United States of America, Plaintiff-Appellee-Cross-Appellant v. Carland A. Bowser, Defendant-Appellant-Cross-Appellee

*1021PER CURIAM.

Defendant Carland A. Bowser was convicted of two counts of distribution of a Schedule II narcotic, crack cocaine, pursuant to 21 U.S.C. 841(a)(1).1 On appeal, defendant challenges the admission of certain evidence and the court’s prohibition of his attempted cross-examination concerning the identity of a confidential informant. On cross-appeal, the government challenges the district court’s downward departure from the applicable sentencing guideline.2 We affirm.

On January 10, 1990, defendant made a hand-to-hand sale of 2.7 grams of crack cocaine to an undercover agent of the federal Bureau of Alcohol, Tobacco, and Firearms. The next day, he made a second hand-to-hand sale of 6.6 grams of crack cocaine to the same agent. Both sales were witnessed by another undercover agent.

During the second sale, the agent was “wired” with a sound transmitter, and the entire transaction was tape recorded. After the second sale, defendant attempted to evade arrest by running into a nearby department store, where his flight with police pursuit and his capture and arrest were videotaped by the store’s in-house security system.3

Following his conviction, defendant unsuccessfully moved for a new trial, a request he renews here on appeal. Defendant first argues that the admission of certain testimony by one of the undercover agents was irrelevant and prejudicial in contravention of Fed.R.Evid. 402 and 403. The agent testified that a confidential informant told him defendant carried a gun during drug transactions and defendant would like to kill the undercover agent. R.Vol. Ill at 29-30.

We review questions concerning the admission of evidence under an abuse of discretion standard. United States v. Cooper, 733 F.2d 1360, 1366 (10th Cir.), cert. denied sub nom. Threat v. United States, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984) (admission of evidence); see also United States v. Silverstein, 737 F.2d 864, 866 (10th Cir.1984) (“Balancing the probative value of evidence against its prejudicial effect is within the sound discretion of the trial court.”). Because defendant did not object to admission of this testimony at trial, we review for plain error. Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). Plain errors are those errors that when viewed against the entire record “ ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1984) (citation omitted); accord United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986).

We hold that the evidence was not hearsay because it was not introduced for the purpose of proving defendant carried a gun or intended to kill the agent. Fed. R.Evid. 801(c). The statements were introduced merely to explain the officer’s aggressive conduct towards the defendant. In that context the statements were relevant.

Second, defendant claims a violation of his Sixth Amendment right to confronta*1022tion when the district court sustained the government’s objection to defense counsel’s demand that a witness identify a confidential informant. At trial, an undercover agent testified that the agents made contact with defendant through information provided by a confidential informant. Defense counsel attempted to cross-examine the agent about the identity of the informant, but the court sustained the government’s objection, citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Defendant claims this ruling to have been an abuse of discretion, if not an abridgement of his Sixth Amendment right of confrontation.

The right of cross-examination is fundamental. However, any reversal of a conviction on the basis of undue limitation upon cross-examination must demonstrate a denial of a due process right of confrontation as guaranteed in the Sixth Amendment, or an abuse of discretion by the trial court in limiting cross-examination. The exercise of discretion by the trial court will not be upset unless it is determined to be clearly prejudicial.

United States v. Walton, 552 F.2d 1354, 1364 (10th Cir.) (citations omitted), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977). We hold that the trial court was correct in this matter, although for different reasons than those articulated from the bench.4

Determination of whether the identity of a confidential informant must be disclosed on cross-examination requires a case-by-case balancing of the public interest in protecting the flow of information from informants to the police against the individual’s right to prepare his defense with relevant, helpful information essential to the fair determination of a cause. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. Revelation of the identity of an informant is compelled by the Sixth Amendment only when the informant’s testimony might be relevant to the charges against defendant, or when the informant was a witness to or participant in the charged conduct. United States v. Freeman, 816 F.2d 558, 562 (10th Cir.1987); United States v. Halbert, 668 F.2d 489, 496 (10th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982). The informant in the present case did not testify at trial, nor was he or she a witness to the two sales of crack cocaine. In addition, defendant made no showing that direct confrontation with the informant would assist defendant in his attempt to establish his defense at trial, that of duress, or that his case was prejudiced by the government’s refusal to identify this informant. We conclude that defendant suffered no constitutional violation when the court denied his demand for the identity of the undercover agent’s source of confidential information and decline to remand for new trial.

Turning to the cross-appeal, the government urges that the district court erred in its downward departure from the sentencing guidelines. The drug sales of which defendant was convicted were not his first criminal offense. In 1984, when he was twenty years old and a student on athletic scholarship at a junior college, defendant was charged in Sedgwick County, Kansas, with conspiracy to commit armed robbery, aggravated robbery, and kidnapping. Within two months, during the time he was released on bond pending trial on those charges, he was arrested for aggravated robbery in Montgomery County, Kansas. He pled guilty to all charges and was sentenced by each court to prison terms of five to twenty years. The court in Montgomery County originally released defendant to probation, but later ordered that his second *1023sentence be served concurrent with the Sedgwick County sentence. He had no other criminal record of either arrests or convictions as a juvenile or as an adult.

Under the sentencing guidelines, defendant’s sentence for his current offenses would have been nearly tripled by the enhancement as a career offender:

[T]he presentence report assigned three points for each prior conviction, pursuant to guideline § 4Al.l(a). The report then added two points because Mr. Bowser committed the instant offense while on parole from his state sentence, see U.S.S.G. § 4Al.l(d), and one more point because he committed the instant offense less than two years after release from imprisonment on the state sentence. See U.S.S.G. § 4Al.l(e). This resulted in nine total points, for a criminal history category of IV. Coupled with an offense level of 26 based on the quantity of cocaine base involved, this yielded a guideline range of 92 to 115 months — 7.6 to 9.5 years.
... Because Mr. Bowser’s two prior convictions qualified as crimes of violence within the meaning of guideline § 4B1.1, he was classified as a career offender. This classification raised his criminal history category from IV to VI and his offense level from 26 to 34, yielding a new guideline range of 262 to 327 months — 21.8 to 27.2 years.

Appellant’s opening brief at 12-13 (citations omitted).

Pursuant to United States Sentencing Commission, Guidelines Manual, § 4A1.3 (Nov. 1989),5 the district court found that although defendant technically fit within the definition of a career offender, his history of criminal conduct was significantly less serious than that of most defendants categorized as career offenders. The court stated: “I’m going to find that the two prior felony convictions both occurred ... when he was 20 years of age and within two months of each other. I think to consider him a career offender under those circumstances would be unjust.... He also received concurrent sentences for those offenses.” R.Vol. IV at 7. The court sentenced defendant to the penalty under the guidelines for his drug sales with his criminal history but without the enhancement of the career offender categorization.

The Sentencing Reform Act allows a sentencing court to depart from the guidelines if “the court finds that there exists [a] ... mitigating circumstance of a kind, or to a degree, not adequately take" into consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b). As a threshold issue, we agree with the Eighth and Ninth Circuits that the Sentencing Guidelines permit the district court to depart downward from career offender status. See United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir.1990); United States v. Smith, 909 F.2d 1164, 1169 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 691, 112 L.Ed.2d 682 (1991); United States v. Brown, 903 F.2d 540, 545 (8th Cir.1990); see also United States v. Maddalena, 893 F.2d 815, 817-18 (6th Cir.1989) (permitting downward departure from career offender status); United States v. Garrett, 712 F.Supp. 1327, 1334-35 (N.D.Ill.1989) (same), aff'd, 903 F.2d 1105 (7th Cir.), cert. denied, — U.S.-, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990).

In United States v. Maldonado-Campos, 920 F.2d 714 (10th Cir.1990), this court set forth a three-part test for evaluation of downward departures from the sentencing guidelines:

Downward departures based upon criminal history are made pursuant to 18 U.S.C. § 3553(b) and are reviewed under the same three-part test for evaluating *1024upward departures_ We first determine de novo whether the circumstances admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure. Next, we review the district court’s factual determinations supporting departure under the clearly erroneous standard. Finally, under 18 U.S.C. § 8742(e)(3) we determine whether the degree of departure was reasonable.

Id. at 719-20 (footnotes and citations omitted); cf. United States v. White, 893 F.2d 276, 277-79 (10th Cir.1990) (setting forth the three-part test for upward departures).

Applying these factors to the present case, the sentencing guidelines explicitly acknowledge that over-representation of the seriousness of a defendant’s criminal history is an appropriate consideration for downward departure. See U.S.S.G. § 4A1.3 (policy statement).6 Thus, the district court’s rationale here is a permissible basis for departure from strict adherence to the guidelines. See Maldonado-Campos, 920 F.2d at 719 (acknowledging downward departure for over-representation of the seriousness of a defendant’s criminal history as a departure “guided” by the guidelines themselves).

The district court stated three reasons for its conclusion that when the guidelines’ formulas were applied to defendant’s individual circumstances his criminal history was significantly over-represented. The court stated that defendant’s two previous convictions (a) were committed when he was merely twenty years old, (b) were committed within two months of each other, and (c) were punished by concurrent sentences in the Kansas courts. The district court is only permitted to consider these factors in departure analysis if it finds the mitigating circumstances, in kind or degree, were not adequately considered by the Sentencing Commission in formulating the guidelines. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0 (policy statement). Thus, we consider each factor utilized here by the district court, mindful that a single mitigating circumstance is sufficient to justify its determination that downward departure was appropriate. Smith, 909 F.2d at 1169. The issue, however, is whether the reasons employed by the trial court, taken together as the trial judge did, justify downward departure.

First, the guidelines advise that “[a]ge is not ordinarily relevant in determining whether a sentence should be outside the guidelines.” U.S.S.G. § 5H1.1. However, courts’ interpretation of this guidance has varied as widely as the rigidity with which the courts view the guidelines themselves. Compare United States v. Shoupe, 929 F.2d 116, 120 (3d Cir.1991) (“Although this policy statement does not completely prohibit departures based upon age, it proscribes such departures except in extraordinary circumstances.”) with Smith, 909 F.2d at 1169 (“While age is not ‘ordinarily relevant,’ U.S.S.G. § 5H1.1, it gathers meaning when assessing the circumstances of a criminal’s career. [The defendant's criminal] career began and ended (for guideline purposes) near the eighteen-year threshold.”) It is our interpretation that, without more, age is insufficient as a mitigating factor, but taken in the context of the other circumstances of a defendant’s criminal history, it could be germane to whether the career offender category is appropriately applied to an individual defendant.

Our analysis is similar when applied to the district court’s use of the close proximity in time between the acts from which defendant’s first two convictions arose. The guidelines themselves do not specifically address the issue, and it is our *1025conclusion that this factor would have been unsuitable as an isolated rationale for downward departure. Accord United States v. Williams, 891 F.2d 962, 966 (1st Cir.1989) (short time span between previous robberies, on different days and in different places, rejected as weighting factor in sentencing); cf. United States v. Harrison, 918 F.2d 30, 31 (5th Cir.1990) (rejecting defendant’s request for mitigation stemming from the fact that all five of her previous drug-related convictions had occurred in a two-year period); U.S.S.G. Ch. 3, pt. D (multiple counts), intro, comment. (guidelines for robbery “are oriented more toward single episodes of criminal behavior” rather than infractions considered to be repetitive, such as theft, fraud and drug offenses). However, the district court did not consider the short period of time between defendant’s two previous robbery convictions in isolation. Rather, the court viewed the short time span in the context of defendant’s age and the state court’s treatment of the two convictions. Because the relationship of the factors the court considered in determining the appropriate criminal history for defendant was carefully considered and explained by the district court, we conclude that use of this factor as part of the composite rationale for downward departure in defendant’s criminal history was not error.

Third, the district court noted that defendant had a history of two convictions but had been sentenced to concurrent sentences for these convictions. The guidelines are not clear how this circumstance should be considered. U.S.S.G. § 4A1.2(a)(2), applic. n. 3, advises that cases consolidated for sentencing can result in an under-representation of a defendant’s criminal history. It concludes with the statement: “In such circumstances the court should consider whether departure is warranted. See § 4A1.3.” This application note does not specifically address the question of whether separate convictions with concurrent sentences imposed because of proximity in time between the crimes could misrepresent the seriousness of the defendant’s criminal history. We can find assistance, however, in the guidelines’ own cited policy statement on the adequacy of criminal history category, § 4A1.3, which implies that the Commission was aware that consolidated sentencing, here extrapolated into concurrent sentences by different state courts, is generally appropriate for judicial adjustment to fit individual circumstances.

We conclude that this unique combination of factors in defendant’s criminal history was not considered sufficiently by the Sentencing Commission to justify rigid application of the career offender criminal history categorization. See Williams, 891 F.2d at 964 (“ ‘there must be something “special” about a given offender, or the accoutrements of the crime committed, which distinguishes the case from the mine-run for that offense.’ ”) (citation omitted). We hold that the district court did not err in considering these three factors in combination to determine whether downward departure was appropriate. In reaching this conclusion, we emphasize that it is all three factors in conjunction which justify the trial court’s judgment. We cannot parse the factors, holding each one separately for consideration, without unfairly abusing the trial court’s judgment.

Continuing to the second prong of the Maldonado-Campos analysis, there is no dispute about the accuracy of the district court’s specific and individualized factual determinations supporting departure. The government concedes that defendant’s criminal history was composed solely of two incidents, less than two months apart, which defendant perpetrated at twenty years of age and for which he was sentenced to concurrent state prison terms. Brief of [cross-jappellant at 9. The district court explicitly concluded that by departing downward to the original offense level and criminal history category, computed prior to defendant’s classification as a career offender, the sentence of ninety-six months would “more accurately reflect the defendant’s true criminal history and achieve the sentencing objectives of punishment, general deterrence and incapacitation.” R.Vol. *1026IV at 10.7 The district court’s factual determination was not clearly erroneous.

Finally, under Maldonado-Campos we must determine whether the degree of downward departure was reasonable. The government argues that the sentence imposed on defendant was unreasonable under the defendant’s individual history, citing 18 U.S.C. § 3742(e)(3).8 This circuit has consistently supported a deferential standard of review of district court decisions about degree of departure. For example, “in determining the reasonableness of the degree of departure ... we should afford the trial judge due deference and not ‘lightly overturn determinations of the appropriate degree of departure.’ ” United States v. Russell, 905 F.2d 1450, 1456 (10th Cir.), cert. denied, - U.S.-, 111 S.Ct. 267, 112 L.Ed.2d 224 (1990) (quoting White, 893 F.2d at 279); see also United States v. Banashefski, 928 F.2d 349, 350 (10th Cir.1991) (review application of the sentencing guidelines to facts under “due deference” standard); United States v. Jackson, 921 F.2d 985, 991 (10th Cir.1990) (“A district court has considerable discretion in appraising a defendant’s criminal history.”); United States v. Johnson, 911 F.2d 403, 406 (10th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1004, 112 L.Ed.2d 1087 (1991) (due deference given to district court application of guidelines to the facts).

The sentencing guidelines specify that, “[i]n considering a departure under [U.S.S.G. § 4A1.3], the Commission intends that the court use, as a reference, the guideline range for a defendant with a ... lower criminal history category[.]” U.S.S.G. § 4A1.3 (policy statement). In the instant case, the district court followed this directive. The jump into the career offender category was made in one step under U.S.S.G. § 4B1.1. The district court reversed that single step when it reasonably determined, based on factual determinations that satisfy the guidelines and are not clearly erroneous, that placing defendant in the career offender criminal history category significantly over-represented the seriousness of his criminal history. The district court was in the best position to make a decision about the proper sentence for this defendant. The district court judge acted after studying the information provided by the probation officer’s presen-tence report, after viewing the defendant in the courtroom, and after a two-day jury trial. In addition, we note that the district court did not depart below offense level 26 and criminal history category IV, computed for defendant’s crime and criminal history without the career offender enhancement. According the district court the deference due it, we will not disturb this sentencing decision.

The judgment of the United States District Court for the District of Kansas is AFFIRMED.

. 21 U.S.C. § 841(a)(1) provides: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance[.]”

. Appellant Bowser moved to submit this case on the briefs; the government notified the court that it did not recommend oral argument on either the appeal or the cross-appeal. After examining the briefs and appellate record, the court determined that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case was therefore ordered submitted without oral argument.

.The government’s evidence at trial included the testimony of the two AFT undercover agents involved in the hand-to-hand sales, the audio tape of the second transaction, the video tape of the defendant’s capture and arrest, and foundation, corroboration and chain of custody witnesses.

. The trial court denied defense counsel’s request for the informant’s identity in this colloquy:

[DEFENSE COUNSEL]: That statement he made, Your Honor, is extremely prejudicial.
THE COURT: Well, it is but you didn’t object to it. And it was probably objectionable because it was hearsay and I think the fact that you let him answer it and then now want to know who the confidential informant was that gave him that information is — I think you've sort of created a strong [straw] man to knock down to find that out and I’m going to sustain the Government’s objections, I'm not going to require him to reveal the identity of the confidential informant.

R.VoI. Ill at 37.

. U.S.S.G. § 4A1.3 provides in pertinent part:

There may be cases where the court concludes that a defendant’s criminal history category significantly over-represents the seriousness of a defendant’s criminal history or the likelihood that the defendant will commit further crimes....
In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a ... lower criminal history categoryf.]

. The guidelines' introduction underscores the flexibility which the Sentencing Commission intended in appropriate circumstances:

When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.... With [the specific exceptions set forth in the guidelines], however, the Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in an unusual case.

U.S.S.G., Ch. 1, pt. A, intro, comment 4(b).

. The district court did not discuss the possibility or probability of recidivism as required by Maldonado-Campos, 920 F.2d at 720. However, because Maldonado-Campos was decided after the district court sentenced defendant, the district court’s lack of explicit consideration of this factor is not fatal to its determination that departure was appropriate.

. The government arrived at this conclusion solely through the numerical evaluation that since defendant had spent four years of his adult life out of prison and had been convicted on six counts of felony charges, he had committed an average of 1.5 felonies per non-incarcerated year of his adult life, rendering defendant’s placement in the career offender category reasonable and removal from that category unreasonable. Logically, this reasoning ignores the four years defendant spent in state prison, where he conceivably could have committed and been convicted of other felonies. More fundamentally, the proposition that there is some numerical average of felonies over time which make career offender status irrevocable belies the clear directive of the Sentencing Commission itself, which recognized that in the end, the sentencing judge is in the best position to weigh the individual situation and history of each convicted criminal to determine whether departure from the guidelines is appropriate. U.S.S.G. § 4A1.3 (policy statement).