* The HONORABLE DAVID M. EBEL, United States Circuit Judge for the United States Court of Appeals for the Tenth Circuit, sitting by designation.

** The HONORABLE RAYMOND C. CLEVENGER, III, United States Circuit Judge for the United States Court of Appeals for the Federal Circuit, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2812

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Alvin Bernell Moore, * * [TO BE PUBLISHED] Defendant - Appellant. *

___________ Submitted: May 15, 2009 Filed: September 11, 2009

___________ Before LOKEN, Chief Judge, EBEL * and CLEVENGER, ** Circuit Judges.

___________ PER CURIAM. Alvin Moore pleaded guilty to conspiracy to obtain money and property by fraud in violation of 18 U.S.C. § 371 and aggr avated identity theft in violation of 18 U.S.C. § 1028A. Due to a four-offense-le vel increase because he caused fraud loss of approximately $21,000, and his astonishing thirty-four criminal history points, the1 The HONORABLE PAUL A. MAGNUSON, United States District Judge for the District of Minnesota.
-2- parties agreed that Moore’s advisory guide lines range for the conspiracy count was 18 to 24 months. The aggravated identity theft count required a mandatory two-year consecutive sentence, resulting in a cumulativ e advisory range of 42 to 48 months in prison, which Moore concedes was correc tly determined. The government filed a substantial assistance motion under 18 U.S .C. § 3553(e), relating to the mandatory two-year sentence, and U.S.S.G. § 5K1.1, relating to the conspiracy count. The government recommended a downward departur e to a sentence of 14 months for the conspiracy count plus 20 months for the a ggravated identity thef t count. The district court 1 granted the substantial assistance mo tion and sentenced Moore to 12 months on the conspiracy count and 18 months on the aggravated identity theft count, for a total of 30 months in prison. Moore appeals the sentence. We affirm.
On appeal, Moore argues that a furthe r downward departure was warranted (i) to avoid unwarranted sentencing disparity with five of his ten conspirators who received sentences of no prison term or time served, and (ii) to adequately consider his post-offense conduct and rehabilitation. These cont entions overlook the limited nature of our appellate review of sentences under Gall v. United States , 128 S. Ct. 586, 597 (2007). First, the district court could only consider the value of Moore’s substantial assistance in reducing his mandatory two-year sentence for aggravated identity theft based on the governme nt’s § 3553(e) motion. SeeUnited States v. Burns , No. 04-2901, 2009 WL 2525585, at *6 (8th Ci r. Aug. 20, 2009) (en banc). As Moore does not challenge the district court’ s evaluation of his substantial assistance on appeal, the court’s 18-month consecutive se ntence for the aggrav ated identity theft count must be affirmed.
Second, the district court’s downward de parture on the conspiracy count, based on the government’s § 5K1.1 substantial a ssistance motion, likewise “can be based2 The limited comparative record suggest s that Moore’s extensive criminal history was far worse than conspirators w ho did not receive pris on terms, and that he played a more significant role in the cons piracy. The same district judge sentenced all the conspirators and was in the be st position to weigh relative disparities.
-3- only on assistance-related considerations.” United States v. Plaza , 471 F.3d 928, 930 (8th Cir. 2006) (quotation omitted). Havi ng granted an assistance-based departure, the court had authority to grant an add itional downward departure under Part 5K2 of the advisory guidelines. But Moore did notfile a motion for such a departure nor request a departure orally at the sentenci ng hearing. Thus, even if an incorrect application of the Guidelines’ departure provisions can be a procedural error under Gall , 128 S. Ct. at 597, the district court co mmitted no such error here. It properly applied § 5K1.1, the only departure provision at issue.
The district court also had authority under Gall to vary downward from the advisory guidelines range for the conspi racy count, as adjusted by the § 5K1.1 departure. We review the resulting senten ce, with or without such a variance, for substantive reasonableness. But here, Moore does not argue that his 12-month sentence on this count was substantivel y unreasonable, so the sentence must be affirmed. Moreover, we note (i) that Moor e made no showing that he was similarly situated for sentencing purposes to the five other conspirators, see United States v. Watson , 480 F.3d 1175, 1178 (8th Cir. ) (sentence disparity resulting from legitimate distinctions is not unreasonable), cert. denied , 128 S. Ct. 305 (2007), 2 and (ii) where a district court has sentenced a defendant below the advisory guidelines range, “it is nearly inconceivable that the court abusedits discretion in not varying downward still further,” United States v. Lazarski , 560 F.3d 731, 733 (8th Cir. 2009).
The judgment of the district court is affirmed.

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