United States Court of Appeals

For the Eighth Circuit

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No. 17-1447

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Tammy Velazquez, also known as Tammy Velasquez

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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Submitted: February 20, 2018

Filed: June 13, 2018

[Unpublished]

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Before SMITH, Chief Judge, SHEPHERD and STRAS, Circuit Judges.

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PER CURIAM.

In September 2016, Tammy Velazquez pled guilty to conspiracy to

manufacture, distribute, and possess with intent to distribute actual methamphetamine

and a mixture or substance containing methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C), and 846. With a total offense level of 37 and a criminal

history category of II, Velazquez’s advisory Sentencing Guidelines range was 235 to
293 months, USSG Ch. 5, Pt. A., with a statutory maximum of 240 months, 21 U.S.C.

§ 841(b)(1)(C). At sentencing, the district court granted a downward variance of 35 1

months before reducing the sentence by 30 percent under USSG § 5K1.1. The district

court refused, however, to grant a further variance based on Velazquez’s policy

argument that the higher sentencing ranges for actual methamphetamine, as opposed

to mixtures of methamphetamine, are not based on sound policy considerations or

empirical data and result in unwarranted sentence disparities and unduly harsh

sentences. The district court sentenced Velazquez to 140 months imprisonment to be

followed by three years of supervised release. 

Velazquez appeals her sentence, claiming the district court procedurally erred 

and imposed a substantively unreasonable sentence by refusing to consider her policy

argument. We affirm. 

We turn first to Velazquez’s claim that the district court procedurally erred. 

A sentencing court commits procedural error by “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—including an explanation for

any deviation from the Guidelines range.” United States v. Williams, 624 F.3d 889,

896 (8th Cir. 2010) (internal quotation marks omitted). Velazquez claims the district

court’s refusal to consider her policy argument constituted procedural error because

the court failed to consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). We disagree. 

The Honorable James E. Gritzner, United States District Judge for the

1

Southern District of Iowa. 

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The Sentencing Commission “clearly considered [the need to avoid

unwarranted sentence disparities] when setting the Guidelines ranges.” Gall v.

United States, 552 U.S. 38, 54 (2007). Thus, when a sentencing judge “correctly

calculate[s] and carefully review[s] the Guidelines range, he necessarily g[ives]

significant weight and consideration to the need to avoid unwarranted disparities.” 

Id. There is no dispute here that the district court correctly calculated the Guidelines

range as set forth by the Sentencing Commission. In addition, the court explicitly

acknowledged its consideration ofthe need to avoid unwarranted sentence disparities

among defendants. We therefore find the district court did not commit procedural

error.

In regards to Velazquez’s challenge to the substantive reasonableness of her

sentence, we find the district court did not abuse its discretion in imposing a 140-

month sentence: a sentence well below the Guidelines range. See United States v.

Lazarski, 560 F.3d 731, 733 (8thCir. 2009) (finding where court sentenced defendant

below the Guidelines range, “it is nearly inconceivable that the court abused its

discretion in not varying downward still further”). Although “district courts are

entitled to reject and vary categorically from[particular] Guidelines based on a policy

disagreement with those Guidelines,” they are not required to do so. United States

v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (alteration in original) (quoting

Spears v. United States, 555 U.S. 261, 265-66 (2009)). Nor is a court required to

consider a policy argument regarding sentencing disparities under the Guidelines, as

long as the court is “[]aware of its power to do so.” See United States v. Roberson,

517 F.3d 990, 995 (8th Cir. 2008) (“We do not believe . . . a district court now acts

unreasonably, abusesits discretion, or otherwise commits error if it does not consider

the crack/powder sentencing disparity.”). 

Here, the district court chose not to consider the sentencing disparity between

actual methamphetamine and mixtures of methamphetamine when sentencing

Velazquez. Although the court was aware of its ability to vary, the court stated it

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“[was] not going to make a judgment on policy arguments” and it “[did not] take into

consideration . . . the policy argument” when ultimately determining the sentence. 

We find the district court was under no obligation to consider the sentencing

disparity, see id., but was instead entitled to apply the Guidelines as promulgated by

the Sentencing Commission. Because “the record demonstrates that the court

properly considered the § 3553(a) factors,” we find the sentence imposed to be

reasonable. Lazarski, 560 F.3d at 734. 

For the reasons stated, we affirm Velazquez’s sentence. 

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