United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3718

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Eastern

v. * District of Arkansas.

*

Terry Lamont Williams, * [UNPUBLISHED]

*

Appellant. *

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Submitted: December 14, 2009

Filed: January 5, 2010

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Before LOKEN, Chief Judge, ARNOLD and BENTON, Circuit Judges.

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PER CURIAM.

Terry Williams appeals from his sentence of 235 months' imprisonment for

aiding and abetting the possession of cocaine with the intent to distribute it. See

21 U.S.C. § 841, 18 U.S.C. § 2(a). He presents two issues for our consideration.

Mr. Williams argues first that he was entitled to a departure from his guidelines

range of 235 to 293 months because his criminal history category over-represented the

seriousness of his criminal history. See U.S.S.G. § 4A1.3(b)(1). He asks us to
1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

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characterize the district court's1

 denial of his motion for a downward departure as a

"procedural error" that requires a de novo review under Gall v. United States, 552 U.S.

38, 51 (2007). We decline this invitation because what Gall requires, as relevant here,

is that a reviewing court decide as a matter of law whether a sentencing court correctly

determined the guidelines range applicable to a defendant's circumstances, id., and

there is no dispute that the district court did that in this case. The decision whether to

depart from the guidelines is entirely distinct and separate from the determination of

the appropriate guidelines range, and we may not review a district court's refusal to

grant a motion for a downward departure absent a showing of the district court's

unconstitutional motive or a failure on its part to recognize its legal authority to

depart. United States v. Saddler, 538 F.3d 879, 889 (8th Cir. 2008), cert. denied, 129

S. Ct. 770 (2008). Since Mr. Williams does not maintain that either of these

conditions is present here, his appeal on this point necessarily fails.

We find equally meritless Mr. Williams's contention that the district court

should have varied from the guidelines range because of his disadvantaged youth and

because he was unlikely to offend again. A complaint about a district court's failure

to give a sentence outside the guidelines is, at bottom, merely an assertion that the

sentence is unreasonable. When we review a sentence for reasonableness, we will

reverse only if a district court abused its discretion, that is, if in fixing the sentence the

court failed to consider a relevant factor that should have been given significant

weight, gave significant weight to an improper or irrelevant factor, or committed a

clear error of judgment in weighing the appropriate factors. United States v.

Thundershield, 474 F.3d 503, 509-10 (8th Cir. 2007). We presume, moreover, that

a sentence is reasonable if, as here, it is within the guidelines range. United States v.

Raplinger, 555 F.3d 687, 695 (8th Cir. 2009), cert. denied, 129 S. Ct. 2814 (2009).

In imposing the present sentence, the district court clearly had the required
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considerations outlined in 18 U.S.C. § 3553(a) in mind, did not take improper matters

into account, and carefully weighed the evidence that Mr. Williams offered in

mitigation at the sentencing hearing. That evidence was both relevant and cogent but

nothing about it compelled the district court to choose a lesser sentence than it gave

or rendered its sentence unreasonable. We thus see no abuse of discretion here.

Affirmed.

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