## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 11-2631

___________ 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 Phana Parsypo, also known as * Phana Thonethevaboth, * [UNPUBLISHED] * Appellant. *

___________ Submitted: March 12, 2012 Filed: June 8, 2012

___________ Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

___________ PER CURIAM.
Appellant Phana Parsypo pled guilty to be ing a felon in possession of a firearm and ammunition, and the district court 1 sentenced him to 70 months imprisonment. Parsypo appeals, arguing the district court erred by denying his request for a downward departure and a downw ard variance. We affirm.

1 The Honorable John A. Jarvey, United St ates District Judge for the Southern District of Iowa.Police arrested Parsypo on Septembe r 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, Pars ypo admitted firing the shots. A search warrant executed at Parsypo’s residence rev ealed .22 caliber ammunition. Police also executed a search warrant at Burciaga’s re sidence and found a Colt .22 caliber pistol.
Parsypo was charged along with Burcia ga, who had driven Parsypo to the Reinier residence, in a one-count indictme nt 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 distri ct court sentenced Burciaga to 57 months imprisonment. The court sentenced Pars ypo 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. Hefirst 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. SeeUnited States v. Brown , 627 F.3d 1068, 1074 (8th Cir. 2010), cert. denied , 132 S. Ct. 274 (2011); Unite d States v. Anderson , 570 F.3d 1025, 1034 (8th Cir. 2009).
Parsypo next contends that his senten ce is substantively unreasonable because the district court failed to grant Pars ypo a downward variance based on his childhood abuse, his history of addiction, and the n eed to avoid unwarranted sentencing disparity with his co-defendant Burcia ga. “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. SeeUnited 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

-2-a relevant factor that should have receive d 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 we ighing 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 declin ing 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 th e sentencing factors under 18 U.S.C. § 3553(a), explicitly noting the seriousness of Parsypo’s offense of firing toward a residence, Parsypo’s extens ive criminal history, and the need for adequate deterrence and to protect the pub lic. 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 Burcia ga differed in that Parsypo’s criminal history category rating was two points higher be cause he was on probation at the time of the offense and Parsypo actually fired the shots at the Reini er residence. Accordingly, the district court adequately considered the sec tion 3553(a) factors and did not abuse its discretion in declining to apply a variance.

We affirm.



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