United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3489

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United States of America,

Appellee,

v.

Keith A. Jones,

Appellant.

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Appeal from the United States

District Court for the 

Western District of Missouri.

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Submitted: April 12, 2007

 Filed: July 10, 2007

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Before MELLOY, BOWMAN and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

In May and June 2005, an undercover police officer made several purchases of

cocaine base, or “crack” cocaine, from Keith Jones in Kansas City, Missouri. Jones

was arrested for this activity and indicted by a federal grand jury. He pled guilty to

five counts of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B)-(C). 

At the sentencing hearing, Jones’s counsel argued for a downward variance

from the agreed advisory United States Sentencing Guidelines range of 130 to 162
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The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District

Court for the Western District of Missouri.

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In declining to grant a variance, the district court said, “[A] downward

departure does not appear to be appropriate here and will not be allowed.” It is

apparent from the context of the remark that the district court misspoke, saying

“departure” instead of “variance.” Jones did not request a departure under the

guidelines, and the district court’s denial came moments after the parties argued about

the propriety of a variance. See, e.g., United States v. Pool, 474 F.3d 1127, 1129 n.1

(8th Cir. 2007) (assuming from context that the district court “varied” when it stated

that it was going to “depart” from the guidelines). Jones argues here that this

statement by the district court is evidence that it “failed to appreciate” that the

sentencing guidelines are now advisory. We do not agree with Jones’s conclusion.

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months’ imprisonment based upon Jones’s addictions to alcohol and cocaine at the

time of his conduct, his limited role as a “quintessential street dealer,” and the

disparity with which the sentencing guidelines treat crack versus powder cocaine. The

Government recommended a sentence of 140 months, emphasizing the danger posed

by crack cocaine, Jones’s offense conduct and his criminal history. The district court1

sentenced Jones to 140 months’ imprisonment. In doing so, the court declined to

grant Jones’s requested variance and declined to sentence Jones at the bottom of the

advisory guidelines range because it did not “believe the low end of the guideline

range to be appropriate here.”2

 After announcing the sentence, recommendations

regarding drug treatment and the conditions of supervised release, the district court

noted, “[T]he sentence is rather severe, and for good reason. Congress is trying to

control the distribution of drugs in our community.”

Jones appeals, arguing first that the record as a whole demonstrates that the

district court failed to consider adequately the sentencing factors of § 3553(a) as

required by United States v. Booker, 543 U.S. 220, 259-60 (2005). Because there is

no dispute about the district court’s computation of the advisory guidelines sentencing

range, we review Jones’s sentence for reasonableness. United States v. MosquedaEstevez, 485 F.3d 1009, 1012 (8th Cir. 2007). “We review the reasonableness of a
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sentence for abuse of discretion.” United States v. Bonahoom, 484 F.3d 1003, 1005

(8th Cir. 2007). “A sentencing court abuses its discretion if it fails to consider a

relevant factor that should have received significant weight, gives significant weight

to an improper or irrelevant factor, or considers only the appropriate factors but

commits a clear error of judgment in weighing those factors.” Id. at 1006 (quoting

United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005)). 

Like the appellant in Mosqueda-Estevez, Jones argues that his sentence is

unreasonable “because the district court failed to make a record sufficient for this

court to review it under the enumerated factors of § 3553(a)” and “essentially asserts

only an assumed right to a sentencing hearing in which the district court ritualistically

explains each § 3553(a) factor, the facts that bear upon it, and its weight in

determining the ultimate sentence.” 485 F.3d at 1012. Mosqueda-Estevez forecloses

relief based upon this argument:

A defendant has a right to a sentence that is reasonable given the facts of

the case and the relevant sentencing factors; they do not have a right to

have their sentences handed down according to any particular script. To

prevail on appeals such as this one, a defendant must claim that his

sentence was unreasonable under the circumstances of his case. . . . [W]e

have not held that the brevity of the record alone gives rise to a claim of

per se unreasonableness.

Id. at 1012-13 (citations omitted). We find support for our position in Rita v. United

States, in which the Supreme Court analyzed a district court’s adherence to 18 U.S.C.

§ 3553(c), which requires that the court openly state its reasons for imposing its

particular sentence, and held that “[w]here a matter is [] conceptually simple . . . and

the record makes clear that the sentencing judge considered the evidence and

arguments, we do not believe the law requires the judge to write more extensively.”

No. 06-5754, slip op. at 20 (June 21, 2007). After hearing arguments for a downward

departure or, alternatively, a variance, the district court in Rita said that the guidelines

range was not “inappropriate,” and the Supreme Court affirmed the district court’s
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brief treatment as “legally sufficient.” Id. at 19. Here, the district court similarly

considered arguments for a reduced sentence and concluded that it would not “be

appropriate here.” Although we are mindful that Rita’s holding and analysis on this

point applies expressly to § 3553(c),we believe that its logic applies with equal force

with respect to Jones’s argument here. We therefore reject Jones’s argument that the

brevity of the district court’s record on the § 3553(a) sentencing factors requires us

to find that his sentence is unreasonable.

To the extent Jones suggests that his sentence is unreasonable because the

district court failed to consider the particular circumstances of his case, we disagree.

As we have repeatedly held, “It is not necessary for the district court to provide a

mechanical recitation of the § 3553(a) factors so long as it is clear from the record that

the court considered them.” United States v. Shan Wei Yu, 484 F.3d 979, 988 (8th Cir.

2007) (internal quotations omitted). At the outset of the hearing, the district court

noted that it had reviewed the presentence investigation report prepared by the

probation office. The report contains extensive information regarding Jones, his

history and characteristics, the nature and circumstances of the offense, the kinds of

sentences available, and a recommended advisory sentencing guidelines range, all of

which are factors under § 3553(a). Further, the record shows that the district court

heard and acknowledged arguments from both Jones and the Government which

addressed Jones’s history and characteristics, his role in the offense and the need to

avoid unwarranted sentencing disparities, all § 3553(a) factors. Although “we urge

each district court to make a clear record of its reasons for imposing a particular

sentence with explicit reference to § 3553(a),” Mosqueda-Estevez, 485 F.3d at 1013,

the record shows that the district court did consider the relevant § 3553(a) factors. See

Shan Wei Yu, 484 F.3d at 988. 

Jones’s second argument is that the district court failed to consider the so-called

“100:1 disparity” between crack cocaine and powder cocaine under the sentencing

guidelines and that this factor should have received significant weight. We are not
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convinced that the 100:1 ratio employed in the sentencing guidelines constitutes a §

3553(a) factor, much less one entitled to “significant weight.” See United States v.

Spears, 469 F.3d 1166, 1175 (en banc) (“We do not adopt or endorse the Third

Circuit’s opinion that the crack/powder cocaine differential in the Guidelines may be

a factor in the post-Booker sentencing process.”), petition for cert. filed (Mar. 2, 2007)

(No. 06-9864). Nevertheless, even if we were to presume that the 100:1 ratio is a

relevant sentencing factor, the district court considered Jones’s argument that the

crack cocaine penalties would punish him too severely and nevertheless decided to

sentence him to 140 months’ imprisonment–ten months above the bottom of the

guidelines range–clearly rejecting his argument for a sentence below the advisory

guidelines range. We see no abuse of discretion in the district court’s sentencing

Jones within the agreed advisory guidelines range.

For the foregoing reasons, we affirm the district court’s judgment and sentence.

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