the government may be able to
prove that Hines was the leader, and during the time Payton was involved, Hines
directed the activities of: Payton, Parks, Parkerson, and Morgan."

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 Therefore, we hold that the district court did not err in applying the aggravating
role enhancement.

H. Disparity Between Powder Cocaine and Crack Cocaine
Payton's final challenge is to the reasonableness of his sentence, arguing that
the district court erred in refusing to vary downward from the Guidelines to ameliorate
the unfairness of the crack-to-powder cocaine ratio in U.S.S.G. 2D1.1. Payton notes
that the Fair Sentencing Act of 2010, signed into law on August 3, 2010, adjusts the
quantity of crack cocaine necessary to trigger the mandatory minimum sentence and
directs the Sentencing Commission to revise the Guidelines for crack cocaine.

"We review the reasonableness of a defendant's sentence under a deferential
abuse-of-discretion standard, ensuring that the district court committed no significant
procedural error and that the sentence is substantively reasonable." United States v.
Brewer, 624 F.3d 900, 908–09 (8th Cir. Oct. 21, 2010) (internal quotations and
citations omitted).

"Here, the district court considered and rejected [Payton's] request for a
variance based on the crack/powder disparity. Thus, the district court was well within
its discretion not to vary downward." Id. at 909 (internal quotation, alteration, and
citation omitted). Furthermore, "the Fair Sentencing Act contains no express statement
that it is retroactive, and thus the general savings statute, 1 U.S.C. § 109, requires us
to apply the penalties in place at the time the crime was committed." Id. at 909 n.7
(internal quotation and citations omitted). Finally, Payton's prior felony drug
conviction compels a mandatory minimum sentence of 240 months' imprisonment.
"District courts lack the authority to reduce sentences below congressionally-
mandated statutory minimums." United States v. Watts, 553 F.3d 603, 604 (8th Cir.
2009).

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 III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________

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