1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-1382

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Brandon Patrick Calmese, also known *

as Renegade, * [UNPUBLISHED]

*

Defendant-Appellant. *

___________

Submitted: October 18, 2010

Filed: October 21, 2010

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Before MUPRHY, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.

Brandon Patrick Calmese pled guilty to distributing crack cocaine. The district

court1

 sentenced Calmese to 130 months, the low end of his guideline range. He

appeals his sentence, and we affirm.

Calmese argues that the district court abused its discretion by adhering to the

70:1 crack to powder cocaine ratio laid out in the United States Sentencing Guidelines
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rather than using a 1:1 ratio. He asserts that, in doing so, the district court imposed

a greater than necessary sentence and created an unwarranted sentencing disparity

within the district. See 18 U.S.C. § 3553(a)(6) (2006). We first review the district

court's sentence for significant procedural error, employing "'a deferential abuse-ofdiscretion standard.'" United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007). 

Calmese's sentence was procedurally sound. The court knew it had "wide

discretion to vary," but reflected that while it must "balance the discrepancy between

the crack and the cocaine, [it] also ha[d] to look at the other factors that are involved."

Sentencing Transcript at 32. Ultimately the district court found that Calmese's

extensive criminal history warranted the sentence imposed. The district court was not

required to adopt what Calmese cites as negative public sentiment against the crack

guideline, see 18 U.S.C. § 3553(a), and it did not abuse its considerable discretion by

declining to equate crack and powder at sentencing. United States v. Saddler, 538

F.3d 879, 891 (8th Cir. 2008). 

Calmese also argues for the first time on appeal that the court's use of the 70:1

guideline ratio causes an unwarranted disparity because the district's other active

judge routinely employs a 1:1 ratio. We review this issue for plain error. United

States v. Woods, 603 F.3d 1037, 1039 (8th Cir. 2010). Calmese cannot meet that

standard. The district court imposed a sentence within the guideline range after

considering all of the statutory factors. In a Rule 28(j) filing, Calmese cites a

Department of Justice letter expressing concern about variation in sentencing

subsequent to Booker v. United States, 543 U.S. 220 (2005). Letter from Jonathan J.

Wroblewski to the Honorable William K. Sessions III, Chair, United States

Sentencing Commission (June 28, 2010). This was not available to the district court,

and the department's concern over a sentencing regime that has "largely lost its

mooring to the sentencing guidelines," id. at 2, would hardly have supported

Calmese's request for a variance. 
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Accordingly, the judgment of the district court is affirmed.

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