United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2631

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Phana Parsypo, also known as *

Phana Thonethevaboth, * [UNPUBLISHED]

*

Appellant. *

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Submitted: March 12, 2012

Filed: June 8, 2012

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Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Appellant Phana Parsypo pled guilty to being a felon in possession of a firearm

and ammunition, and the district court1

 sentenced him to 70 months imprisonment. 

Parsypo appeals, arguing the district court erred by denying his request for a

downward departure and a downward variance. We affirm.

1

 The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.
Police arrested Parsypo on September 13, 2010, after Andrew Burciaga

provided investigators with information that Parsypo was responsible for firing a

handgun toward the residence of Shane Reinier and a vehicle parked in front of 

Reinier’s house. When interviewed, Parsypo admitted firing the shots. A search

warrant executed at Parsypo’s residence revealed .22 caliber ammunition. Police also

executed a search warrant at Burciaga’s residence and found a Colt .22 caliber pistol.

Parsypo was charged along with Burciaga, who had driven Parsypo to the

Reinier residence, in a one-count indictment for being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Both

Parsypo and Burciaga pled guilty. The district court sentenced Burciaga to 57 months

imprisonment. The court sentenced Parsypo to 70 months imprisonment, which was

at the bottom of his advisory Sentencing Guidelines range of 70 to 87 months.

Parsypo raises two arguments on appeal. He first argues the district court erred

in declining to depart downward from the Guidelines range. Our court is without

authority to review this claim, however, because Parsypo does not contend the district

court was unaware of its authority to depart or that it failed to depart based on an

unconstitutional motive. See United States v. Brown, 627 F.3d 1068, 1074 (8th Cir.

2010), cert. denied, 132 S. Ct. 274 (2011); United States v. Anderson, 570 F.3d 1025,

1034 (8th Cir. 2009).

Parsypo next contends that his sentence is substantively unreasonable because

the district court failed to grant Parsypo a downward variance based on his childhood

abuse, his history of addiction, and the need to avoid unwarranted sentencing disparity

with his co-defendant Burciaga. “We do have authority to review the court’s refusal

to grant a downward variance for abuse of discretion.” Brown, 627 F.3d at 1074. 

Parsypo’s sentence was within the Guidelines sentencing range and is presumptively

reasonable. See United States v. Borromeo, 657 F.3d 754, 756 (8th Cir. 2011). 

However, a sentence may yet be unreasonable if the district court “fails to consider

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a relevant factor that should have received significant weight, gives significant weight

to an improper or irrelevant factor, or considers only the appropriate factors but

commits a clear error of judgment in weighing those factors.” United States v.

Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). 

After reviewing the sentencing transcript, we do not agree with Parsypo that the

district court abused its discretion in declining to vary downward. The district court

indicated that it had listened to Parsypo’s allocution in which Parsypo told the court

about his addiction to drugs and alcohol and the physical abuse he suffered at the

hands of his father. The court then engaged in a colloquy of Parsypo focusing on

Parsypo’s need for continued substance abuse treatment. Prior to pronouncing

Parsypo’s sentence, the court stated it had considered each of the sentencing factors

under 18 U.S.C. § 3553(a), explicitly noting the seriousness of Parsypo’s offense of

firing toward a residence, Parsypo’s extensive criminal history, and the need for

adequate deterrence and to protect the public. The court also noted that it would

“weigh heavily the need to avoid unwarranted sentencing disparity among defendants

with similar records who have been found guilty of similar conduct.” However, we

note that Parsypo and Burciaga differed in that Parsypo’s criminal history category

rating was two points higher because he was on probation at the time of the offense

and Parsypo actually fired the shots at the Reinier residence. Accordingly, the district

court adequately considered the section 3553(a) factors and did not abuse its

discretion in declining to apply a variance.

We affirm.

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