United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 95-4224.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                  v.

                               Coley QUINN, Defendant-Appellant.

                                            Oct. 3, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 93-8048-CR-
KLR), Kenneth L. Ryskamp, Judge.

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and HARRIS*, Senior District
Judge.

       HARRIS, Senior District Judge:

       Appellant Coley Quinn was charged with conspiring to possess cocaine hydrochloride

(powder cocaine) with the intent to distribute it, and that it was a further purpose of the conspiracy

to manufacture and distribute cocaine base (crack cocaine), in violation of 21 U.S.C. § 846;

possessing cocaine hydrochloride with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2; and with using and carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Two codefendants, John Ruff, Jr., II,

and John Ruff, Jr., III, [sic] also were charged in all counts.
       Quinn and his codefendants pled guilty. Quinn thereafter was permitted to withdraw his

guilty plea, proceeded to trial, and was found guilty as charged.

       Prior to sentencing, Quinn filed a motion challenging the constitutionality of the enhanced

penalties for crack cocaine and asserting that he had been selectively prosecuted because of his race.

The district judge consolidated the motion with respect to the crack cocaine penalties with a similar

motion filed in another of his cases, United States v. Hickman, No. 93-14021-CR-KLR, and, after




   *
    Honorable Stanley S. Harris, Senior U.S. District Judge for the District of Columbia, sitting
by designation.
a joint hearing, denied the motion to deem the penalties unconstitutional and denied a request for

discovery in connection with the selective prosecution claim.

       The district court sentenced Quinn to concurrent 235-month terms of incarceration on Counts

One and Two, a consecutive 60-month term of imprisonment on Count Three, and five years of

supervised release.

                                           I. Background

       Coley Quinn and his two codefendants, John Ruff, Jr., II, and John Ruff, Jr., III, were

arrested on April 14, 1993. A confidential informant had told Drug Enforcement Administration

("DEA") agents that he had information about a drug ring that was distributing crack cocaine. At

the direction of the agents, the informant telephoned the younger Ruff to arrange the sale of two

kilograms of cocaine to the group for $35,000. Quinn answered the phone and said that they wanted

to do the deal immediately. Later in the day, the informant called the younger Ruff and agreed to

meet with Quinn in a shopping center parking lot. Quinn arrived at the scene of the transaction, left

his car, and walked a distance of approximately 50 to 60 feet to the informant's vehicle.

       The informant taped their conversation. Quinn said that everything was ready and that he

had seen the money, but that the Ruffs wanted to check the "shit" by "cook[ing] some."1 Quinn and

the informant arranged for the Ruffs to buy the cocaine conditionally and to "cook" some before

giving final approval; Quinn described one of the Ruffs as "the greatest guy cooking wise." The
informant told Quinn that each of them would receive $1,500 for arranging the deal, and Quinn

again said that he wanted to close the deal promptly.

       The Ruffs arrived thereafter, asked if "Coley" had explained the transaction, displayed the

purchase money to the informant, and confirmed the procedure for the deal. The informant called

Officer Patrick Flannery of the City of West Palm Beach Police Department, who was posing as the

drug courier. Flannery arrived in a Toyota Camry; Quinn and the younger Ruff got into the car and

   1
    Crack cocaine is made by converting cocaine hydrochloride to base form, and "cooking"
refers to the process used to transform cocaine hydrochloride into cocaine base, commonly
known as crack.

                                                 2
exchanged the money for the cocaine. They were arrested. The police also arrested a juvenile who

was sitting in Quinn's car and apprehended him with a loaded gun.

       Quinn and the Ruffs were transported to a DEA office. Quinn was advised of his Miranda

rights and gave a statement. According to the agents, Quinn said that he had introduced the

informant to the Ruffs after learning that the informant had access to cocaine, that the elder Ruff,

in Quinn's presence, had told the informant that he was in the business of making crack and needed

high quality cocaine for that purpose, and that Quinn had seen the informant several times during

the next year and they had discussed working together in the future, eventually leading to the

transaction at issue here. Quinn also stated that he had brought the gun for "self-protection," that

he had pulled off I-95 on the way to the drug deal to check the weapon, and that he had placed the

gun between the two front seats of his car and had covered it with a towel. Quinn also offered to

become an informant. He said that he had worked for the Federal Bureau of Investigation ("FBI")

in the past and gave the name of FBI Special Agent Larry Doss to support this. Quinn also stated

that he was not working for Doss at the time of the arrest and that he had gotten involved in the

transaction for the money.

       Quinn moved to suppress his post-arrest statement as involuntary, contending that it had been

coerced by a false statement that he was facing 40 years in prison. The motion was denied. Prior

to trial, pursuant to Federal Rule of Criminal Procedure 12.3, Quinn filed a notice of his intent to
assert as a defense his belief that he was acting in accordance with public authority.

       The case proceeded to trial, and the government called several law enforcement officers to

testify about both the transaction and Quinn's confession. On the second day of trial, the

government announced its intent to call a previously undisclosed witness, DEA Agent Robert

Mangiamele, to testify about an alleged second post-arrest statement made by Quinn that he was

involved in the instant transaction for profit and not as an informant. Quinn objected, and the trial

judge restricted Mangiamele's testimony to rebuttal.




                                                 3
       Quinn testified that he had met the informant through his employer and had introduced him

to the Ruffs, who wished to do a drug deal. He began to feel that he was involved in the deal too

deeply, called the FBI, and was referred to Agent Doss. The two met; Quinn provided some

information on suspected drug figures, and asked for money. Doss told Quinn to keep him informed

and to make sure his drug contacts were not connected with the DEA. Quinn contacted Doss again

in December 1992, and Doss again told Quinn to keep him informed. Doss previously had told

Quinn that he did not want to do any deals for less than five kilograms of cocaine, and Quinn

allegedly said that doing so would require a number of preliminary transactions in order to gain the

drug dealers' confidence. Doss told Quinn to contact him when he reached the five-kilogram level.

Quinn further testified that he contacted Doss again in March 1993 to tell him about a one-kilogram

deal involving the younger Ruff, but that he did not have the address for the house where Ruff had

picked up the cocaine. Doss told Quinn that he could not get a search warrant without an address,

and Quinn said that he would have to do another drug deal to get it. On April 12, 1993, the

informant contacted Quinn about the instant deal; Quinn did not discuss the April transaction with

Doss because they had already discussed Quinn's building up to a five-kilogram deal.

       Quinn also testified that, at about the time he initiated his contact with Doss, he had told two

other people that he was contacting the FBI and hoped to work for that agency. First, in a

conversation at a Costco store, he spoke with his longtime acquaintance, John Flint of the Palm
Beach Sheriff's Department, and told him that he planned to work for the FBI and asked for advice

on how to approach Doss. Second, Quinn spoke with an HRS caseworker to seek assistance in

paying his rent, and he mentioned that he hoped to work as an informant for the FBI. Quinn wanted

to call Flint as a witness, but the government objected and the trial court did not allow Flint to

testify. The HRS case worker did testify for the defense.

       At the conclusion of the government's case, Quinn moved for a judgment of acquittal on the

§ 924(c) count on the ground that there was insufficient evidence that his gun was used to facilitate




                                                  4
a drug trafficking crime. The trial judge denied the motion, stating: "They don't have to use the gun

in the transaction. If it is available, could have been used, that's all that's required."

        On rebuttal, Agent Doss testified that Quinn had never told him about the Ruffs or a

one-kilogram deal in Miami, and that he had not encouraged Quinn to get involved in drug deals and

then tell Doss about them later. DEA Special Agent Nicholas Kent and West Palm Beach Police

Officer John Kelly testified that Quinn stated that he had participated in the drug deal for the money,

and not as an FBI informant. DEA Special Agent Mangiamele testified that both Doss and Quinn

had told him that Quinn had not been working for the FBI at the time of the arrest, and that Quinn

had said that he had arranged the deal for the money.

                                              II. Analysis

A. The Exclusion of John Flint's Testimony

        Quinn contends that the district court incorrectly excluded Flint's proffered testimony. Flint,

of the Palm Beach Sheriff's Department, was Quinn's long-time acquaintance and had had a

discussion with Quinn in a Costco store. Quinn testified about this conversation. The government

objected to Flint's testimony on the ground that it would be hearsay, and the court excluded it.

        The parties disagree initially about the applicable standard of review. The government

contends that a plain error standard applies because appellant did not preserve his objection by

making an offer of proof to the district court, pursuant to Federal Rule of Evidence 103(a)(2);
appellant urges us to apply an abuse of discretion standard.

        Rule 103(a) provides, in relevant part, that "[e]rror may not be predicated upon a ruling

which ... excludes evidence unless a substantial right of the party is affected, and ... (2) .... the

substance of the evidence was made known to the court by offer or was apparent from the context

within which questions were asked."

         Rule 103(a)(2) does not require that a formal offer of proof be made to preserve an

objection. United States v. Sweiss, 

, 1211 (7th Cir.1986). Where the substance of the

evidence is apparent to the court from its context, an appellant is entitled to ordinary appellate


                                                   5
review of a ruling excluding evidence. Here, that burden was satisfied because the prosecutor was

informed in advance of Quinn's intent to call Flint, objected immediately when Flint's testimony was

proffered, and explained to the court that Flint was going to testify to a certain conversation and that

the government believed it to be hearsay.2 Moreover, Quinn discussed this conversation during his

own testimony. Accordingly, we conclude that an abuse of discretion standard applies. See United

States v. Sheffield, 

, 1170 (11th Cir.1993) ("[B]ecause the trial court and prosecutor

were well aware of the substance of the evidence, and the record reflects the substance of the

evidence, we find that the defense counsel made an adequate proffer").

       Flint was expected to testify about a conversation he had with Quinn in which Quinn asked

Flint about becoming an informant for the FBI.3 Quinn contends that Flint's testimony would have

corroborated his defense that he believed he was acting under public authority when he made the

drug deal, and therefore lacked the requisite criminal intent. Quinn contends here, as he did before

the district court, that (1) the statements are not hearsay, and (2) even if they are hearsay, they

should have been admitted under either the state of mind exception to the hearsay rule, Federal Rule

of Evidence 803(3), or under the "catch-all" provision in Rule 803(24).

       We conclude that the district court was incorrect in determining that the statements were

hearsay. Rule 801(c) defines "hearsay" as "a statement ... offered in evidence to prove the truth of

the matter asserted." Here, the statements were not offered for their truth, i.e., that Quinn was then
working or was going to work for the FBI. See United States v. Harris, 

, 1004 (2d




   2
    The prosecutor stated: "[I]t is our belief he is going to ... elicit from the witness a
conversation that the witness had with the defendant at Costco sometime before the defendant
was arrested in which the defendant said to the witness ... "I'm working for the FBI or I'm going
to be working for the FBI,' and that is just rank hearsay...."
   3
    In relevant part, Quinn stated: "I told Johnnie Flint that at Costco at the same time when I
asked him about Larry Doss, who was Larry Doss. I asked John Flint about how I should
approach the FBI, how should I deal with them. He is the only one that informed me on asking
them for a contract.... [M]y conversation with John Flint was to find out about the FBI. I was
trying to get myself familiar with how the FBI system worked...."

                                                   6
Cir.1984). Because we conclude that the offered statements were not proscribed "hearsay," we need

not address the parties' arguments about exceptions to the hearsay rule.

       The exclusion of this testimony, however, did not affect a substantial right of appellant. See

Fed.R.Evid. 103(a) and Fed.R.Crim.P. 52(a). Flint's testimony, as discussed above, was offered to

establish that Quinn intended to contact Doss about becoming an informant. There was, however,

no dispute that Quinn had this intention and acted upon it. Moreover, the testimony would have

been merely cumulative; Agent Doss and Quinn already had testified about their conversations, and

the HRS caseworker testified that Quinn had told him that he intended to work as an FBI informant.

Accordingly, we conclude that the exclusion of Flint's testimony was harmless error.

B. The Brady/Giglio Issue

        Quinn filed a pretrial motion requesting that the trial court order the government to disclose

the personnel files of the testifying officers for impeachment purposes. The court granted the motion

"within the scope of the Standing Discovery Order."4 Quinn then filed a motion for clarification,

asking the court to "rule definitively as to ... whether the Government must review personnel records

of law enforcement officers." The district judge referred the motion for clarification to a United

States Magistrate Judge, who issued an order denying the motion and stating that the government

was

       obliged to furnish counsel with Brady and Giglio material. Failure to comply with this
       obligation could result in the imposition of severe sanctions. This Court declines to instruct

   4
    The Standing Discovery Order provided in relevant part:

                      The government shall reveal to the defendant and permit inspection and
               copying of all information and material known to the government which may be
               favorable to the defendant on the issues of guilt or punishment within the scope of
               Brady v. Maryland, 1963, 

, 

, 

, and
               United States v. Agurs, 1976, 

, 

, 

.

                       The government shall disclose to the defendant the existence and
               substance of any payments, promises of immunity, leniency, preferential
               treatment, or other inducements made to prospective government witnesses,
               within the scope of Giglio v. United States, 1972, 

, 

, 

, and Napue v. Illinois, 1959, 

, 

, 

.

                                                  7
          the Government on the manner in which to discharge its obligations under the Standing
          Discovery Order.

The district judge read the magistrate judge's order aloud at an April 7, 1994, hearing on Quinn's two

suppression motions. He then stated:

          As far as personal [sic] records go, the government has to see if they're ... Brady or Giglio
          .... Everybody knows that.... And I'm not going to tell the government what it has to do.
          One thing to clarify my position is that the government should be reviewing those records
          to determine whether this is Brady material at sight, not just to necessarily hand them over.

The prosecutor stated that she understood the court.

          Quinn contends that the district court failed to ensure that the government adequately

complied with its order with respect to the personnel records of testifying law enforcement officers.

We review this issue de novo. See United States v. Mejia, 

, 1036 (11th Cir.), cert.

denied, --- U.S. ----, 

, 

(1996); Delap v. Dugger, 

, 298

(11th Cir.1989), cert. denied, 

, 

, 

(1990).

          In Brady v. Maryland, 

, 

, 

(1963), the Supreme

Court held that the failure of the prosecution to turn over evidence favorable to the defendant on the

issue of guilt violates due process. 

83 S.Ct. at 1196-97. Included among the evidence that

Brady obligates the prosecution to disclose is "evidence affecting credibility." Giglio v. United

States, 

, 154, 

, 766, 

(1972). On the other hand, the

Supreme Court has made it clear that the Brady rule is not an evidentiary rule that grants broad
discovery powers to a defendant and that "[t]here is no general constitutional right to discovery in

a criminal case." Weatherford v. Bursey, 

, 559, 

, 846, 

(1977).

          Here, the district judge required the government to comply with Brady and Giglio, and stated

that the government was required to review the personnel files to determine whether they contained

Brady or Giglio material. Quinn, however, contends that "Brady and Giglio are not sufficient to

insure that a defendant will be able to ascertain whether material exists in the personnel records of

federal law enforcement officers that should cast legitimate doubt as to their credibility." Quinn thus


                                                   8
urges us to follow United States v. Henthorn, 

(9th Cir.1991), which holds that when a

defendant requests the personnel files of testifying officers, the government must examine them and

disclose material information that is favorable to the defense, and that if the government is uncertain

about the materiality of the information, it may submit the information to the trial court for in camera

review.5 

The Henthorn court further held that a defendant need not make an initial

showing of materiality; the government's obligation to examine the files arises by virtue of a

defendant's demand for their production.6 

We decline to follow Henthorn.

        Quinn has offered no support for his contention that the personnel files might contain

information of significance to his case; nevertheless, he argues that the government should have

been required to disclose the contents of the files or produce the files for the district court's

inspection. In United States v. Pitt, 

(11th Cir.1983), cert. denied, 

, 

, 

(1984), however, this court rejected that argument and held that because

a defendant had failed to demonstrate that the contents of an FBI agent's file contained material

evidence, the district court did not err in refusing to order the prosecution to turn over the file. 

Other circuits also have rejected this argument. In United States v. Andrus, 

(7th Cir.1985), the Seventh Circuit held:

       " Mere speculation that a government file may contain Brady material is not sufficient to
       require a remand for in camera inspection, much less reversal for a new trial. A due process
       standard which is satisfied by mere speculation would convert Brady into a discovery device
       and impose an undue burden upon the district court."

(quoting United States v. Navarro, 

, 631 (7th Cir.), cert. denied, 

, 

, 

(1984)). The Sixth Circuit also has rejected the argument,


   5
    Appellant further interprets Henthorn as holding that the government must, after examining
personnel files upon a defendant's request, certify in good faith that it has done so. We,
however, see no such certification requirement in that case. We also observe that Quinn did not
request such a certification by the government in the district court.
   6
    The Ninth Circuit subsequently clarified that, under Henthorn, an Assistant United States
Attorney ("AUSA") may not be ordered by a district court to conduct the examination
personally; rather, the appropriate agency may examine its files and notify the AUSA of any
potential Brady material. See United States v. Herring, 

(9th Cir.1996).

                                                   9
citing Andrus and Pitt. See United States v. Driscoll, 

, 1482 (6th Cir.1992) (upholding

government's refusal to disclose testifying officers' personnel files based only on defendant's

speculation that files contained material useful to impeach officers' credibility), cert. denied, 

, 

, 

(1993). Quinn's speculative claim falls into the same

category as the claims rejected in Pitt, Andrus, and Driscoll, and we conclude that the district court

did not err by not providing further relief.

C. The Admission of Agent Mangiamele's Testimony

          At the beginning of the second day of the three-day trial, the AUSA notified the court that

she and the case agent, Kent, had learned the previous evening of a post-arrest statement Quinn had

made to Agent Mangiamele, in which Quinn stated that he was not working for Agent Doss at the

time of the arrest and that he participated in the drug transaction for money. (This statement was

made at a different time than the similar statement made in the presence of Agent Kent and Officer

Kelly.)

          Defense counsel objected to the admission of this testimony on the ground that Mangiamele's

name and the substance of his testimony had not been disclosed to Quinn prior to trial pursuant to

Federal Rules of Criminal Procedure 12.3(a)(2) and 16(a)(1)(A), and the Standing Discovery Order.

The district court permitted the testimony as rebuttal on the ground that it was merely corroborative.

Quinn argues that his defense was prejudiced by the admission of this testimony, which with more
time he might have been able to have excluded.

          Rule 12.3(a) requires the government to give notice of any witness who may contradict a

public authority defense. Rule 16(a)(1)(A) requires the government to disclose any oral statement

made by the defendant to a government agent that the government intends to offer as evidence at

trial. Both rules require the government to make prompt disclosure, before or during trial, of

information of which it learns after giving the initial notice. Fed.R.Crim.P. 12.3(b) & 16(c).

           "[A] discovery violation does not automatically preclude the government's use of the

evidence at trial." United States v. Accetturo, 

, 636 (11th Cir.1992), cert. denied, 506


                                                  

, 

, 

(1993). Moreover, we will reverse a conviction based

on the government's violation of a discovery order only if the defendant has demonstrated that the

violation "prejudiced his substantial rights." United States v. Rivera, 

, 1566 (11th

Cir.1991).

       Here, Mangiamele's testimony was cumulative of the testimony presented by Kent and Kelly,

who testified that Quinn had told them that he had not been working for the FBI prior to his arrest,

but instead had participated in the drug deal for the money. We therefore readily conclude that

Mangiamele's testimony did not prejudice Quinn's substantial rights. See 

D. The Proposed Entrapment Instruction

        Quinn contends that the district court erred by denying his request for an entrapment

instruction. He asserts that a defendant is entitled to an instruction on any defense theory with some

basis in the evidence and legal support, citing United States v. Hedges, 

, 1406 (11th

Cir.1990) (regarding jury instruction on entrapment by estoppel), and contends that his testimony

demonstrated that Agent Doss induced him to participate in the drug transaction.

        Entrapment is an affirmative defense, evidence of which must be presented before the issue

is considered to be properly raised. United States v. Gates, 

, 499 (11th Cir.), cert.

denied, 

, 

, 

(1992). The defendant has the "initial

burden of producing evidence, or of pointing to substantial evidence" showing government
involvement or inducement. United States v. Parr, 

, 802 (11th Cir.1983). To satisfy

this burden,

       [t]he defendant must demonstrate not merely inducement or suggestion on the part of the
       government but "an element of persuasion or mild coercion."... The defendant may make
       such a showing by demonstrating that he had not favorably received the government plan,
       and the government had had to "push it" on him, ..., or that several attempts at setting up an
       illicit deal had failed and on at least one occasion he had directly refused to participate....

United States v. Ventura, 

, 1233 (11th Cir.1991) (internal citations omitted in text),

quoting United States v. Andrews, 

, 1499 (11th Cir.1985), cert. denied, 

,

, 

(1986). In determining the sufficiency of the evidence, we view the


                                                 11
evidence in the light most favorable to the accused. 

; 

.

Applying the law to the facts presented here, Quinn indicated no reluctance to get involved in the

drug deal. Nor is there any evidence that Agent Doss persuaded or coerced him in any way.

Evidence that the agent merely did not discourage Quinn from participating in the venture is

insufficient to entitle Quinn to an entrapment instruction. Because Quinn failed to come forward

with evidence sufficient to raise a jury issue of entrapment, we conclude that the district court

correctly refused to instruct on entrapment.

E. Quinn's Motion To Suppress His Post-Arrest Statements

        Quinn filed a pretrial motion to suppress his statements to Agent Kent on the grounds that

Kent made improper inducements and threats to him and discouraged his obtaining an attorney. At

the hearing, Quinn testified that he had been told that he was facing a 40-year sentence but might

receive a more favorable sentence if he cooperated. He testified that he also had been told that it

would be difficult to cooperate once an attorney had been appointed. He also suggested that he had

not properly been advised of his Miranda rights; he stated that although his rights were read to him

orally, the written waiver form that he signed had been obscured.

        Agent Kent testified that the issue of the potential sentence arose only after Quinn asked

Kent about it, and that he made a accurate estimate of Quinn's potential sentence: he predicted 25

years, and Quinn ultimately was sentenced to a 295-month term of incarceration.7 "[D]iscussions

of realistic penalties ... are normally insufficient to preclude free choice." United States v. Mendoza-

Cecelia, 

, 1475 (11th Cir.), cert. denied, 

, 

, 

(1992). Regarding Kent's discussion of Quinn's choice to obtain counsel, the government

contends that Kent "simply advised Quinn of the consequences that could flow from delaying any

attempt at cooperation." We observe, in any event, that Quinn made no inculpatory statements after

Kent's statement about obtaining counsel.


   7
   295 months is roughly 24 and 1/2 years, with the likelihood of a reduction of 54 days per
year for so-called good time.

                                                  12
           We review the district court's factual findings for clear error and review its application of

law to facts de novo. United States v. Blackman, 

, 1577 (11th Cir.1995), cert. denied,

--- U.S. ----, 

, 

, and cert. denied, --- U.S. ----, 

, 

(1996). The district court adopted the report and recommendation of the magistrate

judge, who concluded that Quinn's statement was voluntarily made, and, to the extent that Quinn's

testimony conflicted with the finding that Agent Kent had made no threats to Quinn, it was not

credible. The court also concluded that Quinn had been advised of his Miranda rights.

           The admissibility of confessions is covered by 18 U.S.C. § 3501, which provides, in relevant

part, that "[i]n any criminal prosecution brought by the United States ... a confession ... shall be

admissible in evidence if it is voluntarily given." 18 U.S.C. § 3501(a). We agree with the district

court that Quinn's statement was made knowingly and voluntarily. We also conclude that Quinn's

suggestion that the statement should have been suppressed because he was not adequately advised

of his Miranda rights is without merit. Quinn himself testified that an agent read him his rights. The

district court did not err in denying the motion to suppress.

F. Sentencing Guideline Issues

           Quinn further argues that the district court erred in determining that his offenses involved

crack cocaine, that the court erred by rejecting his request for a downward departure, that the

penalties for crack cocaine offenses are cruel and unusual as applied to Quinn, that the penalties for
crack cocaine offenses lack a rational basis, and that the court erred by denying his request for

discovery on his selective prosecution claim. All of these claims lack merit, and we address them

briefly.

           1. Quinn first contends that the district court erred in calculating his base offense level

according to the guideline for 1.6 kilograms of crack rather than at the level which would be

applicable to two kilograms of cocaine hydrochloride. He argues that there was insufficient

evidence to justify sentencing him to the higher penalty for crack cocaine. We review de novo the

district court's interpretation and application of the Sentencing Guidelines. United States v. Lewis,


                                                   13


, 1536 (11th Cir.1997). We review the district court's factual findings for clear error.

the jury's verdict did not specify the object of Quinn's conspiracy, i.e.,

possession with intent to distribute cocaine hydrochloride or crack cocaine, Quinn could be

sentenced under the guideline for crack cocaine only if "the court, were it sitting as a trier of fact,

would convict the defendant of conspiring to commit that offense." United States v. McKinley, 

, 1025-26 (11th Cir.1993) (quoting U.S.S.G. § 1B1.2(d) comment 5), cert. denied, 

, 

, 

, and cert. denied, 

, 

, 

(1994). During the sentencing hearing, in response to Quinn's objection to the

presentence report, the district judge stated:

       It's clear to me that if I were hearing this as the trier of fact, that I wouldn't have any trouble
       at all in finding that he was—the object of the conspiracy was to cook crack, so on that basis
       I would find that the evidence supports beyond a reasonable doubt that the purpose of the
       conspiracy was to cook crack with it.

The district court's explicit finding is amply supported by the record. The conversion of powder

cocaine into crack not only was foreseeable by Quinn, but was plainly within the scope of the

criminal activity that he undertook. There was evidence that Quinn had discussed "cooking" the

cocaine with the informant, and that the elder Ruff, in Quinn's presence, had told the informant that

he was in the business of making crack and needed high quality cocaine for that job. Cf. United

States v. Chisholm, 

, 308 (11th Cir.1996) (holding that it was neither reasonably
foreseeable to defendant nor an object of the conspiracy that powder cocaine would be converted

to crack where defendant merely assisted with the procurement of powder cocaine, had no contact

with the crack dealer, and where the record contained no evidence that defendant had knowledge

of, or agreement to, the planned conversion). Accordingly, we reject this argument.

        2. Quinn next contends that the district court erroneously concluded that it lacked discretion

to depart downward in order to reduce the disparity between his sentence and those of his

codefendants. The codefendants, as mentioned above, had pled guilty and were sentenced under the

guideline for cocaine hydrochloride, while Quinn was sentenced under the guideline for crack

                                                  14
cocaine. We review de novo Quinn's claim that the district court mistakenly believed that it lacked

a basis for a downward departure. United States v. Holden, 

, 860 (11th Cir.1995).

          Quinn urges us to follow the Ninth Circuit's reasoning in United States v. Kohl, 

(9th Cir.1992), which held that a sentencing court may depart downward to adjust for disparities in

the sentences of codefendants. In United States v. Chotas, 

(11th Cir.1992), however,

this court rejected that reasoning and held that a sentencing judge may not depart in order to avoid

an apparently unjustified disparity between codefendants. 

          3. Quinn next challenges the constitutionality of the crack cocaine penalties. We review de

novo a district court's conclusion that a sentencing statute is constitutional. United States v. Byse,

, 1167 (11th Cir.1994), cert. denied, 

, 

, 

(1995).

          Quinn first contends that the crack cocaine penalties are cruel and unusual, in violation of

the Eighth Amendment. This Circuit has rejected such a claim. See United States v. Solomon, 

, 157 (11th Cir.1988). Quinn claims, nevertheless, that the penalties are cruel and unusual

as they apply to him because of his lesser role in the transaction. A plurality of the Supreme Court,

however, has rejected the notion that the Eighth Amendment's protection from cruel and unusual

punishment extends to the type of offense for which a sentence is imposed; rather, it protects against

cruel and unusual modes of punishment. See Harmelin v. Michigan, 

, 965-66, 979-85,

, 2686-87, 2693-96, 

(1991).

          Quinn next contends that there is no rational basis for the enhanced crack cocaine penalties.

This argument also is foreclosed by binding case law, as this Circuit has held repeatedly that a

rational basis exists to support the differing penalties. See, e.g., 

; United

States v. King, 

, 1260 (11th Cir.1992).

           4. Quinn filed a motion for discovery alleging that he had been selected for federal

prosecution because he is black. The district court consolidated Quinn's motion with the motions

of nine other movants, and after an evidentiary hearing, denied the motions. We review a trial


                                                   15
court's denial of a request for discovery relating to a selective prosecution claim for abuse of

discretion. See, e.g., United States v. Candia-Veleta, 

, 246 (9th Cir.1996); United

States v. Fares, 

, 59 (2d Cir.1992).

        In United States v. Armstrong, --- U.S. ----, 

, 

(1996), the

Supreme Court held that the "rigorous standard for discovery" in aid of a selective prosecution claim

"require[s] some evidence tending to show the existence of the essential elements of the defense,

discriminatory effect and discriminatory intent." 

116 S.Ct. at 1488 (internal quotation

marks omitted). The threshold for showing "some evidence tending to show the existence" of the

discriminatory effect element is "some evidence of differential treatment of similarly situated

members of other races or protected classes." 

- 

-89.

        Quinn contends that he made this threshold showing because at least one black person was

charged in federal court for a crime involving less than 50 grams of crack cocaine, while no white

person has been so charged. The government contends that it does not prosecute cases involving

less than 50 grams of crack cocaine (leaving them for local prosecution) unless there are additional

circumstances, such as a prior record of drug offenses, or the involvement of a firearm in connection

with the offense. Where such circumstances are absent for one offender, and present for another,

the two persons are not similarly situated, and the government quite properly may treat them

differently.
        Here, the district court spent an entire day hearing testimony and argument on the selective

prosecution discovery issue. At the conclusion of the hearing, the district court was satisfied that

the United States Attorney's Office had made its prosecutorial decisions regarding crack cocaine

offenses in a fair and unbiased manner and that state officers had not acted on any racial motives

when they sought to refer cases for federal prosecution. The district court found that the defendants

had failed to establish a colorable claim of discriminatory intent and that they thus were not entitled

to obtain discovery from the government on the selective prosecution claim.                We agree.




                                                  16
Accordingly, we conclude that the district court correctly denied Quinn's motion for discovery to

support his selective prosecution claim.

G. The Section 924(c)(1) Conviction

        Quinn challenges his conviction for using or carrying a firearm during and in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Quinn argues that the government

failed to produce sufficient evidence to demonstrate that he was using or carrying a firearm during

and in relation to a drug trafficking crime.

         Sufficiency of the evidence is a question of law we review de novo. United States v.

Chirinos, 

, 1095 (11th Cir.), petition for cert. filed, No. 97-5738 (U.S. Aug. 25, 1997).

In determining whether sufficient evidence supports a defendant's conviction, we view the evidence

in the light most favorable to the government and draw all reasonable inferences and credibility

choices in favor of the jury's verdict. 

the trial court's denial of the motion for a

judgment of acquittal and the jury's guilty verdict, we need only find that a reasonable factfinder

could conclude that the evidence established the defendant's guilt beyond a reasonable doubt.

United States v. Range, 

, 616-617 (11th Cir.1996).

        Section 924(c)(1) provides in relevant part:

        Whoever, during and in relation to any crime of violence or drug trafficking crime ... for
        which he may be prosecuted in a court of the United States, uses or carries a firearm, shall,
        in addition to the punishment provided for such crime of violence or drug trafficking crime,
        be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle,
        short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years....

18 U.S.C. § 924(c)(1). A defendant thus can be convicted under § 924(c)(1) upon a showing that

he either used or carried a firearm. 

. In order to sustain a conviction under

the "use" prong of the statute, the government must show active employment of the firearm, such

as firing, attempted firing, brandishing, displaying, bartering, or striking. Bailey v. United States, ---

U.S. ----, ----, 

, 508, 

(1995). To sustain a conviction under the

alternative "carry" prong, the government must show an actual transporting of the firearm during

and in relation to the drug trafficking offense, such as the defendant's having carried the firearm on


                                                   17
his person or in a vehicle used for drug distribution during and in relation to the drug trafficking

offense. See 

; United States v. Farris, 

, 395 (11th Cir.),

cert. denied, --- U.S. ----, 

, 

(1996).

       Here, the government presented evidence that a firearm was seized from a juvenile, who was

apprehended holding the gun while sitting in Quinn's car. As Quinn points out, there is no evidence

that Quinn personally brandished or displayed the gun. The gun was in his car, roughly 50-60 feet

away from his person at the penultimate moment of the transaction.

       There is, however, overwhelming evidence that Quinn carried a firearm during and in

relation to a drug trafficking crime. In a post-arrest statement, Quinn said that the gun was his, that

he had carried the gun to his car, that he had pulled off the highway while en route to the meeting

place in order to check the gun, and that he had driven to the drug deal with the gun beside him for

protection.8

       In 

, we held that a gun in the glove compartment of a vehicle was

"carried" in violation of § 924(c)(1) when the vehicle was being used as a base for drug distribution.

In that case, however, the cocaine had been transported to the scene in the vehicle along

with the gun. Defendant thus contends that Farris is inapplicable because Quinn's vehicle was used

only to get Quinn to the scene of the transaction, and was not used to transport the cocaine. In

Chirinos, however, this court held that the reasoning in Farris applied where a defendant had driven
to an airstrip in order to steal a shipment of cocaine, and where agents had seized a mini-assault rifle

from the back seat of the vehicle, even though there was no cocaine in the vehicle. See 

; see also 

(holding that a defendant carried a gun where

the gun was stored under the floormat of his vehicle during a delivery of money for cocaine).

       Quinn also contends that a firearm is not "carried" in violation of § 924(c)(1) where, as here,

it is not available for immediate use because it was 50-60 feet away from him at the end of the


   8
   We observe that this evidence also supports Quinn's conviction for carrying the gun during
and in relation to the cocaine conspiracy.

                                                  18
scenario. Other circuits are split on the issue whether a firearm must be immediately accessible to

a defendant in order to support a "carrying" conviction under § 924(c)(1). The First, Fourth,

Seventh, and Tenth Circuits have held that a gun may be "carried" in a vehicle for the purposes of

§ 924(c)(1) without necessarily being immediately accessible to the defendant. See United States

v. Cleveland, 

, 1066-1068 (1st Cir.1997) ("the ordinary meaning of the term "carry'

... affords no basis for imposing an accessibility requirement"), petition for cert. filed, No. 96-8837

(Apr. 30, 1997); United States v. Mitchell, 

, 653-54 (4th Cir.1997) ("the firearm does

not cease to be "carried' simply because it is not readily accessible to the offender"); United States

v. Molina, 

, 932 (7th Cir.1996) ("a gun does not have to be within a defendant's

immediate reach" to satisfy the "carry" prong); United States v. Miller, 

, 1259 (10th

Cir.) ("the government can obtain a conviction under the "carry' prong even without proof [that] the

firearm was in effortless reach"), cert. denied, --- U.S. ----, 

, 

(1996),

overruled on other grounds by United States v. Holland, 

(10th Cir.1997). The

Second, Sixth, and Ninth Circuits, in contrast, have imposed the requirement of immediate

accessibility. See United States v. Giraldo, 

, 676-77 (2d Cir.1996) ("a person cannot be

said to "carry' a firearm without at least a showing that the gun is within reach during the

commission of the drug offense" (internal citation omitted)), cert. denied, --- U.S. ----, 

, 

(1996); United States v. Hernandez, 

, 1258 (9th Cir.1996) ("the
firearm must have been immediately available for use by the defendant"); United States v. Riascos-

Suarez, 

, 623 (6th Cir.) ("the firearm must be immediately available for use—on the

defendant, or within his or her reach"), cert. denied, --- U.S. ----, 

, 

(1996).

          In Farris, this Circuit implicitly rejected the requirement of immediate availability. In that

case, the defendant was apprehended as he approached a motel room with a quantity of cocaine; his

gun was found in the glove compartment of a vehicle parked in the motel parking lot. See Farris,




                                                   

. For all of these reasons, we find the evidence sufficient to support Quinn's

conviction under § 924(c)(1).9

H. The Section 924(c)(1) Jury Instruction

        Quinn asserts that he is entitled to a new trial on the § 924(c)(1) issue because the jury

instruction on that issue was incorrect in light of the Supreme Court's subsequent Bailey decision.

       The district court instructed the jury:

       The mere presence of a firearm or firearms at the scene of a transaction or event does not
       necessarily establish proof that the firearm was being used or carried in relation to a drug
       trafficking offense. Possession of a firearm constitutes use in relation to a drug trafficking
       offense if the possession is an integral part of and facilitates the commission of the drug
       trafficking offense.

       Using or carrying a firearm during and in relation to a drug trafficking offense can be
       established by showing: One, proof of a transaction in which the circumstances surrounding
       the presence of a firearm suggest that the possessor of the firearm intended to have it
       available for possible use during the drug trafficking transaction, or two, the circumstances
       suggest that a firearm was strategically located so as to be quickly available for use during
       a drug trafficking transaction.

        The parties agree that this instruction was erroneous vis-a-vis the "use" prong of § 924(c)(1),

in light of the Supreme Court's holding in Bailey that possession of a firearm without active

employment of that firearm cannot sustain a conviction under the "use" prong of the statute. See

Bailey, --- U.S. at ---- - 

. An erroneous jury charge entitles a defendant to

reversal of his conviction and remand for a new trial on the count in question only when a

reasonable likelihood exists that "the jury applied the instruction in an improper manner." 

(internal citation marks omitted); see also 

-20 (a general

verdict under § 924(c)(1) will be sustained so long as the evidence is sufficient to establish one of

the means of violating it, but the reviewing court must be able to determine with absolute certainty

that the jury based its verdict on the ground on which it had been properly instructed); United States

v. Rogers, 

(11th Cir.1996) (applying harmless error analysis to jury charge error of

constitutional dimensions when error did not play any role in the verdict), cert. granted in part, ---

   9
    We also note, although it is not of dispositive significance, that the gun was immediately
available to Quinn at every stage until he got out of the car.

                                                 20
U.S. ----, 

, 

(1997); United States v. Holland, 

, 1359

n. 4 (10th Cir.1997) ("essential inquiry" is whether the jury's verdict, in light of instructions given

and evidence, is the "functional equivalent" of required findings for a "carry" conviction, citing

United States v. Windom, 

, 524 (7th Cir.1996), cert. denied, --- U.S. ----, 

, 

(1997); United States v. Pimentel, 

, 60 (2d Cir.1996); United

States v. Moore, 

, 112 (6th Cir.1996), petition for cert. filed, No. 97-5648 (Aug. 18,

1997)).

          We are convinced that the jury found Quinn guilty of "carrying," and not of "using," the

firearm. In reaching this conclusion, we note that the evidence of the "carrying" of the firearm was

overwhelming, and that there was a complete lack of evidence from which the jury could have

concluded that Quinn "used" the gun—even under the instruction given by the district court. See

. The trial judge instructed the jury that mere possession of a firearm during

a drug trafficking offense is insufficient to establish "use," and that to find that Quinn "used" or

"carried" the firearm, the jury would have to find that it was "available for possible use during the

drug trafficking transaction, or ... strategically located so as to be quickly available." Here, where

the gun was 50-60 feet away, it was at that moment in time neither "available" nor, relatively

speaking, "quickly available." We thus conclude that a properly instructed jury would have found

Quinn guilty of violating § 924(c)(1) on the basis of the "carrying" prong of the statute, evaluated
in light of the evidence adduced.

                                           III. Conclusion

          For the foregoing reasons, the convictions and sentence are AFFIRMED.




                                                  21