* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-3341
v. (D. Kansas) ROBERT ROBISON,

Defendant - Appellant. (D.C. No. 96-CR-10015-2)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Robert Robison appeals his sentence of 60 months’ i mprisonment, imposed under the Sentencing Guidelines following his plea of guilty to one count of interstate travel in aid of racketeering in violati on of 18 U.S.C. § 1952(a)(3). The-2-

sole ground for Mr. Robison’s appeal is that his co -defendant, Lester Ray Keene, received a lesser sentence, 36 months, for his pleaof guilty to one count of conspiracy to distribute methamphetamine. Mr. Robi son contends that this sentencing disparity “is not explicable from facts on the record, from the difference in criminal history, or from the recomme ndations of the prosecutor.” Appellant’s Br. at 5. Thus, he argues, the dispari ty violates the principle that “similar offenders engaged in similar conduct shoul d be sentenced equivalently.” United States v. Massey , 48 F.3d 1560, 1570 (10th Cir. 1995). These defendants engaged in methamphetamine traffic king, but with differing degrees of culpability. The record estab lishes that Mr. Robison was the one who initiated the transportation of the methamp hetamine from California to Kansas, where he established a distribution point w ith Keene. The following colloquy illuminates the court’s focus on the point : THE COURT: All right. What was your intention once you gave

that methamphetamine to Lester Keene? DEFENDANT: I don’t understand your question. THE COURT: Did you bring that methamphetamine from C alifornia to

Kansas with the intent to promote, manage, establis h and carry on and facilitate the promotion, management, establishment and carrying on of distribution of methamphetamine? DEFENDANT: Yes, sir. * * * *-3-

THE COURT: Did you sell it to Lester Keene? DEFENDANT: Yes, sir. Appellee’s Supp. App. at 41-43. Furthermore, it is undisputed that the government f iled a section 5K1.1 motion with respect to Mr. Keene, based on his coop eration, but did not do so as to Mr. Robison. We have repeatedly held that sentencing disparities are allowed where the disparity is explicable by facts on the record. Se e , e.g. , United States v. Blackwell , 127 F.3d 947, 952 (10th Cir. 1997); United States v. Goddard , 929 F.2d 546, 550 (10th Cir. 1991). Our review of the record under the standards set out in Koon v. United States , 116 S. Ct. 2035, 2046-48 (1996); see United States v. Gallegos , 129 F.3d 1140, 1142-43 (10th Cir. 1997), satisfies us that the district court identified and relied upon disparities between these two defendant s, and that the district court did not err in sentencing Mr. Robison. AFFIRMED. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge