1

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court

for the District of Nebraska.

2

The district court also imposed a term of supervised release and a $100 special

assessment. Although the district court incorrectly stated at Brooks' sentencing

hearing that his period of imprisonment would be followed by four years of

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-3719

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

Keith Brooks, * [UNPUBLISHED]

* 

Appellant. *

__________

Submitted: June 8, 2009

Filed: June 12, 2009 

___________

Before COLLOTON, JOHN R. GIBSON and BEAM, Circuit Judges.

___________

PER CURIAM.

Keith Brooks appeals the 72-month sentence imposed by the district court1

 after

a jury convicted Brooks on one count of possessing five grams or more of a mixture

or substance containing a detectable amount of crack cocaine in violation of 21 U.S.C.

§ 844(a).2

 For reversal, Brooks contends the district court failed to properly consider
supervised release, we note that the judgment correctly provides for a three-year term

of supervised release, the maximum period authorized by statute for Brooks' Class C

felony offense. See 21 U.S.C. § 844(a); 18 U.S.C. §§ 3559(a)(3) & 3583(b)(2).

3

We grant the government's motion to supplement the record on appeal with

Brooks' co-defendant's Presentence Investigation Report.

-2-

the sentencing factors set forth in 18 U.S.C. § 3553(a) in determining his sentence.

We affirm.

After first ensuring that the district court committed no significant procedural

errors, we review the substantive reasonableness of a criminal sentence under an abuse

of discretion standard. United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.

2009). Where, as here, the sentence falls within the applicable advisory Guidelines

range, we accord it a rebuttable presumption of reasonableness on appeal. United

States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.), cert. denied, 2009 WL 1116358

(U.S. May 26, 2009) (No. 08-9997). Applying those standards in the instant case, we

find no reversible error. We are satisfied, after reviewing the record, that the district

court considered the parties' arguments and the relevant § 3553(a) factors and

adequately explained Brooks' sentence. Moreover, we find nothing to indicate the

district court abused its discretion in concluding those factors, on balance, justified a

72-month sentence. See Ruvalcava-Perez, 561 F.3d at 886 (setting forth the ways in

which a sentencing court may abuse its discretion).

Brooks' arguments do not convince us otherwise. For example, the fact that

Brooks' co-defendant received a lesser sentence neither evidences the district court's

failure to consider the need to avoid unwarranted sentencing disparities in Brooks'

case nor renders Brooks' own sentence unreasonable. Because his co-defendant

pleaded guilty and received credit for acceptance of responsibility, he and Brooks

were not similarly situated for sentencing purposes.3

 See United States v. Gallegos,

480 F.3d 856, 859 (8th Cir. 2007) (per curiam) (indicating that disparate sentences are
-3-

not unwarranted where the defendants at issue were not similarly situated). Having

considered Brooks' other arguments and found them to be similarly without merit, we

conclude Brooks' 72-month sentence is reasonable.

Accordingly, and for the foregoing reasons, the decision of the district court is

affirmed. 

_____________________________