IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40307

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICHARD A. BLAKE,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:10-CR-450-2

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Richard A. Blake appeals the 135-month sentence

imposed following his guilty plea to conspiring with others to possess with intent

to distribute 496.12 kilograms of marihuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B), and 21 U.S.C. § 846. Blake contends that his sentence, which was

within the guidelines range of 135 to 168 months of imprisonment, is

unreasonable because of the sentencing disparity between his sentence and

those received by his codefendants.

United States Court of Appeals

Fifth Circuit

F I L E D

December 2, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-40307

The record reveals uncertainty regarding whether the argument that

Blake presents to us was properly preserved in the district court. We need not

resolve this issue, however, as the following analysis indicates that Blake cannot

prevail even under the less deferential, abuse-of-discretion standard. See United

States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). When, as in Blake’s case,

the district court imposes a sentence that is within a properly calculated

guidelines range, we apply a rebuttable presumption of reasonableness. See

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert denied, 130 S. Ct.

1930 (2010).

Pursuant to 18 U.S.C. § 3553(a)(6),the sentencing court shall consider “the

need to avoid unwarranted sentence disparities among defendants with similar

record who have been found guilty of similar conduct.” In Blake’s case, the

record reflects a factor that distinguishes Blake from his codefendants: Blake’s

co-defendants cooperated with the government’s investigative efforts. In light

of their cooperation, the government’s investigative case agent promised Blake’s

co-defendants that they would not be punished based on the information that

they provided. No such promise was made to Blake. Moreover, at sentencing,

Blake agreed with the district court’s guidelines calculations, which depended

on drug quantity, and he agreed with the resulting guidelines range. Also, the

district court’s sentencing determination was based, in part, on the observation

that Blake was the leader of the organization. Leadership is an appropriate

factor for a district court to consider when imposing a sentence that results in

a disparity with the sentence of a codefendant. See Cooks, 589 F.3d at 186. 

Finally, the sentencing decision reflects an individualized assessment based on

the facts of the case following consideration of the § 3553(a) factors. See Gall v.

United States, 552 U.S. 38, 49-51 (2007). Blake’s argument thus does not

overcome the presumption of reasonableness that applies to his withinguidelines sentence. See Cooks, 589 F.3d at 186.

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No. 11-40307

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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