IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-1259 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID GLENN IVES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ ( February 16, 1993)

Before REAVLEY, KING and WIENER, Circuit Judges.

KING, Circuit Judge:

After pleading guilty to the charge that he distributed

amphetamine in violation of

(a)(1), David Glenn

Ives was sentenced by the district court to ninety-seven months'

imprisonment. On appeal, Ives raises a single claim: that the

district court erred by refusing to depart downward in order to

"harmonize" Ives' sentence with the considerably lesser sentences

given to Ives' equally culpable co-conspirators. Finding no

error, we affirm.

Because Ives raises only a single issue of law on appeal, we

dispense with a full recitation of the facts. We simply note that Ives' co-conspirators received sentences substantially less

severe than Ives' sentence of ninety-seven months' imprisonment.1

We also observe that it appears from the district court's

comments at Ives' sentencing hearing that one or more of these

co-conspirators were equally or more culpable than Ives. The

district court was sympathetic to Ives' arguments but stated

that, under the United States Sentencing Guidelines, he had no

authority to depart downward for the purpose of achieving

sentencing parity or equity between similarly situated co-

defendants.

Although an issue of first impression in this circuit, this

very question has been decided by numerous other federal courts

of appeal. Although there is a small degree of intra- and inter-

circuit conflict, the clear trend has been to hold that a

district court may not under any circumstances depart from a

recommended Guidelines' sentence -- either upward or downward --

for the purpose of achieving parity or equity between co-

defendants.2

1 Numerous other co-conspirators received sentences ranging from twelve to thirty-six months of actual prison time. The sentences were primarily the result of prosecutors' charging decisions, resulting from plea-bargains, not because of an exercise of unbridled discretion by sentencing courts. 2 See, e.g., United States v. Wogan,

, 1448- 1449 (1st Cir. 1991), cert. denied,

(1991); United States v. Joyner,

(2nd Cir. 1991); United States v. Higgins,

(3rd Cir. 1992); United States v. Kant,

, 270 n.3 (4th Cir. 1991); United States v. Geesa,

(6th Cir. 1991) (noting intra- circuit conflict), vacated upon decision to reconsider the issue en banc,

(6th Cir. 1991); United States v. Cea,

(7th Cir. 1990); United States v. Torres,

(8th Cir. 1990); United States v. Majia,

(9th Cir. 1991) (noting intra-circuit conflict); United Citing the distinct minority position, see United States v.

Ray,

(9th Cir. 1990); United States v.

Nelson,

(6th Cir. 1990), Ives proposes that

we should adopt a rule that permits a district court to depart

downward in order to assure sentencing equity between co-

defendants. Ives' argument in support of his proposal is as

follows: Although the Sentencing Guidelines expressly

contemplate that there will inevitably be some sentencing

disparities between co-defendants, see Joyner,

,

such differentials should only be the result of "reasoned"

sentencing factors entering into a district court's calculations

under the Guidelines' sentencing mechanism. "Reasoned" factors,

according to Ives, include a defendant's unique criminal history,

the degree of the defendant's involvement in a criminal

enterprise, whether he accepted responsibility for the crime, and

the like. Ives argues that such factors contributing to

disparate sentencing of co-defendants are perfectly reasonable.

We agree.

However, Ives further argues that sentencing disparities

that result from such determinative factors as a prosecutor's

(often seemingly arbitrary) decision to plea bargain favorably

with one co-defendant and unfavorably with a similarly situated

co-defendant are "unreasoned." Ives suggests that a district

court should have the discretion to depart downward in order to

States v. Jackson,

(10th Cir. 1991); United States v. Hendrieth,

(11th Cir. 1991).

3 correct such unwarranted disparities that would otherwise result

from a mechanical application of the Guidelines. Here we must

disagree.3

Because the Constitution is not implicated, resolution of

this issue must occur within the confines of the applicable

statute and the United States Sentencing Guidelines. The

operative provisions are

(b) and U.S.S.G.

§ 5K2.0. Those provisions state that a district court may depart

from the recommended Guidelines' sentence only in two instances.

First, departure is warranted when the Guidelines expressly

permit it based on specified aggravating or mitigating factors;

second, a district court may depart when "the court finds that

there exists an aggravating or mitigating circumstance of a kind

or to a degree not adequately taken into consideration by the

Sentencing Commission in formulating the [G]uidlines that should

result in a sentence different from that [recommended]." Nowhere

in the Guidelines is the existence of disparate sentences among

co-defendants listed as a permissible aggravating or mitigating

circumstance.

3 We hardly dispute that the occurrence of disparities among similarly situated co-defendants is a recurring feature of our criminal justice system, on both the state and federal levels. We observe that this has always been true, including well before the advent of structured discretion in the Sentencing Guidelines. Disparate sentencing appears to some degree inherent in our system. The Supreme Court has been repeatedly reminded of this fact and has consistently held that, even in the special context of the death penalty, there is nothing unconstitutional about it. See, e.g., Gregg v. Georgia,

, 199-200 & n.50 (1976) (plurality opinion); Pulley v. Harris,

(1984).

4 Thus, the only way disparate sentences could constitute a

reason for departure would be if they qualify as either an

aggravating or mitigating factor. Following the lead of at least

two other circuits, we hold that Ives' claim fails because

disparity of sentences among co-defendants simply cannot be

deemed an aggravating or mitigating circumstance. As such, it is

not a proper basis for departure, either upward or downward. See

United States v. Higgins,

(3rd Cir. 1992);

United States v. Joyner,

(2d Cir. 1991).4

Accordingly, the district court properly refused to depart

downward in Ives' case.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

4 Again, turning to the Supreme Court's capital jurisprudence, we note that the Court has repeatedly held that "aggravating" and "mitigating" factors are only those things that relate to the "defendant's character or record or any of the circumstances of the offense." See, e.g., Eddings v. Oklahoma,

(1982).

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