391 A.2d 361 (1978)
STATE of Maine
v.
Wayne CLOUGH, Edward Barnes, Peter Panetti, Henry Alcantara.
Supreme Judicial Court of Maine.
September 29, 1978.
Henry N. Berry, III, Dist. Atty., Thomas L. Goodwin, Asst. Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Portland, Stephen M. Sumner (orally), Law Student, for plaintiff.
Ellsworth T. Rundlett, III, (orally), Portland, for defendants.
Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY, and NICHOLS, JJ.
GODFREY, Justice.
Like State v. Voisine, Me., 391 A.2d 1196 (1978), this case arose out of the payroll padding scheme in the Portland Public Works Department. The trial in this case was held two months after the trial of Voisine. With some exceptions, the evidence before the jury was similar to that described in the Voisine case. Like Voisine, *362 appellants were indicted for conspiracy to commit the crime of cheating by false pretenses and for cheating by false pretenses under former 17 M.R.S.A. §§ 951 and 1601. Appellants were four of the six employees who were most often overpaid.
As in Voisine, the evidence before the jury included the testimony of an outside auditor who demonstrated how each appellant had been overpaid by about $50 on about twenty occasions. Once again Roderick Morgan related his story of how he had padded the time records with resulting overpayment of appellants. Morgan again admitted that he had received kickbacks from some recipients and that some knew of the scheme. Again he testified that some did not give kickbacks, that some might not have known of the overpayments, and that he did not remember which ones knew of the scheme or paid kickbacks. Once again Mr. Flaherty related a prior inconsistent statement by Morgan in which Morgan had described a firm kickback scheme. In this trial there was no objection to Mr. Flaherty's testimony.
This case differed from the Voisine case in that a payroll clerk called by the State testified to a prior conversation with Morgan in which Morgan described a firm kickback scheme. There was no hearsay objection to the clerk's testimony. Appellants called several defense witnesses whose testimony tended to show that overtime arrangements under the applicable union bargaining agreement were complex. The purpose was to show that appellants might not have known they were being overpaid.
The trial court instructed the jury on a conspiracy theory and a false pretenses theory. In contrast to Voisine, the court charged the jury that a finding of conspiracy was not a prerequisite to a conviction on the false pretenses count. Appellants were acquitted on the conspiracy count and convicted on the false pretenses count. The principal ground of their appeals is that the evidence was insufficient to support the verdict and that the trial justice should have directed a verdict of acquittal. We must deny their appeals.
In his final charge to the jury, after stating the elements of the offense of cheating by false pretenses, the trial court instructed the jury that in order to convict on Count II they must find
"that there was the making of a pretense, that the defendants, individually or collectively, made or authorized such a pretense, that the pretense was false, they deceived the City of Portland, and money was obtained under such pretense."
There was no error in the instructions. See State v. Kerr, 117 Me. 254, 103 A. 585 (1918). From the evidence that appellants repeatedly cashed weekly pay checks that included overpayments averaging about $50 each and kept the proceeds, the jury was justified in finding beyond a reasonable doubt that appellants knowingly ratified or adopted the activity that was causing the overpayment, and that they acted with intent to defraud the city. The evidence was sufficient to support the jury finding.
Appellants contend that the trial court erred in excluding certain evidence. First, the trial court did not permit appellants' counsel to cross-examine Roderick Morgan about alleged specific troubles in his private life. The defense asserted that the examination would be relevant to their claim that Morgan really did forget who made kickbacks. A trial justice has broad discretion in determining whether the probative value of evidence is outweighed by the danger of confusing issues or by sheer waste of time. See Rule 403, M.R.Evid.; State v. Berube, Me., 297 A.2d 884 (1972). We are unable to conclude that the trial court abused its discretion in excluding evidence of Morgan's problems.
Second, appellants argue that the court erred in refusing to admit into evidence the actual text of the collective bargaining agreement governing employment relations in the Portland Public Works Department. The purpose of the proffered evidence was to show that the rules on overtime pay were complex and that the appellants could not be sure that they were being overpaid. Extensive testimony concerning *363 the agreement was already in the record. The court properly refused to admit the actual agreement because the other testimony was clear and uncontradicted. Thus, the agreement was only cumulative evidence.
The entry is:
Appeals denied.
Judgments affirmed.
DELAHANTY, J., did not sit.


681 A.2d 1168 (1996)
STATE of Maine
v.
Leland COLLINS.
Supreme Judicial Court of Maine.
Submitted on Briefs November 15, 1995.
Decided April 29, 1996.
David W. Crook, District Attorney, Augusta, ME, for the State.
Ronald Bourget, Bourget & Bourget, Augusta, ME, for Defendant.
Before WATHEN, C.J. and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
LIPEZ, Justice.
Leland Collins appeals from a judgment entered in the Superior Court (Kennebec County, Delahanty, C.J.) granting the probation officer's motion to amend the conditions of his probation. Collins contends that there was an insufficient basis for amending his probation conditions. We affirm the judgment.
Collins was indicted on one count of gross sexual assault, 17-A M.R.S.A. § 253 (Supp. 1995); one count of kidnapping, id. § 301 (1983); one count of aggravated assault, id. § 208 (1983); and one count of criminal threatening with a dangerous weapon, id. § 209 (1983). Collins entered pleas of guilty to aggravated assault and criminal threatening with a dangerous weapon. In exchange for Collins's guilty pleas the State dismissed the gross sexual misconduct and kidnapping charges. On the aggravated assault conviction Collins was sentenced to ten years in prison with all but six years suspended and four years probation.[1] The conditions of probation included, inter alia, Collins's participation in alcohol, substance abuse, and *1169 psychiatric counseling and treatment as recommended by the probation officer, and his refraining from the possession or use of intoxicating liquor[2].
During the time that Collins was reporting to his probation officer, the probation officer became aware of circumstances suggesting that Collins may have been using illegal substances or alcohol in violation of his conditions of probation. As a result of this suspicion, the probation officer asked Collins if he had been using drugs or alcohol the previous weekend. Collins smiled and replied no. Believing that Collins was lying, the probation officer asked Collins to take a urine test for drug analysis. Collins refused to take this test, stating that his conditions of probation did not require such a test.
Collins's probation officer filed a motion to amend the conditions of probation, requesting that the court clarify that Collins shall abstain from the use and possession of alcohol and drugs and that it add the condition that Collins submit to random search and testing for the presence or use of alcohol and drugs[3]. Following a hearing the court granted the motion and amended the conditions of probation to include, in addition to the original conditions of probation, the requirements that Collins submit to random search and testing for alcohol, drugs, fire-arms and dangerous weapons, refrain from possession and use of unlawful drugs or intoxicating liquor, and sign releases required by his probation officer to monitor compliance with the terms of his probation.

Right of Appeal
Collins filed a notice of appeal pursuant to M.R.Crim.P. 37. M.R.Crim.P. 37(a) provides that "[w]henever a judgment, order or ruling of the Superior Court is by law reviewable by the Law Court, such review shall be by appeal." The State argues, preliminarily, that Collins lacks the statutory right to directly appeal to the Law Court an error in modifying a condition of probation. We disagree.
"Appellate review in Maine is strictly statutory as the common law provided no appeal. The right of review by the Law Court is not a constitutional one and must, as a matter of jurisdictional concern, rest upon enabling legislation empowering the Court to act." Dow v. State, 275 A.2d 815, 818 (Me. 1971) (citations omitted). The statutory right of appeal from a revocation of probation decision is set forth in 17-A M.R.S.A. § 1207 (Supp.1995).[4] Although neither section 1207 nor any Maine statute specifically addresses a probationer's right of direct appeal of a court's decision to modify probation, 4 M.R.S.A. § 57 (1989) sets forth a general legislative grant of jurisdiction to the Law Court to entertain appeals by authorizing us to review "[c]ases on appeal from the Superior Court . . . questions of law arising on reports of cases . . . [and] cases presenting a question of law. . . ." See 2 Cluchey & Seitzinger, Maine Criminal Practice § 37.2 at VII-49 (1994).
In Dow v. State, 275 A.2d 815, 824 (Me.1971), we concluded that 4 M.R.S.A. *1170 § 57 provides a right of appeal from an order revoking probation because a revocation of probation proceeding is a "`case presenting a question of law' within the meaning of 4 M.R.S.A. § 57 as amended by Public Laws, 1965, Chapter 356, § 1." Although 17-A M.R.S.A. § 1207, enacted subsequent to our decision in Dow, currently provides a specific statutory basis for the right of appeal in probation revocation proceedings, we do not read into this specific statutory grant a negative implication that there is no right of appeal pursuant to 4 M.R.S.A. § 57 from a decision modifying a condition of probation.[5] Given that a probation revocation decision can be appealed pursuant to 17-A M.R.S.A. § 1207, and that the original imposition of a condition of probation can be appealed either as part of a direct appeal from a judgment of conviction or as part of a sentence appeal, see State v. Coreau, 651 A.2d 319, 320-22 (Me. 1994) (in a sentence appeal defendant challenged a condition of his probation); State v. Plante, 623 A.2d 166, 167-68 (Me.1993) (in an appeal from a judgment of conviction defendant challenged court's order to pay restitution as a condition of his probation), it would be illogical to conclude that a decision to modify a condition of probation is not subject to appeal pursuant to 4 M.R.S.A. § 57.[6]

Modification of Probation Conditions
Collins contends that although 17-A M.R.S.A. § 1202(2) (Supp.1995)[7] requires a hearing on notice to the probationer if the probation officer wants to modify or add to the conditions of probation, the statutory provision fails to provide any standard that must be satisfied for a court to modify the conditions of probation. He contends that a change in circumstances or some action by the defendant must be shown before the court can modify a condition of probation. We disagree.
Title 17-A M.R.S.A. § 1202 incorporates the standards set forth in 17-A M.R.S.A. §§ 1204(1) and 1204(2-A)(M)[8] (1983 & Supp. *1171 1995). When presented with a request to modify a condition of probation, the trial court must find that the requested condition would advance one of the purposes set forth in the statute. The court in the instant case concluded that Collins was already prohibited from the use of alcohol or drugs as a condition of his probation, and further found that providing Collins's probation officer with the authority to conduct random searches or tests would be a useful and reasonable means of monitoring Collins's compliance with the terms of his probation.
The court's determination is not clearly erroneous. Collins's probation officer testified that he felt the conditions sought to be imposed were necessary because of Collins's past criminal history, which involves alcohol and substance abuse; that the court ordering substance abuse counseling omitted the testing requirement only because of an oversight; that these conditions are generally ordered; that the amended conditions were necessary to supervise Collins adequately; and that random search and testing acts as a deterrent to the prohibited use of alcohol and illegal substances.
The entry is:
Judgment affirmed.
All concurring.
NOTES
[1]  On the criminal threatening with a dangerous weapon conviction Collins was sentenced to five years in prison to run concurrently with his sentence on the aggravated assault conviction.
[2]  There is conflicting evidence in the record regarding whether Collins was ordered to refrain from possession or use of intoxicating liquor. On the preprinted page of the probation order, general conditions of probation are listed including the condition that Collins must refrain from the use or possession of alcohol. On the second page which lists special conditions of probation, the provision for refraining from alcohol is not checked off. Although Collins's probation officer thought this arguable inconsistency gave Collins an unclear message, he took the position that the conditions of probation included the requirement that Collins refrain from the use or possession of alcohol. If this ambiguity was the result of a clerical error which did not memorialize accurately the probation condition imposed by the judge orally from the bench, a transcript of the sentencing hearing could have resolved it. However, neither party provided that transcript. See M.R.Crim.P. 50.
[3]  This condition of probation requires that Collins shall "submit to random search and testing for (alcohol) (drugs) (firearms) [and] (dangerous weapons)."
[4]  17-A M.R.S.A. § 1207 (Supp.1995) states:

Review of a revocation of probation pursuant to section 1206 must be by appeal. . . . In a probation revocation proceeding in the Superior Court, a person whose probation is revoked may appeal, as under Title 15, section 2115 and the applicable Maine Rules of Criminal Procedure, to the Supreme Judicial Court, sitting as the Law Court.
[5]  The legislative history of 17-A M.R.S.A. § 1207 reveals that, as originally enacted, this section provided that review of a revocation of probation "shall be by post-conviction review as provided in Title 15, sections 2121 to 2132." P.L.1979, ch. 701, § 29. Section 1207, enacted to simplify the criminal procedure relating to probation, was one of the provisions of an amendment to a bill amending criminal laws and procedures. Comm.Amend. A to L.D.1925, No. S-456 (109th Legis.1980). In 1981 section 1207 was amended to provide that review of a revocation of probation "shall be by appeal." P.L.1981, ch. 238, § 9. The reference to "post-conviction review as provided in Title 15, sections 2121 to 2132" was deleted because it conflicted with another provision in the bill regarding 15 M.R.S.A. § 2121(2) that stated that a "post-sentencing proceeding" did not include revocation of probation. L.D. 1281 (110th Legis.1981). In 1993 section 1207 was again amended and provides the current version of this statute. P.L.1993, ch. 234, § 3. It was amended to ensure that the provisions of the Maine Rules of Criminal Procedure regarding appeals apply to an appeal from a revocation of probation in the District Court or in the Superior Court. L.D. 1162, Statement of Fact (116th Legis.1993).
[6]  In reaching this conclusion we recognize that in State v. Colson, 472 A.2d 1381, 1382 (Me. 1984), we held that post-conviction review was the exclusive method of review for orders resulting from hearings dealing with non-payment of fines. We further noted that "the statutory scheme of post-conviction review `shall provide a comprehensive and . . . exclusive method of review. . . of post-sentencing proceedings.'" Id. (quoting 15 M.R.S.A. § 2122 (Supp.1995)). Although a modification of probation hearing is a post-sentencing proceeding in the sense that it occurs subsequent to sentencing while the sentence is being served, this proceeding is not included in the definition of a post-sentencing proceeding set forth in the post-conviction review statute. Moreover, a revocation of probation has been specifically excluded from the definition of a post-sentencing proceeding. See 15 M.R.S.A. § 2121(2) (Supp.1995). Thus it would be anomalous to treat a modification of probation hearing as a post-sentencing proceeding governed by the statutory scheme of post-conviction review.
[7]  17-A M.R.S.A. § 1202(2) (Supp.1995) states:

During the period of probation specified in the sentence . . . and upon application of a person on probation, the person's probation officer, or upon its own motion, the court may, after a hearing upon notice to the probation officer and the person on probation, modify the requirements imposed, add further requirements authorized by section 1204, or relieve the person on probation of any requirement that, in its opinion, imposes on the person an unreasonable burden.
[8]  17-A M.R.S.A. § 1204 (1983 & Supp.1995) states:

1. If the court imposes a section 1152 sentencing alternative which includes a period of probation, it shall attach such conditions of probation, as authorized by this section, as it deems to be reasonable and appropriate to assist the convicted person to lead a law-abiding life, provided that in every case it shall be a condition of probation that the convicted person refrain from criminal conduct.
. . . .
2-A. As a condition of probation, the court in its sentence may require the convicted person:
. . . .
M. To satisfy any other conditions reasonably related to the rehabilitation of the convicted person or the public safety or security.


235 Cal.App.2d 684 (1965)
THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD ALLEN GRESSMAN, Defendant and Appellant.
California Court of Appeals.
July 14, 1965.
 Arthur Lyle Robson, under appointment by the District Court of Appeal, for Defendant and Appellant.
 Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., and Paul N. Halvonik, Deputy Attorneys General, for Plaintiff and Respondent.
 DRAPER, P. J.
 A jury found defendant guilty of possession of opium (Health & Saf. Code,  11500). He was sentenced to prison and appeals from the judgment.
 [1a] At 3:45 a.m., two police officers in a squad car saw defendant walking along Market Street in San Francisco. They recognized him and called to him. He walked faster, said "I have nothing to say to you", and ran some 50 yards up the street, where he turned into the entrance of an all night pool hall and ran up the stairs to it. Just before he left the street, one officer saw that he was carrying "a small brown packet" in his right hand. One officer followed defendant up the stairs, and found him in the restroom. Defendant started for the door and the officer "grabbed him". During the ensuing struggle, the second officer arrived. Defendant reached inside his coat. The two officers removed his hand from his coat, and handcuffed him. An open knife was in the pocket from which defendant's hand had been removed. Officer Davis took defendant to the police car. Officer Taylor searched the area and found a brown paper packet or bag near the entrance to the restroom. It contained opium, a hypodermic, and several ampules of methedrine. He took the *687 bag to the police car, showed it to defendant, and asked defendant if it were his. Defendant said he had never seen the bag before. He also said that he was working on a big deal for the narcotics detail, and that the officers were spoiling his whole case for him. A few minutes later, the patrol wagon arrived, and as defendant was transferred to it he said "Whatever you found in the bag I have got a prescription for."
 At trial, the officers testified to those statements. Since there is no evidence that defendant was advised of his right to counsel and to remain silent, he asserts error in admission of all three of his statements (People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]).
 [2] The first statement, disclaiming all knowledge of the bag and its contents, cannot conceivably fall within the proscription of Dorado. It was wholly exculpatory, and was not used as a basis for offer of any contradictory admission or statement. The prosecution did present a strong circumstantial case that defendant in fact had carried the packet to the pool hall and dropped it there, but this case was in no way dependent upon or strengthened by the first statement of defendant.
 [3] For the same reasons, defendant's statement that he was working on a "big case" for other officers cannot supply a basis for reversal. Although he did state that he was working for the narcotics detail, this does not imply possession of narcotics by him, and the record shows no attempt to suggest to the jury that such inference should be drawn. Here, too, the prosecution refrained from any effort to impeach his statement by evidence that he was not so engaged.
 [4] The third statement: "Whatever you find in the bag I have got a prescription for", does imply that he had possessed the packet. But it was not in response to any question. Rather, it was volunteered by defendant when he was being transferred to the patrol wagon, some minutes after he had answered the question whether the packet was his. [5] Dorado bars statements made in response "to a process of interrogation that lent itself to obtaining incriminating statements" (People v. Dorado, supra, at p. 347; see also People v. Stewart, 62 Cal.2d 571, 578-579 [43 Cal.Rptr. 201, 400 P.2d 97]). A statement which is volunteered, and not elicited by any question, express or implied, does not fall within the rule. [6] The purpose of Dorado is the prevention of coercive police tactics (In re Lopez, 62 Cal.2d 368, 373 [42 *688 Cal.Rptr. 188, 398 P.2d 380]). It does not rest upon inherent unreliability of a voluntary admission, but upon the view that oppressive practices should be discouraged (id., p. 377).
 It may be argued, however, that the single question asked of defendant was continued or renewed because the act of the arresting officers in transferring him to the patrol wagon implied their disbelief of his earlier denial. But even if this be assumed, the first question was not proscribed by Dorado. Defendant had been arrested when, in the course of his struggle with the officers, he attempted to pull an open knife from his pocket. The narcotic had not yet been observed or found. Shortly thereafter, it was found under circumstances which left open the identity of its possessor. Thus the officers but gave defendant prompt opportunity to account for the presence of the narcotic near the place of his arrest. There was no interrogation designed to elicit incriminating statements (United States v. Konigsberg, 336 F.2d 844, 853, cited with approval in People v. Stewart, 62 Cal.2d 571, 578-579 [43 Cal.Rptr. 201, 400 P.2d 97]; see also People v. Ghimenti, 232 Cal.App.2d 76, 84 [42 Cal.Rptr. 504]).
 [7a] In any event, this statement cannot be deemed prejudicial. [8] Unlike a confession, a mere admission introduced in violation of the Dorado rule requires reversal only when it appears that a result more favorable to defendant (Cal. Const., art VI,  4 1/2; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]) would have been reasonably probable if the statement had been excluded (People v. Hillery, 62 Cal.2d 692, 712-713 [44 Cal.Rptr. 30, 401 P.2d 382]). [7b] This statement admitted only a lawful possession, i.e. under prescription. No evidence contradicted the statement. Defendant remained free to offer evidence that he in fact held a prescription. This defense was for him to establish (Ureta v. Superior Court, 199 Cal.App.2d 672, 675-676 [18 Cal.Rptr. 873]; People v. Martinez, 117 Cal.App.2d 701, 708 [256 P.2d 1028]). He failed to offer any such evidence. No reversible error is shown.
 [1b] Appellant's claim of insufficiency of the evidence lacks merit. The evidence, although circumstantial, was ample. [9] He also asserts error in the admission of evidence that, at a later date, he possessed narcotics paraphernalia when arrested. He had been released on bail, a bench warrant was later issued, and one of the arresting officers in this case saw him near the place of his previous arrest. Defendant again fled, was pursued and caught. When he was booked, the questioned articles were found near where he had been sitting *689 in the police station before formal booking. The fact that his physical possession of these articles was also proven by circumstantial evidence goes only to the weight of the evidence, and not to its admissibility.
 Judgment affirmed.
 Salsman, J., and Devine, J., concurred.


18‐2980‐cv
Massaro v. The Department of Education

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 21st day of May, two thousand nineteen.

PRESENT:
           JON O. NEWMAN,
           DENNIS JACOBS,
           CHRISTOPHER F. DRONEY,
                      Circuit Judges.
_________________________________________

YVONNE MASSARO,

                  Plaintiff‐Appellant,

                           v.                                   No. 18‐2980‐cv

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT
OF EDUCATION,

           Defendants‐Appellees.
_________________________________________
FOR PLAINTIFF‐APPELLANT:                     NATALIA KAPITONOVA, (Stewart Lee
                                             Karlin, on the brief), Stewart Lee
                                             Karlin Law Group, P.C., New York,
                                             NY

FOR DEFENDANTS‐APPELLEES:                    JULIE STEINER, Asst. Corp. Counsel,
                                             (Richard P. Dearing, Scott Shorr,
                                             Asst. Corp. Counsel, on the brief), for
                                             Zachary W. Carter, Corp. Counsel of
                                             the City of New York, New York, NY

      Appeal from a judgment of the District Court for the Southern District of

New York (Lorna G. Schofield, District Judge), dismissing a complaint alleging

age discrimination and retaliation.

      UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is affirmed in part, reversed in

part, and remanded.

       Yvonne Massaro, a former public school teacher, appeals from a judgment
of the District Court for the Southern District of New York (Lorna G. Schofield,
District Judge) dismissing under Fed. R. Civ. P. 12(b)(6) her complaint against the
New York City Department of Education (“DOE”). She alleged that school
personnel violated the Age Discrimination in Employment Act (“ADEA”) by
discriminating against her on the basis of her age and retaliating against her for
bringing an earlier age‐discrimination lawsuit. The District Court ruled that
Massaro had failed to exhaust her age‐discrimination claim and that the
allegedly retaliatory actions were not temporally proximate enough to the earlier
lawsuit to permit an inference of a causal connection. We assume the parties’
familiarity with the facts and procedures of this litigation and recount only
matters necessary for disposition of this appeal.
       On DOE’s motion to dismiss, “all factual allegations in the complaint are
accepted as true and all inferences are drawn in [Massaro’s] favor.” Littlejohn v.
City of New York, 795 F.3d 297, 306 (2d Cir. 2015).

                                         2
       Massaro was a teacher at the Edward R. Murrow High School, a New York
City public school, from 1993 until her retirement in 2016, teaching photography
there starting in 2009. After her first suit against DOE was dismissed, Massaro v.
Department of Education of City of New York, No. 08 CIV. 10678 LTS FM, 2011 WL
2207556 (S.D.N.Y. June 3, 2011), aff’d, 481 F. App’x 653 (2d Cir. 2012), she filed a
second lawsuit against DOE on December 19, 2011 (“2011 lawsuit”), which is the
suit underlying the retaliation claim at issue on this appeal.1 The 2011 lawsuit,
after amendment of the complaint, alleged, among other things, age
discrimination and retaliation for filing the first lawsuit. A state court dismissed
that second lawsuit, and the Appellate Division affirmed. Massaro v. Department
of Education of City of New York, 993 N.Y.S.2d 905 (N.Y. App. Div., 1st Dep’t 2014).
      In the pending lawsuit, Massaro alleges that, beginning in 2012, while the
2011 lawsuit was pending, she was the subject of a campaign of harassment by
the head of her school’s fine arts program, and the school’s new principal. She
alleges the following conditions and actions to which she, but not other teachers,
was subjected:
        ● her classes were overcrowded;
      ● she was assigned a disproportionately high number of students with
serious behavioral and developmental problems;
      ● she was assigned to classrooms with no temperature control, which were
excessively cold in winter and extremely hot in summer;
       ● beginning in 2014, she was assigned a teaching schedule of four
consecutive one‐hour classes, leaving her no time between periods to prepare for
class or use the bathroom;
       ● two infractions were recorded in Massaro’s file that were not attributable
to her, and she was improperly deemed to have been “excessively absent” based
on absences she incurred while she was serving on grand jury duty.

       Massaro named several teachers who were not subjected to each of the
negative conditions listed above, along with their ages, which ranged from late
20s to about 50.

        1 The District Court dates the initiation of the 2011 lawsuit to October 2011, but according to the
state court docket it was filed in December. See Complaint, Massaro v. Department of Education, No.
0114214/2011 (N.Y. Sup. Ct. Dec. 19, 2011).
                                                      3
      Massaro filed a charge of discrimination with the EEOC in August 2016.
The EEOC charge consisted of a one‐page completed form and a seven‐page
narrative addendum. On the form, Massaro checked a box indicating that her
claim was based on “retaliation”; another box marked “age” was left blank.
       In the pending action, removed to federal court, Massaro claims that she
was subjected to age discrimination and that she was retaliated against for
pursuing the 2011 lawsuit. The District Court granted DOE’s motion to dismiss.
Massaro v. Department of Education of City of New York, No. 17 CIV. 8191 (LGS),
2018 WL 4333989 (S.D.N.Y. Sept. 11, 2018). The District Court concluded that
Massaro had failed to exhaust her age‐discrimination claim because it was not
asserted in the EEOC charge nor was it reasonably related to the allegations of
retaliation that were asserted in the charge, including the addendum. Id. at *3. On
the retaliation claim, the District Court concluded that Massaro was precluded
by res judicata from claiming retaliation on the basis of any adverse actions that
occurred prior to the dismissal of the 2011 lawsuit in May of 2013, and that the
adverse actions alleged to have taken place after the dismissal were too
temporally remote from the initiation of that lawsuit in 2011 to show a
cognizable retaliatory motive. Id.
      This Court conducts a de novo review of a dismissal for failure to state a
claim. See Littlejohn, 795 F.3d at 306.
       1. Age discrimination. In her EEOC charge, Massaro checked a box
indicating that the alleged discrimination was based on “retaliation”; a separate
box for indicating discrimination based on “age” was left blank. However, no
party contends, and the District Court did not find, that this omission is
dispositive. It is not. See Williams v. New York City Housing Authority, 458 F.3d 67,
70‐71 (2d Cir. 2006). What Massaro relies on are the facts alleged in her
addendum to the EEOC charge. However, the addendum makes no reference to
age discrimination; it merely states Massaro’s age. This did not give the EEOC
adequate notice that Massaro had made a claim of age discrimination. See
Williams, 458 F.3d at 70. Because Massaro failed to exhaust her age‐
discrimination claim, the District Court’s ruling dismissing it is affirmed.
      2. Retaliation. “[F]or a retaliation claim to survive a . . . motion to dismiss,
the plaintiff must plausibly allege that: (1) defendants discriminated — or took
an adverse employment action — against [her], (2) ‘because’ [s]he has opposed
any unlawful employment practice.” Vega v. Hempstead Union Free School District,

                                          4
801 F.3d 72, 90 (2d Cir. 2015) (Title VII context).2 In deciding whether an
allegation is plausible, “judges [are] to rely on their ‘experience and common
sense,’ and to consider the context in which a claim is made.” Irrera v.
Humpherys, 859 F.3d 196, 198 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009)). As with all retaliation claims, a plaintiff must show that adverse
action was taken because of protected activity. See Lovejoy‐Wilson v. NOCO Motor
Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (retaliation claim under Americans
With Disabilities Act) (“ADA”).
       An employee engages in protected activity that might give rise to a
retaliation claim when she “participate[s] in any manner in . . . litigation under
[the ADEA].” 29 U.S.C. § 623(d).
       An adverse employment action, in the context of a retaliation claim, “is
any action that ‘could well dissuade a reasonable worker from making or
supporting a charge of discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006)). “Context
matters” in this analysis: something might be a “petty slight” to one person but
“matter enormously” to another, such that it could “deter a reasonable employee
from complaining about discrimination.” Id. (quoting Burlington Northern, 548
U.S. at 69). “This . . . covers a broader range of conduct than does the adverse‐
action standard for claims of [substantive] discrimination,” id., which are limited
to “discriminatory actions that affect the terms and conditions of employment,”
id. (quoting Burlington Northern, 548 U.S. at 64).
      As for causation, a causal connection can be shown “indirectly, by
showing that the protected activity was followed closely by discriminatory
treatment.” Littlejohn, 795 F.3d at 319 (quoting Gordon v. New York City Board of
Education, 232 F.3d 111, 117 (2d Cir. 2000)).
       The District Court deemed Massaro’s protected activity to have occurred
only when her second lawsuit was filed in December 2011 and declined to
consider any litigation events that occurred during the pendency of that lawsuit,
prior to its dismissal in May 2013. However, this Court has previously measured
the occurrence of a protected activity from mid‐litigation events, such as
notifications to appear for a deposition or as a witness. See Richardson v. New York
        2 ADEA claims are analyzed under the same framework as claims under Title VII and the ADA.
See Kopchik v. Town of East Fishkill, New York, 759 F. App’x 31, 35 (2d Cir. 2018) (applying Title VII) (citing
Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000)); Palumbo v. St. Vincent’s Medical Center, 4 F. App’x 99,
102 (2d Cir. 2001) (applying ADA).
                                                       5
State Department of Correctional Service, 180 F.3d 426, 446‐47 (2d Cir. 1999),
abrogated on other grounds by Burlington Northern, 548 U.S. at 53; Treglia v. Town of
Manlius, 313 F.3d 713, 720‐21 (2d Cir. 2002) (in ADA context, specifically rejecting
employer’s argument that the protected activity occurred only upon employee’s
filing of administrative charges); see also Infantolino v. Joint Industry Board of
Electrical Industry, 582 F. Supp.2d 351, 359 (E.D.N.Y. 2008).
       As for retaliation, Massaro alleged several actions that “could well dissuade
a reasonable worker from making or supporting a charge of discrimination.”
Vega, 801 F.3d at 91 (quoting Burlington Northern, 548 U.S. at 57) (emphasis in
Vega). Although some of the conditions she complains of, considered
individually, might reasonably be tolerated by many teachers, the allegation of
their combination, alleged to have been imposed only on her, suffices to survive
a motion to dismiss.
       With respect to causation, the District Court erred in applying res judicata
to preclude consideration of the adverse actions that occurred during the
pendency of the 2011 lawsuit. “[W]hen the second action concerns a transaction
occurring after the commencement of the prior litigation, claim preclusion
generally does not come into play.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,
400 F.3d 139, 141 (2d Cir. 2005) (holding that res judicata does not bar employee’s
Title VII retaliatory discharge action) (internal quotation marks omitted).
       Although DOE correctly notes that Massaro’s EEOC charge sets August
2013 as the “earliest” “date[] discrimination to[ok] place,” the three‐month gap
between May 2013, when the 2011 lawsuit was dismissed, and August 2013
would not preclude temporal proximity. In the context of a school calendar,
judicial “experience and common sense,” Irrera, 859 F.3d at 198 (quoting Iqbal,
556 U.S. at 679), permit the Court to recognize that May to August is summer
break. In that context, it is plausible that August 2013, the start of a new
semester, was the school personnel’s earliest opportunity to retaliate against
Massaro following the dismissal of her 2011 lawsuit.
       Whether Massaro’s allegations can survive a motion for summary
judgment or a trial remains to be determined upon remand. We rule only that the
retaliation allegations, taken together, are sufficiently plausible to survive a
motion to dismiss.

                                          6
     Affirmed as to dismissal of age discrimination claim, reversed and
remanded as to retaliation claim.
                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk

                                       7


         Case: 15-12346   Date Filed: 07/20/2016   Page: 1 of 16

                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-12346
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 8:14-cr-00269-SDM-TBM-3

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                  versus

LUIS FERNANDO MANCILLAS MEDINA,
a.k.a. Perico,
a.k.a. Nino,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                            (July 20, 2016)
              Case: 15-12346    Date Filed: 07/20/2016   Page: 2 of 16

Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Luis Mancillas Medina appeals his 210-month sentence, imposed after

pleading guilty to one count of conspiracy to distribute and possess with intent to

distribute five or more kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and one count of laundering of monetary

instruments and engaging in monetary transactions in property derived from

specified unlawful activity, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h),

and 1957. On appeal, Medina argues that the district court erred in applying a

dangerous weapons enhancement based on the possession of firearms by Medina’s

co-conspirators. Medina also contends that the district court erred in deciding he

was not entitled to a minor role reduction. Lastly, Medina argues that his sentence

is substantively unreasonable, as he is similarly situated to another member of the

conspiracy who received a lesser sentence. Upon review of the record and the

parties’ briefs, we affirm.

                                 I. BACKGROUND

      A grand jury charged Medina with one count of conspiracy to distribute and

possess with intent to distribute five kilograms or more of cocaine and one count of

laundering of monetary instruments and engaging in monetary transactions in

property derived from specified unlawful activity. He pled guilty to both counts.

                                          2
             Case: 15-12346     Date Filed: 07/20/2016   Page: 3 of 16

      Medina and several other co-conspirators were part of a large-scale drug

trafficking and money laundering organization that transported and distributed

hundreds of kilograms of narcotics—including cocaine, methamphetamine, and

marijuana—throughout the United States. One of Medina’s co-defendants, Hugo

Ramirez, was a leader of the organization. The criminal enterprise used several

means to transport drugs and drug proceeds, including shipping drugs via parcel

service, concealing drugs in cars, and sending couriers cross-country to retrieve

drug proceeds.

      Medina joined the organization in 2001 and worked closely with Ramirez.

Medina delivered hundreds of kilograms of cocaine, methamphetamine, and

marijuana and also received, counted, concealed, and transported millions of

dollars in drug proceeds for Ramirez. As one of the leaders of the criminal

conspiracy, Ramirez was responsible for transporting 400 to 500 kilograms of

cocaine and thousands of pounds of marijuana throughout the United States.

Medina worked directly for Ramirez and assisted him in almost every transaction.

      Another of Medina’s co-defendants, Maria Hernandez, performed a similar

role within the conspiracy, albeit on a much smaller scale. Hernandez was brought

into the conspiracy by family members and acted as a courier with little or no

understanding of the scope of the broader drug trafficking conspiracy. She was

                                         3
              Case: 15-12346    Date Filed: 07/20/2016    Page: 4 of 16

responsible for transporting drug proceeds on at least three occasions and was

accountable for at least $200,000 in transported drug proceeds.

      Law enforcement officials eventually succeeded in infiltrating and

dismantling the criminal enterprise. In addition to arresting Medina and seizing a

large quantity of narcotics and drug proceeds, officials also seized multiple

firearms while arresting Medina’s co-conspirators. These included two handguns

in a backpack that also contained several grams of methamphetamine and

marijuana, a rifle and several handguns recovered from a hotel room where

officials also seized several kilograms of cocaine, a handgun located in a car

containing over two kilograms of methamphetamine, and a rifle surrendered to law

enforcement by a confidential witness.

      After Medina pled guilty, a probation officer prepared a presentence

investigation report (“PSI”) that calculated a Sentencing Guidelines range of 168 to

210 months’ imprisonment. The calculation included a dangerous weapons

enhancement to Medina’s base offense level because several of his co-conspirators

possessed and transported firearms in conjunction with the drug trafficking

operation.

      At his sentencing hearing, Medina objected to the calculation of his

guidelines range, arguing that the dangerous weapons enhancement was

inappropriate because there was no evidence that he possessed or was involved in

                                          4
              Case: 15-12346    Date Filed: 07/20/2016    Page: 5 of 16

the transportation of firearms and that he had no reason to foresee that the firearms

were part of the drug trafficking and money laundering conspiracy. He also

requested a minor role designation, arguing that, because he acted only as a

courier, his role was distinguishable from those of his co-conspirators. The district

court denied Medina’s objection to the application of the dangerous weapons

enhancement and his request for a minor role designation. After hearing

arguments from both parties, the court sentenced Medina to 210 months’

imprisonment for each count, sentences at the top of the guidelines range, to be

served concurrently. Medina raised no objection to his sentence before the district

court. This is his appeal.

                                  II. DISCUSSION

A.    Dangerous Weapons Enhancement

      On appeal, Medina contends that the district court erred in applying a two-

level dangerous weapons enhancement when calculating his guidelines range. We

review a district court’s interpretation and application of the Sentencing Guidelines

de novo and its factual findings for clear error. United States v. Smith, 480 F.3d

1277, 1278 (11th Cir. 2007).

      “The federal Sentencing Guidelines provide that, if a dangerous weapon

(including a firearm) was possessed during a drug-trafficking offense, then a

defendant’s offense level should be increased by two levels, unless it is clearly

                                          5
              Case: 15-12346    Date Filed: 07/20/2016   Page: 6 of 16

improbable that the weapon was connected to the offense.” Id.; U.S.S.G.

§ 2D1.1(b)(1). A court may apply this enhancement even if the defendant was not

himself in possession of a weapon as long as his co-conspirators were. See United

States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). For the enhancement to

apply in those circumstances, the government must establish by a preponderance of

the evidence that “(1) the possessor of the firearm was a co-conspirator, (2) the

possession was in furtherance of the conspiracy, (3) the defendant was a member

of the conspiracy at the time of possession, and (4) the co-conspirator possession

was reasonably foreseeable by the defendant.” Id. (internal quotation marks

omitted). Once the government demonstrates that a firearm was present, “the

evidentiary burden shifts to the defendant to show that a connection between the

firearm and the offense is clearly improbable.” Id. (internal quotation marks

omitted). For sentencing purposes, whether a firearm was possessed is a factual

finding, which we review for clear error. United States v. Stallings, 463 F.3d 1218,

1220 (11th Cir. 2006).

      Regarding the reasonable foreseeability of a firearm’s possession, “we have

noted that numerous cases have recognized that guns are a tool of the drug trade.

There is a frequent and overpowering connection between the use of firearms and

narcotics traffic.” Id. at 1246 (internal quotation marks omitted). Notably,

however, “the mere fact that a drug offender possesses a firearm does not

                                          6
                Case: 15-12346        Date Filed: 07/20/2016        Page: 7 of 16

necessarily give rise to the firearms enhancement.” Stallings, 463 F.3d at 1221.

“The government must show some nexus beyond mere possession between the

firearms and the drug crime.” Id. In other words, the government must

demonstrate that a firearm had “some purpose or effect with respect to the drug

trafficking crime; its presence or involvement cannot be the result of accident or

coincidence.” Id. at 1220 (internal quotation marks omitted).

       The district court did not clearly err in applying the firearms enhancement to

Medina. Possession of firearms by Medina’s co-conspirators was reasonably

foreseeable and in furtherance of the conspiracy. While Medina was not

personally found with a firearm, law enforcement officials seized multiple firearms

while apprehending his co-conspirators. 1 These firearms were found in close

proximity to narcotics, suggesting that their possession was in furtherance of the

       1
          It is not entirely clear from the record whether and which of these weapons were loaded
when law enforcement officers seized them. Medina contends that the government’s failure to
demonstrate that the guns were loaded makes the enhancement improper because it casts doubt
on whether possession of the firearms was in furtherance of the conspiracy. But even assuming
the guns were not loaded, we see no clear error in concluding that possession of those guns by
Medina’s co-conspirators was in furtherance of the conspiracy and reasonably foreseeable by
him. See Pham, 463 F.3d at 1241 (affirming district court’s application of dangerous weapons
enhancement after police seized unloaded gun at co-conspirator’s residence). Moreover, at the
sentencing hearing, counsel for the government stated that he had found a report confirming that
at least one of the guns seized was loaded. Although it is not clear to what report counsel was
referring, Medina’s attorney acknowledged seeing the report and stated he did not “have any
reason to disbelieve the contents of that report.” Sentencing Hr’g Tr. at 24 (Doc. 90) (“Doc.”
refers to the docket entry in the district court record in this case.) On appeal, Medina argues that
this report is hearsay, but we have repeatedly concluded that “reliable hearsay can be considered
during sentencing.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001). And
Medina’s counsel acknowledged that he had no reason to think the report unreliable. Indeed,
speaking more broadly, Medina provides no reason to believe that this gun, or any other seized
by law enforcement officials, was not loaded.
                                                 7
              Case: 15-12346     Date Filed: 07/20/2016    Page: 8 of 16

overall trafficking conspiracy. See United States v. Fields, 408 F.3d 1356, 1359

(11th Cir. 2005) (evidence that firearms were present at locations where drugs

were sold supported the conclusion that possession of the firearms was in

furtherance of the drug conspiracy). Moreover, given that the conspiracy itself

involved trafficking large amounts of valuable narcotics and proceeds from drug

sales, it is reasonably foreseeable that Medina’s co-conspirators “felt the need to

protect their inventory and proceeds.” Id.; see also Pham, 463 F.3d at 1246 (“[W]e

have found it reasonably foreseeable that a co-conspirator would possess a firearm

where the conspiracy involved trafficking in lucrative and illegal drugs.”). “In

light of the vastness of the conspiracy and the large amount of drugs and money

being exchanged in this case, the district court did not clearly err by finding that it

was reasonably foreseeable that a firearm would be possessed by a co-conspirator.”

Pham, 463 F.3d at 1246.

      Medina also argues that the district court’s application of the enhancement

was inappropriate because he did not plead guilty to any firearms offense. But this

argument “misperceives the distinction between a sentence and a sentence

enhancement.” United States v. Martinez, 924 F.2d 209, 211 (11th Cir. 1991)

(internal quotation marks omitted). In deciding whether to apply a sentencing

enhancement, a district court is permitted “to consider relevant conduct for which

the defendant was neither charged nor convicted, so long as proof of that conduct

                                           8
              Case: 15-12346     Date Filed: 07/20/2016    Page: 9 of 16

is supported by reasonable indicia of reliability.” Id. And Medina never argues

that the evidence on which the district court relied when sentencing him was

unreliable. In sum, we see no clear error in the district court’s application of a

dangerous-weapons enhancement to the calculation of Medina’s guidelines range.

B.    Minor Role Designation

      Medina contends that the district court should have granted him a minor role

designation when calculating his guidelines range. A district court’s determination

that the defendant is not entitled to a reduction for a minor role in the offense is a

finding of fact, reviewed only for clear error. United States v. Rodriguez De

Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant bears the

burden of establishing his qualification for a minor role reduction by a

preponderance of the evidence. United States v. Alvarez-Coria, 447 F.3d 1340,

1343 (11th Cir. 2006).

      A defendant may receive a two-level reduction “[i]f the defendant was a

minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). The

determination of whether to apply a mitigating role adjustment “is heavily

dependent upon the facts of the particular case.” Id. § 3B1.2, comment. (n.3). The

two-level minor role adjustment “applies to a defendant . . . who is less culpable

than most other participants in the criminal activity, but whose role could not be

described as minimal.” Id. § 3B1.2, comment. (n.5).

                                           9
             Case: 15-12346      Date Filed: 07/20/2016   Page: 10 of 16

      In determining whether to grant a minor role reduction, “(1) the court must

compare the defendant’s role in the offense with the relevant conduct attributed to

him in calculating his base offense level; and (2) the court may compare the

defendant’s conduct to that of other participants involved in the offense.” Alvarez-

Coria, 447 F.3d at 1343. “[A] defendant is not automatically entitled to a minor

role adjustment merely because [he] was somewhat less culpable than the other

discernable participants.” United States v. Bernal-Benitez, 594 F.3d 1303, 1320-21

(11th Cir. 2010) (internal quotation marks omitted).

      The district court did not clearly err in denying Medina a minor role

reduction. Medina contends that a minor role designation is appropriate because

he operated exclusively as a courier and was uninvolved in the broader aspects of

the trafficking conspiracy. But our precedent is clear that “courier status in and of

itself is not dispositive of whether a defendant is entitled to . . . a downward

adjustment for role in the offense.” De Varon, 175 F.3d at 942. And indeed, when

looking beyond his title as a “courier” it becomes clear that Medina played more

than a minor role in the trafficking enterprise. He worked directly for and

extensively with Ramirez, one of the leaders of the conspiracy—a fact that

supports the district court’s denial of his request for a minor role designation. See

id. (a defendant’s “status and assigned tasks” are factors properly considered in

deciding whether to grant a minor role reduction). The district court found that

                                          10
                 Case: 15-12346         Date Filed: 07/20/2016        Page: 11 of 16

Medina “tucked right in underneath [Ramirez] in the hierarchy.” Sentencing Hr’g

Tr. at 28 (Doc. 90).2 We cannot say this finding of fact was clearly erroneous,

especially since Medina has presented no reason for us to question it. In addition

to his status within the conspiracy, Medina transported hundreds of kilograms of

narcotics and millions of dollars in drug proceeds for the trafficking organization,

which further supports the district court’s denial of a minor role designation. See

De Varon, 175 F.3d at 943 (“[T]he amount of drugs in a courier’s possession

. . . may be the best indication of the magnitude of the courier’s participation in the

criminal enterprise . . . .”).

       Nor does Medina ever demonstrate that he played a minor role in relation to

his co-conspirators. He asserts that his role was comparable to that of Hernandez,

who received a minimal role designation. But Hernandez acted as a courier on far

fewer occasions than Medina and had little understanding of the scope of the

broader drug trafficking conspiracy. And beyond identifying Hernandez as having

performed a comparable role, Medina does nothing to show that he is “less

culpable than most other participants” in the conspiracy. U.S.S.G. § 3B1.2,

comment. (n.5). We thus agree with the district court that the facts show Medina’s

base offense level was properly calculated based on the conduct attributable to him

and that he is not entitled to a minor role reduction.

       2
           “Doc.” refers to the docket entry in the district court record in this case.
                                                   11
               Case: 15-12346       Date Filed: 07/20/2016       Page: 12 of 16

C.     Reasonableness of Medina’s Sentence

       Medina’s final contention is that his sentence is substantively unreasonable.

We review the reasonableness of a sentence under a deferential abuse of discretion

standard. 3 Gall v. United States, 552 U.S. 38, 51 (2007). “[I]t is only the rare

sentence that will be substantively unreasonable.” United States v. Rosales-Bruno,

789 F.3d 1249, 1256 (11th Cir. 2015) (internal quotation marks omitted). Where,

as here, a sentence is within the guidelines range, we ordinarily expect it to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). That a

sentence is below the statutory maximum is a factor favoring its reasonableness.

See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The party

challenging the sentence bears the burden of establishing that the sentence is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

       In reviewing the reasonableness of a sentence, we first ensure that the

district court committed no significant procedural error, and then we examine

whether the sentence was substantively unreasonable based on the totality of the

circumstances. Gall, 552 U.S. at 51. As Medina does not contend that the district

       3
         The government contends that Medina’s challenge to the substantive reasonableness of
his sentence is subject to plain error review because he did not raise an objection to the
reasonableness of his sentence before the district court. But to our knowledge, we have yet to
decide in a published opinion whether we review the substantive reasonableness of a defendant’s
sentence for plain error if the defendant failed to raise any objection before the district court.
Regardless, we need not decide whether plain error review would apply in this case because, as
explained below, Medina’s sentence is reasonable under the abuse of discretion standard.
                                                12
             Case: 15-12346     Date Filed: 07/20/2016    Page: 13 of 16

court committed a procedural error, we need only consider whether his sentence

was substantively unreasonable.

      Under 18 U.S.C. § 3553(a), the district court must impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in

§ 3553(a)(2), including promoting respect for the law, deterring criminal conduct,

and protecting the public from the defendant’s future criminal conduct. See 18

U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guidelines range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      A district court abuses its discretion and imposes a substantively

unreasonable sentence if it “(1) fails to afford consideration to relevant factors that

were due significant weight, (2) gives significant weight to an improper or

irrelevant factor, or (3) commits a clear error of judgment in considering the proper

factors.” Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks omitted).

Thus, deciding whether a district court has imposed a substantively unreasonable

sentence involves an inquiry into whether the statutory factors in 18 U.S.C.

§ 3553(a) support the sentence. See Gonzalez, 550 F.3d at 1324. “The weight to

be accorded any given § 3553(a) factor is a matter committed to the sound

                                          13
             Case: 15-12346      Date Filed: 07/20/2016   Page: 14 of 16

discretion of the district court . . . .” United States v. Clay, 483 F.3d 739, 743 (11th

Cir. 2007) (internal quotation marks omitted).

      Medina argues that his sentence was substantially harsher than that received

by his co-defendant Hernandez. He reasons that this demonstrates an unwarranted

sentencing disparity between the sentence he received and what Hernandez

received. While it is true 18 U.S.C. § 3553(a)(6) counsels courts to avoid

unwarranted disparities when sentencing defendants, “[d]isparity between the

sentences imposed on codefendants is generally not an appropriate basis for relief

on appeal.” United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir. 2001).

Section 3553(a)(6) “seeks only to avoid unwarranted sentencing disparities.”

United States v. Statham, 581 F.3d 548, 556 (7th Cir. 2009) (emphasis added)

(internal quotation marks omitted). Thus, “a defendant is not entitled to a lighter

sentence merely because his co-defendants received lighter sentences.” United

States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (internal quotation marks

omitted). This is because “adjust[ing] the sentence of a co-defendant in order to

cure an apparently unjustified disparity between defendants in an individual case

[would] simply create another, wholly unwarranted disparity between the

defendant receiving the adjustment and all similar offenders in other cases.”

United States v. Chotas, 968 F.2d 1193, 1198 (11th Cir. 1992).

                                          14
             Case: 15-12346     Date Filed: 07/20/2016   Page: 15 of 16

      Even were we to compare Medina’s sentence to that of Hernandez, Medina

has failed to establish that the discrepancy between the sentence he received and

the sentence Hernandez received is unwarranted. Medina worked directly under

Ramirez, one of the leaders of the conspiracy. And in his role as courier, he

transported hundreds of kilograms of narcotics and smuggled millions of dollars in

drug proceeds. In contrast, Hernandez was recruited into the conspiracy by family

members and had little-to-no understanding of the broader trafficking conspiracy.

Although she did transport drug proceeds, she only appears to have done so on

approximately three occasions. Given the differences between Hernandez’s

conduct and Medina’s conduct, and Medina’s failure to identify any comparable

criminal defendant who received a materially different sentence, we can identify

no abuse of discretion in the district court’s conclusion that Medina’s conduct

warranted a harsher sentence.

      Even were we to conclude there was an unwarranted disparity between

Medina’s sentence and that of Hernandez, we would nonetheless uphold Medina’s

sentence as reasonable because he has failed to demonstrate that this disparity

outweighed the other § 3553(a) factors. The need to avoid sentencing disparities is

only one of several factors district courts consider when sentencing a defendant.

See 18 U.S.C. 3553(a). And district courts are entitled to decide the weight

accorded to each factor. Clay, 483 F.3d at 743. Aside from pointing to

                                         15
             Case: 15-12346     Date Filed: 07/20/2016    Page: 16 of 16

Hernandez’s sentence, Medina presents no reason to believe that his sentence is

substantively unreasonable given all of the other § 3553(a) factors. If anything, the

fact that his sentence is within the guidelines range counsels in favor of its

reasonableness, as does the fact that his sentence is below the statutory maximum.

See Hunt, 526 F.3d at 746; see also Gonzalez, 550 F.3d at 1324. As such, Medina

has not satisfied his burden of showing that his sentence is substantively

unreasonable. See Tome, 611 F.3d at 1378.

                                III. CONCLUSION

      Medina has failed to demonstrate the district court committed a clear error in

applying a dangerous-weapons enhancement to the calculation of his guidelines

range or denying him a minor role reduction. He has also failed to show that the

district court abused its discretion by imposing a substantively unreasonable

sentence. Accordingly, we affirm.

      AFFIRMED.

                                          16


491 F.Supp. 351 (1980)
Craton LIDDELL et al., Plaintiffs,
v.
The BOARD OF EDUCATION OF the CITY OF ST. LOUIS, MISSOURI et al., Defendants.
No. 72-100C(C).
United States District Court, E. D. Missouri, E. D.
May 21, 1980.
Supplemental Findings of Fact and Conclusions of Law June 3, 1980.
*352 Joseph McDuffie, William P. Russel, St. Louis, Mo., for plaintiffs Craton Liddell et al.
John H. Lashly, Paul B. Rava, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, Mo., for defendants Daniel L. Schlafly et al.
Thomas A. Connelly, City Counselor, St. Louis, Mo., for City of St. Louis.
J. Kent Lowry, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Robert J. Koster, King, Yusman, Koster & Buechner, St. Louis, Mo., for Mary Puleo et al.
Anthony J. Sestric, St. Louis, Mo., for Janice Adams et al.
William E. Caldwell, Richard B. Fields, Ratner & Sugarmon, Memphis, Tenn., Charles H. Staples, St. Louis, Mo., Thomas I. Atkins, New York City, Gen. Counsel, NAACP, for plaintiffs-intervenors Caldwell.
Dempster Holland, Newton McCoy, St. Louis, Mo., for Evelyn Hasty.
Craig M. Crenshaw, Jr., Drew S. Days, III, Asst. Atty. Gen., Civil Rights Div., Dept. of Justice, Washington, D.C., Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for the U.S.
Charles W. Kunderer, Klutho, Cody & Kilo, St. Louis, Mo., for City of St. Louis.
Charles R. Oldham, St. Louis, Mo., for teacher Local.

ORDER
MEREDITH, District Judge.
This cause came to be heard pursuant to the remand, opinion, and order of the United States Court of Appeals for the Eighth Circuit handed down on March 3, 1980. After conferences with all counsel and a hearing on the Desegregation Plan filed by the defendant Board of Education of the City of St. Louis on May 2, 1980, and the Court, having considered the positions and objections of the parties, being duly advised in the premises, with findings of fact and conclusions of law to follow, it is hereby:

ORDERED, ADJUDGED AND DECREED that:
1. The defendant Board of Education of the City of St. Louis ("Board") shall not discriminate on the basis of race in the operation of its public schools.
2. The proposed plan of school desegregation submitted by the defendant Board on May 2, 1980, amended on May 8, May 12, and May 15, 1980, is hereby approved, with the modifications required by this Order, for implementation at the commencement of the 1980-81 school year. The Board is ordered to immediately undertake all steps necessary to the smooth and efficient implementation of the plan and shall operate its schools in accordance with the said Desegregation Plan and the further directions contained in this Order. No changes shall be made in the plan without the prior approval of this Court.
3. The defendant Board is hereby directed to keep the Adams school open and operating during the 1980-81 school year as a grade K-8 school. On or before January 1, 1981, the Board shall prepare and submit to the Court a proposal for the future use of the Adams school which includes a cost analysis for any renovation which may be necessary and an evaluation of the efforts necessary to maintain the Adams school as a stably integrated facility.
4. The Board's desegregation budget, as set forth in the Plan, is approved subject to the requirement that continued efforts be made to reduce the actual costs of implementation, but without impairing the quality of the Plan's components.
5. With respect to that part of the desegregation budget pertaining to pupil transportation costs, the Board and the State defendants are directed to investigate further ways to reduce the actual costs of pupil transportation and report to the Court on these efforts by June 16, 1980, with due regard being given to the safety of the children and the quality of service.
*353 6. The defendant Board is authorized and directed to transfer the sum of $4,668,000 from its debt retirement account to the building and renovation account to be applied to such building modifications as are needed to expand the magnet schools and achieve the conversion to the grade configuration described in the Desegregation Plan.
7. The State of Missouri is ordered to fund one-half of the cost of implementing and operating the Board's Desegregation Plan; in no event shall the State be required to pay more than $11,076,206 which is one-half of the Desegregation budget herein approved by the Court for the school year 1980-1981. In the subsequent years, as long as the Plan remains in effect, the State shall pay one-half of the cost of desegregation, subject to such adjustments as the Court may deem necessary or proper. The sum ordered to be paid herein will include the additional dollars for transportation requested in the Desegregation budget. Payments shall be made in four equal installments at the same time as regular payments. No payment by the State for this purpose shall be made from the school Foundation Program. Any amounts overpaid will be refunded to the State or credited on the next payment. Payment by the State to the Board of Education of the City of St. Louis for the costs of the Desegregation Plan shall be in addition to the payments heretofore made by the State to the said Board, as well as any increase in those sums as the Board would have received absent this Order. The State is directed to report to the Court by July 1, 1980, the amount of funds available and when they will be paid.
8. The defendant Board is applying to the United States Department of Education for funds under ESAA which will be used to offset the cost of certain components of the Desegregation Plan. The said Department of Education is required and urged to expedite the processing of these applications of the Board in order to assist the Board in complying with the mandate of the Eighth Circuit and the requirement therein stated that the Plan be implemented no later than the beginning of the 1980-81 school year. The Department is requested to report about its action hereunder by July 1, 1980.
9. The defendant Board shall continue the study of the feasibility of curriculum improvements to improve the quality of education throughout the system.
10. The defendant Board shall continue to study and evaluate the compensatory and remedial educational programs described in the Desegregation Plan and shall recommend for approval by the Court such modifications and improvements as will appear advisable and proper to achieve the goals stated by the appellate court.
11. No inter-or intra-district permissive transfer shall be permitted which will increase the segregated nature of either the sending or receiving school.
12. The State defendants, the United States, and the St. Louis Board of Education are ordered and directed as follows:
a) To make every feasible effort to work out with the appropriate school districts in the St. Louis County and develop, for 1980-81 implementation, a voluntary, cooperative plan of pupil exchanges which will assist in alleviating the school segregation in the City of St. Louis, and which also insures that inter-district pupil transfers will not impair the desegregation of the St. Louis school district ordered herein, and submit such plan to the Court for approval by July 1, 1980.
b) To develop and submit to the Court by November 1, 1980, a plan for the consolidation or merger and full desegregation of the separate vocational educational programs operated by the Special District of St. Louis County and the school district of the City of St. Louis, for implementation in the 1981-82 school year.
c) To develop and submit to the Court by November 1, 1980, a suggested plan of inter-district school desegregation necessary to eradicate the remaining vestiges of government-imposed school segregation in the City of St. Louis and St. Louis County.

*354 d) To develop and submit to the Court by November 1, 1980, in conjunction with the Community Development Agency of the City of St. Louis, a suggested plan for insuring that the operation of federally-assisted housing programs in the St. Louis metropolitan area will facilitate the school desegregation ordered herein.
e) To develop and submit a plan to the Court by July 1, 1980, which expands programs and schools so that all the schools in the City of St. Louis may be eligible for Title I funding for the year 1980-81 under Title I of the U. S. Elementary and Secondary Education Act of 1965.
13. The defendant Board shall assign its faculty and staff in accordance with the following provisions:
All principals, teachers, and other certificated staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for black students or white students. Commencing with the 1980-81 school year, and continuing yearly thereafter for the period inclusive of 1984-1985, the Board shall assign the staff described above so that the ratio of black to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system. For the purpose of this provision, "substantially the same" means within plus or minus five percentage points of the respective ratio in the entire school system or two individuals, whichever is more.
The same criteria shall apply to non-certificated personnel.
The Board shall, to the extent necessary to carry out its Desegregation Plan, direct members of its staff, as a condition of continued employment, to accept new assignments.
14. On October 30, 1980, on March 31, 1981, and on the same dates annually thereafter until further order of the Court, the Board shall file with the Court a report setting forth the following information:
(a)(i) The number of students by race enrolled in the school district;
(ii) The number of students by race enrolled in each school of the district;
(iii) The number of students by race enrolled in each classroom in each of the schools in the district as well as the race of the teacher in each such classroom.
(b)(i) The number of full-time teachers by race in the district;
(ii) The number of full-time teachers by race in each school in the district;
(iii) The number of part-time teachers by race in the district;
(iv) The number of part-time teachers by race in each school in the district.
(c) Descriptions of the requests and the results which have accrued, by race, under the majority to the minority transfer provision which is a part of the Plan.
(d) Statement of the number of permissive transfers granted since the Plan became effective, the race of the students who were granted such transfers, and the school district to which the transfers were allowed.
(e) Brief description of any present or proposed construction or expansion of facilities.
(f) Statement whether the Board has sold or abandoned any school facility, equipment, or supplies having a total value of more than $500.00 since the Plan became effective.
15. All construction of new schools, additions to old schools, closing of existing schools, sales or leases, shall be submitted to this Court with notice given to all parties, and shall not be carried out without prior approval of this Court.
16. A broadly based Monitoring Committee of citizens residing in the City of St. Louis will be appointed by the Court to assist in the implementation of the Desegregation Plan, providing an ongoing review, reporting all the aspects of the Plan, identifying aspects requiring special attention and making recommendations to the Board *355 with regard to any such matter. The Monitoring Committee will have full access to the Board and to the Court and shall report to the Court on a regular basis.
17. Dr. Gary Orfield, who has assisted so well this Court in connection with the Desegregation Plan, shall continue to assist this Court as its expert with regard to the implementation phase and further will provide assistance to the Monitoring Committee and to the parties particularly in connection with the plan of inter-district cooperation and the development of a vocational program for city and county combined. The expenses and fees for these services shall be paid one-half by the State and one-half by the Board.
18. Defendant Board shall seek the assistance of civic groups, including business, labor, religious, and parents' groups, in informing the community of the essential facets of the Desegregation Plan and enlisting the maximum public support of all sections of the community to insure a smooth and effective operation of the Plan. All persons concerned shall be guided by the consideration that the widest acceptance by the community is essential to the success of the Plan.
19. The Court will not grant any stay of this Order.
20. The Court retains jurisdiction of this action to ensure that the provisions of this Order are effectively being carried out.

SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
These Findings of Fact and Conclusions of Law supplement the Court's Order of May 21, 1980, filed on that day.

Findings of Fact
1. On March 3, 1980, the United States Court of Appeals for the Eighth Circuit issued an opinion reversing the opinion filed by this Court, remanding it to this Court and ordering a plan of desegregation to be filed within 60 days. The opinion of the Court of Appeals placed primary responsibility for drawing this plan with the Board of Education of the City of St. Louis. This Court immediately requested the attorneys for all parties to meet together on Thursday, March 13, 1980, and to meet with the Court on Friday, March 14, 1980, in order to consider ways and means of implementing the mandate of the U. S. Court of Appeals.
2. The Court met with the attorneys on Friday, March 14, 1980, after they met together on March 13, and appointed a group of 20 citizens of the City of St. Louis, 10 white and 10 black, to form a Citizens Committee from those names suggested by the lawyers. The Court selected as chairman of the Citizens Committee Edward T. Foote, Dean of the Law School of Washington University. This Committee worked without compensation. The Citizens Committee met on March 21, 1980, with the Court and with Milton Lewis, Regional Director of the Community Relations Service of the Department of Justice; Dr. Albert L. Walker, Assistant Commissioner of Education of the Department of Education of the State of Missouri; and Dr. Robert Wentz, Superintendent of the Board of Education of the City of St. Louis, all of whom had members of their staffs present, and Dr. Gary Orfield, who had been appointed as the expert by the Court. All members of the Citizens Committee and Dr. Orfield had been sent copies of the opinion of the United States Court of Appeals for the Eighth Circuit in this cause and were familiar with its contents. The Committee met in constant session for five days a week from March 21, 1980 through May 1, 1980. There was a constant flow of information from the School Board's committee and from Dr. Orfield to the Citizens Committee. This Committee had a great input on the Plan drawn by the School Board, received input from the community, and did an excellent job. The Committee selected Charles Brown to serve as vice-chairman and Anita Bond to serve as secretary.
3. The defendant Board of Education of the City of St. Louis, within a few days of the receipt of the opinion, order, and mandate of the appellate court, concluded that no review of the appellate court decision *356 should be sought. It established an internal committee of 14 administrators, teachers, and other personnel who remained in constant session until the final plan was filed on May 2, 1980. In the course of their investigation and assembling of data, five members of the internal committee visited the school districts of Milwaukee, Louisville, and Columbus, Ohio. Tentative plans were filed from time to time between March 3 and May 2, 1980. Copies of these plans were furnished to Dr. Gary Orfield, the Citizens Committee, and were published in the daily newspapers and the television media for the purpose of informing the citizenry. The School Board Plan was unanimously approved by all twelve members of the Board of Education of the City of St. Louis. Dr. Orfield approved the Plan with minor recommendations, and on May 8, 1980, the Board of Education of the City of St. Louis accepted Dr. Orfield's recommendations and filed an amendment to the Plan on May 8, 1980.
4. The Citizens Committee filed a report with the Court. Some of its suggestions had been adopted by the School Board; some had not. Dr. Orfield filed a report with the Court. The United States, which had intervened as a party plaintiff, supported the amended Desegregation Plan.
5. The Board of Education of the City of St. Louis considered all the plans described in the opinion of the Court of Appeals and concluded that neither the Stolee nor the Colton Plan was appropriate in the St. Louis situation. The Court of Appeals found that based upon the evidence, an interdistrict remedy has the best chance of permanently integrating the schools in the metropolitan St. Louis area. All parties and this Court generally agree with this proposition.
6. This Court has heretofore made a finding in its original opinion that implementing the Stolee Plan would result in an all black system in a few years. Because of this finding the Eighth Circuit did not require that the Stolee Plan be implemented.
7. The Colton Plan was found by the Eighth Circuit to be in part constitutionally defective. In addition, its application to the enrollment composed of 76 percent black and 24 percent white students would allow black students to spend only a few years in an integrated school with the balance of their education required to be spent in segregated schools. This Court finds, based on the evidence, that transferring students from an integrated school to a one-race school, as advocated in the Colton Plan, would have a detrimental effect upon students and would be educationally unsound. It also would fail to achieve effective desegregation.
8. The Orfield approach was found to be permissible by the Eighth Circuit. The School Board also selected certain features of the Colton approach in its Plan. The Court of Appeals in its opinion found that a school with a black enrollment between 30 and 50 percent shall be considered to be integrated and that with the system which has a ratio of 76 percent black and 24 percent white students this compels the continuing existence of some all black schools.
9. The cost of implementing the Desegregation Plan in the St. Louis public schools is estimated to be $22,152,413 for the 1980-81 school year. This figure is in excess of the normal budget which exceeds $125,000,000 annually plus $33,000,000 received from federally funded programs. Based on the testimony before the Court, the Court finds the additional $22,152,413 to be a reasonable figure for the cost of implementing this Plan.
10. The State of Missouri, through the Department of Education, testified that under its regulations it pays 80 percent of transportation costs. However, the maximum cost it will pay is 125 percent of the average cost throughout the entire State of Missouri, which includes rural schools, and the cost of transportation in the City of St. Louis is about twice the cost of transportation in other places in the state. Under these circumstances, the amount the State of Missouri will pay for transportation is considerably less than half of the cost of transportation in St. Louis. For example, *357 the cost of transporting a student every day throughout the school year in St. Louis is $515 per year. The statewide average is $147 per student per year. The State will only pay 125 percent of $147. The cost in Kansas City is $249 per student per year. This Court in its Order has requested the State of Missouri, the St. Louis School Board, and the United States to examine transportation costs to see if they can be reduced and to report to the Court by June 16, 1980.
11. The components of the Desegregation Plan are educationally sound and satisfy the requirements of the opinion, decree, and mandate of the Court of Appeals with regard to integrating the enrollment in the schools through the adoption of clustering in the elementary schools and by reassignment and transportation in the high schools. Existing magnet schools will be continued and six new magnet schools added. A variety of specialty programs will be offered to all students in the district. Development and enrichment programs, which will include remedial and compensatory features but will not be limited to students with low achievement test scores, will be offered in those schools in North St. Louis which cannot be integrated because of heavy imbalance in the racial composition of the enrollment in the district. Further, the Plan sharpens the provisions applicable to permissive transfers and encourages broader use of this technique, commits the efforts of the Board to seek and develop interdistrict plans of voluntary cooperation with school districts of St. Louis County, adopts a "Singleton" type faculty assignment plan, provides for regular reporting to the Court, monitoring of the Plan, and citizen participation in the implementation stage. The Court finds that these provisions comply with the requirements of the mandate of the Eighth Circuit and that they constitute a sound and reasonable response to that mandate. Indeed, all of the improvements in the instructional area, including the conversion to middle schools, will assist in remedying the educational deprivations which resulted from the dual system which the Court of Appeals found to have existed. In addition, these improvements in the quality of education will encourage students, both black and white, to remain in the system.
12. The State of Missouri, which together with State officials and the State Board of Education was joined as a defendant, is jointly and severally liable with the defendant Board for the costs pertaining to the Desegregation Plan. The State of Missouri, which prior to 1954 mandated school segregation, never took any effective steps to dismantle the dual system it had compelled by constitution, statutory law, practice and policy. The State of Missouri is liable for the de jure segregation which existed in the St. Louis Public Schools. Thus, as recognized in the Court of Appeals opinion, it is within the equitable power of this Court to require the State to pay a portion of the costs of desegregation. In the light of the financial position of the district, the nature of the violations committed by the parties, and all the appurtenant circumstances, it is appropriate that the State be required to pay one-half of the total costs to implement the Desegregation Plan for the public schools of the City of St. Louis.
13. For the school year 1980-81 these desegregation costs are estimated to amount to $22,152,413 and the State share of these costs is $11,076,206. Any part of said sum of $11,076,206 which is not expended by the Board for the purposes of the Desegregation Plan should be refunded by the Board to the State. Further investigation should be undertaken by the defendants to determine whether the cost of pupil transportation may be reduced without adverse effect upon the safety of the children and the quality of service. The State should have discretion in the determination of the source or sources of the State funds with which to pay its share of the costs except that no payment for this purpose should be made from the school Foundation Program, which is essential to the operation of all school districts throughout the state.
14. The other 50 percent should be paid by the Board from the following sources: The Board has funds available in the building service fund which was established for *358 the retirement of bonds heretofore issued for the purpose of purchasing, erecting, furnishing and repairing school buildings. As of June 30, 1980 there will be in said fund an excess balance which will make it possible, without jeopardizing the district's ability to meet its bond repayment objectives, to apply the sum of $4,668,000 to the payment of the building modifications which are needed to expand the magnet and other alternative schools and achieve the conversions to the grade configuration described in the Desegregation Plan. The sum necessary to provide the remaining funds needed should consist of the federal funds which the Board should receive under the ESAA program and under other federal programs pertaining to providing financial assistance for the desegregation of the public schools.
15. The Board has received substantial funding under Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. § 241a et seq.) for the last several years. Title I is a program of federal financial assistance which provides funding for remedial programs in schools with concentrations of students from economically disadvantaged backgrounds. During the 1979-80 school year 118 of the 134 schools in the St. Louis school system were eligible for Title I programs. The 16 schools which did not have sufficient concentrations of low income students to qualify under Title I were all located in effectively all-white areas of the City. Under the Board's Plan each of these sixteen schools will either be closed or desegregated.
It is important that students and schools previously eligible for Title I programs not be deprived of the benefits of those programs because of the implementation of a school desegregation plan. Every effort should be made to maximize the number of Title I eligible schools within the statutory framework of Title I.
16. Considering the school closings, number of students transported, distance of transportation, and other facets of the Desegregation Plan of the Board taken as a whole under all the circumstances present here, the burden of desegregation will be borne as equally as possible.
17. The existing dual system of vocational education split between the City and St. Louis County is neither educationally sound nor administratively efficient. These systems, established in 1965 and 1967, are further evidence of the continuing failure of the State to take any effective measures to disestablish the dual system in the State. The State has the power to effectively merge these systems. Its failure to exercise that power is part and parcel of its failure to take affirmative steps to eradicate root and branch the dual system it once formally mandated.
18. As the Court of Appeals noted, "many factors ... including actions of the state and federal government, have intensified racial segregation in North St. Louis." It is critical that future actions in the housing area of all government bodies, federal, state and local, facilitate and not hamper school desegregation. Given the past history of federally assisted housing programs in the St. Louis area, it is necessary that a specific plan to facilitate and not hamper school desegregation be developed by the appropriate government bodies.
19. The Adams school shall remain open and operating for a period of one year during the 1980-81 school year as a grade K-8 school on an experimental basis.

Conclusions of Law
1. In the pending proceedings on remand of this cause pursuant to the opinion, decree, and mandate issued by the United States Court of Appeals for the Eighth Circuit on March 3, 1980, the issue for adjudication by this Court is whether or not the Desegregation Plan submitted by the defendant Board of Education of the City of St. Louis on May 2, 1980, as amended, meets the requirements set by the appellate court in its aforesaid opinion, decree, and mandate.
2. Upon examination of the Desegregation Plan filed by the Board as aforesaid, and having considered the report of the Court's expert, Dr. Gary Orfield, filed *359 herein on May 5, 1980, and the evidence adduced by the parties, it is the conclusion of this Court that the said Desegregation Plan, as amended, meets the requirements of and complies with the opinion, decree, and mandate of the Eighth Circuit and is sound and feasible under the circumstances. It should also be noted that the United States, which intervened in this cause at the request of this Court pursuant to the suggestion of the appellate court, and took the position of plaintiff intervenor, directly supported the Board's Desegregation Plan, as amended, as being in compliance with the mandate of the Eighth Circuit.
3. The Court recognizes that the Board's Plan, although it conforms to the Court of Appeals' mandate, will not provide a fully desegregated education for every black child in the school system. However, the Board's Plan, developed under the Orfield approach, holds the promise of providing the "greatest possible degree of actual desegregation, taking into account the practicalities of the situation," Davis v. Board of School Commis., 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). Included in the "practicalities" of this case is the current absence of suburban school districts amongst the parties of record. No suburban school district is now a party to this case and none can be ordered to participate until its rights have been adjudicated.
4. The Board in its plan has proposed a "Singleton" type faculty assignment plan. See Singleton v. Jackson Mun. Sep. Sch. Dist., 419 F.2d 1211, 1217-18 (5th Cir. 1970). Such plans have been universally recognized as an appropriate method of eliminating the racial identifiability of school facilities in a desegregation school system.
5. The post-Brown Fourteenth Amendment obligation of a State that has operated a legally imposed racially dual school system is clear. See, e. g., United States v. State of Missouri, 363 F.Supp. 739, 747 (E.D.Mo.1973), aff'd in relevant part, 515 F.2d 1365 (8th Cir. 1975), cert. denied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975):
A state, such as Missouri, which has in the past operated a racially dual system of public education, pursuant to state constitutional and statutory requirements [and continuing policy, practice, custom and usage] is, and has been since 1954, under an additional constitutional obligation to take such affirmative measures as are necessary to disestablish that dual system and eliminate the continuing vestiges of that system. (Emphasis added.)
Upon the decision in Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), it became the constitutional duty of the defendant State of Missouri to obliterate all vestiges of such state-imposed segregation. This obligation, as fleshed out in Brown II's progeny, required the state "to do more than abandon its prior discriminatory" conduct. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979) (Dayton II). Rather, the State, and, upon its default, now the Court, has the duty "[to] eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). See also Dayton II, supra; Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458-61, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II); Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and companion cases; Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and companion cases. As the Supreme Court squarely held in Milliken II, supra, the Fourteenth Amendment requires responsible "state officials ... to take the necessary steps `to eliminate from the public schools all vestiges of state-imposed segregation.'" 433 U.S. at 289-90, 97 S.Ct. at 2762.
6. In sum, the State defendants stand before the Court as primary constitutional wrongdoers who have abdicated their affirmative remedial duty. Their efforts to pass the buck among themselves and to other state instrumentalities must be rejected:

*360 The State cannot escape responsibility for the racial discrimination disclosed in this case or the obligation to correct the effects of such discrimination by neatly compartmentalizing the authority and responsibilities of its various instrumentalities and then contending that no single instrumentality is wholly responsible for the unlawful segregation or has the power to correct the unlawful segregation.
United States v. State of Missouri, supra at 748. Since "[t]he primary responsibility for insuring a constitutional structure of public education is the state's, ... it is appropriate for the Court to order the state" to affirmatively participate in remedial efforts, id. at 749, including the provision of funding, to the extent necessary, for the desegregation efforts ordered by the Court. See, e. g., Milliken II, supra; United States v. Missouri, supra; Evans v. Buchanan, 447 F.Supp. 982 (D.Del.), aff'd, 582 F.2d 750 (3d Cir. 1978), cert. denied, ___ U.S. ___, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980).
7. The State of Missouri defendants have been found and held liable with the Board of Education of the City of St. Louis for the segregated conditions in the St. Louis public schools. The State should bear an appropriate share of the cost of implementing the Desegregation Plan. Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). See also, United States v. State of Missouri, supra; Evans v. Buchanan, supra, and United States v. Board of School Commissioners, 456 F.Supp. 183, 191-192 (S.D.Ind.1978), aff'd, No. 78-1800 (7th Cir., April 29, 1980).