[ PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                              No. 96-3277
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 4:95-CR-04060-004

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,
                                                               Cross-Appellee,

                                   versus

CORNELL WILLIS,

                                                           Defendant-Appellee,
                                                              Cross-Appellant.

                       ________________________

                Appeals from the United States District Court
                    for the Northern District of Florida
                      _________________________
                             (April 20, 1998)


Before COX, BIRCH, and CARNES, Circuit Judges.

PER CURIAM:
      Cornell Willis was convicted of possession with intent to distribute cocaine

base, in violation of 21 U.S.C. § 841(b)(1)(C). At sentencing, the district court

departed downward under U.S.S.G. § 5K2.0, and sentenced Willis to thirteen months

imprisonment in order to prevent disparate sentences between co-defendants. The

Government appeals, contending the district court abused its discretion in departing

downward, and requests remand for resentencing within the applicable Guideline

range of 41 to 51 months. Willis cross-appeals, contending the evidence was

insufficient to support his conviction.1

      Willis’ brother and co-accused, Cordell Willis, pleaded guilty, with the United

States’ concurrence, pursuant to a plea agreement with the state of Florida, to state

charges of possession of cocaine with intent to sell and was sentenced to time served

and five years probation. The Government dismissed all pending federal charges

against Cordell Willis. Based on the disparity in sentences imposed on brothers of

roughly equal culpability for the same offense conduct, the district court opined that

a downward departure was warranted in order to achieve parity. The Government

contends that the district court may not depart downward in order to reconcile

disparity between federal and state sentences among codefendants because such

departures create system-wide disparities among federal sentences. We agree.


      1
          We affirm Willis’ conviction without discussion. See 11th Cir. Rule 36-1.

                                               2
      Generally, a sentencing court must impose a sentence within the range provided

for by the guidelines unless it finds there exists “a mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by the Sentencing Commission

in formulating the guidelines that should result in a sentence different from that

described.” See U.S.S.G. § 5K2.0 (policy statement) (1995) (quotations omitted). We

conduct our analysis according to the four-part test established in Koon v. United

States, 

, 

(1996), which sets out the following questions:



      (1) What features of the case make it outside the guidelines’ “heartland” and

make it special or unusual?

      (2) Has the Commission forbidden departure based on those features?

      (3) If not, has the Commission encouraged departure based on those features?

      (4) If not, has the Commission discouraged departure based on those features?

See United States v. Bristow, 

, 757 (11th Cir. 1997). The guidelines do

not comment on disparate federal and state sentences imposed upon codefendants;

therefore, we must determine whether this factor takes this case out of the “heartland”

of the guidelines.

      This court has recently held that a departure based on a theoretical sentence that

a defendant might have received had he been prosecuted in state court is unwarranted.


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See United States v. Searcy, 

(11th Cir. 1998). To allow such a departure

on those grounds would undermine the nationwide uniformity that Congress sought

to ensure when it promulgated the sentencing guidelines. See id at 1422; see also

United States v. Sitton, 

(9th Cir. 1992) (no departure available due to

disparities between state and federal sentencing schemes); United States v. Snyder,

(1st Cir. 1998) (federal and state sentencing disparity not a feature

justifying departure).    This court has likewise joined other circuits in holding that

disparate sentencing among federal codefendants was adequately considered by the

Sentencing Commission and is therefore not an appropriate ground for departure. See

United States v. Chotas, 

(11th Cir. 1992); see also United States v.

Wong, 

(8th Cir. 1997) (disparity in sentences imposed on codefendants

not a proper basis for departure); United States v. Perkins, 

(4th Cir.

1997) (same); United States v. Ives, 

(5th Cir. 1993) (same); United

States v. Gallegos, 

(10th Cir. 1997) (departure based on sentencing

disparity among codefendants not justified when sentences dissimilar due to plea

bargain).

      This court has not previously addressed the particular issue of whether

departure is appropriate based on disparate federal and state sentences imposed on

codefendants. Nevertheless, we find that the rationale in Searcy and Chotas compels


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a similar conclusion in this case. Permitting departure based on a codefendant’s

sentence in state court would seriously undermine the goal of nationwide uniformity

in the sentencing of similar defendants for similar federal offenses. See United States

v. Hall, 

, 864 (4th Cir. 1992); see also United States v. Reyes, 

(9th Cir. 1992) (downward departure based on disparity in federal and state

sentences received by co-accused not justified). Accordingly, because the district

court abused its discretion in departing from Cornell Willis’ applicable guideline

range, we vacate his sentence and remand for resentencing in accordance with this

opinion.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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