### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 a p p e a ls the 135-month sentence imposed following his guilty plea to conspiring with others to possess with intent to distribute 496.12 kilo grams of marihuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 21 U.S.C. § 846. Blake contend s t h at his sentence, which was within the guidelines range of 135 to 168 months of imprison m e n t , is unreasonable because of the sentencing disparity between his s e n t e nce and those received by his codefendants. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 2 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-40307 Document: 00511683149 Page: 1 Date Filed: 12/02/2011No. 11-40307

The record reveals uncertainty regardin g w hether 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 th e l e s s d e f e r e nti al, 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 prop e rly 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

. § 3 5 5 3 (a) (6) , th e s entencing court shall consider “the need to avoid unwarranted sentence disparities among defendants with similar record who have been found gu i l ty 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 agre e d w ith 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 le a d e r o f the organization. Leadership is an appropriate factor for a district court to c o n s i d e r 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.

2 Case: 11-40307 Document: 00511683149 Page: 2 Date Filed: 12/02/2011No. 11-40307

For the f

o r e go i n g reasons, the judgment of the district court is AFFIRMED.

3 Case: 11-40307 Document: 00511683149 Page: 3 Date Filed: 12/02/2011