United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3180

___________

United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Brian Elden Osborne, *

* [UNPUBLISHED] 

Appellant. *

___________

Submitted: April 11, 2011 

Filed: June 10, 2011

___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

___________

PER CURIAM.

Brian Osborne pled guilty to one count of conspiracy to manufacture and pass

counterfeit currency, a violation of 18 U.S.C. § 371. Under the United States

Sentencing Guidelines, Osborne’s total offense level was 16 and his criminal history

category was III, resulting in an advisory sentencing guidelines range of 27-33

months’ imprisonment. Citing the probability of recidivism, the goal of protecting

society, Osborne’s level of culpability in the conspiracy, and the gravity of the
offense, the district court1

 sentenced him to 60 months’ imprisonment, the statutory

maximum. On appeal, Osborne argues that the district court erred procedurally by

failing to consider a traditional departure under the guidelines before imposing an

upward variance based on consideration of the 18 U.S.C. § 3553(a) factors. Osborne

also argues that his resulting sentence is unreasonable. We affirm.

Because Osborne failed to object to the alleged procedural error at the time of

sentencing, we review for plain error. See, e.g., United States v. Mireles, 617 F.3d

1009, 1012 (8th Cir. 2010), cert denied, 562 U.S. ----, 131 S. Ct. 1512 (2011). Under

this standard, the appellant bears the burden of proving that “the district court

committed a legal error that was obvious and affected his substantial rights.” United

States v. Marston, 517 F.3d 996, 1002 (8th Cir. 2008). “An error affects a substantial

right if it is prejudicial.” Mireles, 617 F.3d at 1013 (quoting United States v. Bain,

586 F.3d 634, 640 (8th Cir. 2009), cert denied, 562 U.S. ----, 131 S. Ct. 74 (2010)). 

Additionally, the discretionary authority of this court to reverse the error will be

exercised only where “the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. White, 241 F.3d 1015, 1023 (8th

Cir. 2001) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

We have held that failure to consider explicitly a departure under the guidelines

is error. United States v. Maurstad, 454 F.3d 787, 790 (8th Cir. 2006). However,

Osborne cannot show prejudice, i.e., that he would have received a more favorable

sentence had the district court performed a traditional departure analysis before

considering the § 3553(a) factors. See Mireles, 617 F.3d at 1013. While Osborne

argues only that the facts relied upon by the district court at sentencing would not

have supported a traditional departure under U.S.S.G. § 4A1.3, the district court’s

discretion under § 3553(a) “is not limited solely to circumstances that the formerly

1

The Honorable Brian S. Miller, United States District Judge for the Eastern

District of Arkansas.

-2-
mandatory guidelines framework would have deemed permissible bases for

departure.” United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). In other

words, the district court could have performed the same § 3553(a) analysis even if it

expressly had found no grounds for a § 4A1.3 departure. Because Osborne has not

met his burden to show that he would have received a lower sentence but for the

district court’s procedural error, his argument fails.

Osborne also contends that his sentence is unreasonable. “We review the

reasonableness of a sentence for an abuse of discretion.” Maurstad, 454 F.3d at 789. 

“A discretionary sentencing ruling . . . may be unreasonable if a sentencing court fails

to consider a relevant factor that should have received significant weight, gives

significant weight to an improper or irrelevant factor, or considers only appropriate

factors but nevertheless commits a clear error of judgment by arriving at a sentence

that lies outside the limited range of choice dictated by the facts of the case.” United

States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). 

First, Osborne asserts that the district court gave improper weight to his prior

criminal history because the guidelines already accounted for that factor. However,

“a district court may impose an upward variance based on facts already included in

the advisory sentencing guidelines where the advisory guidelines do not fully account

for those facts.” United States v. Jones, 509 F.3d 911, 914 (8th Cir. 2007). Here, the

district court found that only prison stints had interrupted Osborne’s habitual criminal

activity and that imprisonment appeared to be the only effective method of protecting

society from him. The district court’s decision to give these facts additional weight

was not outside the permissible range of choice in this case. See Haack, 403 F.3d at

1004.

Next, Osborne asserts that the disparity in sentencing between himself and his

co-conspirators was unreasonable. See § 3553(a)(6). However, the district court

found that Osborne was not similarly situated to his co-conspirators due to Osborne’s

-3-
leadership of the conspiracy. Notably, a co-conspirator with no leadership role

already had received an above-the-guidelines sentence of 48 months. Under these

circumstances, Osborne’s statutory maximum 60-month sentence does not represent

a clear error in judgment. See United States v. Frausto, 636 F.3d 992, 997-98 (8th

Cir. 2011) (holding that a defendant who played a “unique role” in a conspiracy was

not similarly situated with his co-conspirators for sentencing purposes).

For the foregoing reasons, we affirm the sentence imposed by the district court.

_____________________________

-4-