United States Court of Appeals

For the Eighth Circuit 

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No. 22-3371

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United States of America

 Plaintiff - Appellee

v.

Michael Aponte

 Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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Submitted: May 8, 2023

Filed: August 18, 2023

[Unpublished] 

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Before SHEPHERD, STRAS, and KOBES, Circuit Judges. 

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PER CURIAM. 

Michael Aponte and Rawy Correa-Perez were pulled over in Nebraska, and 

officers found cocaine in their spare tire. A jury convicted Aponte and Correa-Perez 

of two counts of conspiracy to possess with intent to distribute five kilograms or 

more of cocaine, 21 U.S.C. §§ 846, 841(b)(1)(A), and possession with intent to 

distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1), 841(b)(1)(A). 
-2- 

Both received the same Guidelines range, and the district court1 sentenced CorreaPerez to 97 months in prison but varied up and sentenced Aponte to 130 months in 

prison. Aponte appeals, alleging that because of disparities in his and Correa-Perez’s 

sentences, his sentence is procedurally erroneous and substantively unreasonable. 

We affirm. 

I. 

Aponte argues that the district court committed procedural errors in 

sentencing. Because Aponte failed to raise the issue below, we review for plain 

error. See United States v. Hall, 931 F.3d 694, 696 (8th Cir. 2019). To establish

plain error, Aponte must show that (1) there was error, (2) the error was plain, and 

(3) the error affected his substantial rights. See United States v. Miller, 557 F.3d 

910, 916 (8th Cir. 2009).

Aponte argues that the district court erred by finding that he “had a more 

material role” in the crime because, although he drove the car, Correa-Perez 

recruited and managed Aponte. See Sentencing Tr. 25. According to Aponte, this 

erroneous finding resulted in an erroneous disparity between his and Correa-Perez’s 

sentences. But because Correa-Perez’s sentencing record is not part of Aponte’s 

record on appeal, “we are not in a position to evaluate his claim of unwarranted 

disparities.” United States v. Hill, 8 F.4th 757, 761 (8th Cir. 2021). “In these 

circumstances, when a single defendant asserts on appeal that a similarly situated 

co-conspirator was sentenced differently, and both sentences are within the range of 

reasonableness, there is no principled basis for an appellate court to say which 

defendant received the appropriate sentence.” Id. (cleaned up). 

“In any event, disparate sentences among dissimilar defendants are not 

unwarranted.” United States v. Fry, 792 F.3d 884, 893 (8th Cir. 2015). The district 

1

The Honorable Brian C. Buescher, United States District Judge for the 

District of Nebraska.
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court acknowledged that, unlike Correa-Perez, Aponte drove the car involved in the 

conspiracy. It was not an error, plain or otherwise, for the district court to consider 

this difference in sentencing.

Aponte further argues that the district court erred by failing to adequately 

explain the disparity between Aponte’s and Correa-Perez’s sentences. But Aponte 

fails to provide authority requiring a district court to explain disparities between the 

sentences of co-defendants.2

 And “we have not defined with any specificity the 

extent to which the district court must explain the reasons for the extent of its upward 

variance: all that is generally required to satisfy the appellate court is evidence that 

the district court was aware of the relevant factors.” United States v. Anderson, 926 

F.3d 954, 958 (8th Cir. 2019) (citation omitted). To support the upward variance, 

the district court expressly referenced the relevant § 3553(a) factors, Aponte’s 

conduct during the traffic stop, and the extreme danger the large quantity of cocaine 

posed to the public. 

Aponte fails to identify an error, plain or otherwise, in his sentence.

II. 

In the alternative, Aponte argues that his sentence was substantively 

unreasonable. “We review with great deference the reasonableness of a sentence for 

abuse of discretion, and it will be the unusual case when we reverse a district court 

sentence as substantively unreasonable.” United States v. David, 682 F.3d 1074, 

1077 (8th Cir. 2012). In evaluating the reasonableness of a variance, we defer to the 

district court’s decision that the § 3553(a) factors justify the variance. See id. 

Aponte argues that the disparity between his and Correa-Perez’s sentences 

renders his sentence substantively unreasonable and the upward variance an abuse 

2

“Most courts say that the statutory direction to avoid unwarranted sentence 

disparities, see 18 U.S.C. § 3553(a)(6), refers to national disparities, not differences 

among co-conspirators.” Fry, 792 F.3d at 892 (collecting cases).
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of discretion. But “[i]t is not an abuse of discretion for a district court to impose a 

sentence that results in a disparity between co-defendants when there are legitimate 

distinctions between the co-defendants.” United States v. Arnold, 835 F.3d 833, 

842−43 (8th Cir. 2016) (citation omitted). 

Aponte’s other arguments are equally unavailing. He claims that the district 

court abused its discretion by considering the quantity of drugs in varying up because

the quantity of drugs also contributed to his base offense level. But “[w]e have 

repeatedly stated that factors that have already been taken into account in calculating 

the advisory Guidelines range can nevertheless form the basis of a variance.” United 

States v. Obi, 25 F.4th 574, 581−82 (8th Cir. 2022) (citation omitted). Aponte also 

argues that the district court did not consider his history and characteristics. But the 

record says otherwise. See Sentencing Tr. 23 (“[I]n crafting [this] sentence, I have 

considered all factors outlined under 18 U.S.C. 3553(a), including . . . the specific 

history and characteristics of the defendant.”). Aponte’s disagreement with how the 

district court weighed the factors does not alone render the sentence substantively 

unreasonable. See United States v. Isler, 983 F.3d 335, 344 (8th Cir. 2020). 

 

The district court did not abuse its discretion in varying up, and Aponte’s

sentence was substantively reasonable. 

III. 

The sentence is affirmed.

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