1 The Honorable Joseph F. Bataillon, Chie f 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 * Keith Brooks, * [UNPUBLISHED] * Appellant.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 sent ence imposed by the district court 1 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). 2For reversal, Brooks contends the di strict court failed to properly considersupervised release, we note that the judgm ent correctly provides for a three-year term of supervised release, the maximum period authorized by statute for Brooks' Class C felony offense. See21 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 reasonabl eness of a criminal sentence under an abuse of discretion standard. Unite d States v. Ruvalcava-Perez , 561 F.3d 883, 886 (8th Cir. 2009). Where, as here, the sentence falls w ithin the applicable advisory Guidelines range, we accord it a rebuttable presumpti on 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 reco rd, that the district court considered the parties' arguments and the relevant § 3553(a) factors and adequately explained Brooks' sentence. Mo reover, we find nothing to indicate the district court abused its discretion in conc luding those factors, on balance, justified a 72-month sentence. SeeRuvalcava-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 senten ce neither evidences the district court's failure to consider the need to avoid unwarranted sentencing disparities in Brooks' case nor renders Brooks' own sentence unr easonable. Because his co-defendant pleaded guilty and received credit for acceptance of responsibility, he and Brooks were not similarly situated for sentencing purposes. 3 SeeUnited 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 issu e 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.

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