United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1344
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Andrew Jones, *
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Appellant, *
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v. *
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United States of America, *
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Appellee. *
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Appeals from the United States
No. 97-2235 District Court for the
_____________ Eastern District of Missouri.
Felton J. Sykes, *
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Appellant, *
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v. *
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United States of America, *
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Appellee. *
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Submitted: January 12, 1998
Filed: May 27, 1998
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Before BOWMAN, Chief Judge, BRIGHT, Circuit Judge, and JONES1, District Judge.
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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.
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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
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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
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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 “