1 The Honorable Richard W. Goldberg, Judge of the United States Court of International Trade, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 06-3020

________________ United States of America, Appellee,

v. Ricardo Watkins, also known as Mac, Appellant. * * * * * * * * * * Appeal from the United States District Court for the Northern District of Iowa. [UNPUBLISHED]

________________ Submitted: February 13, 2008 Filed: May 1, 2008

________________ Before COLLOTON, GRUENDER, Circuit Judges, and GOLDBERG, Judge. 1

________________ PER CURIAM. This case is before us on remand from the United States Supreme Court for reconsideration in light of Kimbrough v. United States , 552 U.S. ---, 128 S. Ct. 558 (2007). After reconsidering Ricardo Watkin s’s sentence as directed by the Supreme2 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa. -2- Court, we find that the district court 2 did not commit the procedural error identified in Kimbrough and did not abuse its substantial discretion in imposing a life sentence. See Gall v. United States , 552 U.S. ---, 128 S. Ct. 586, 597 (2007). We again affirm. A jury found Watkins guilty of conspiracy to distribute or possess with intent to distribute fifty grams or more of co caine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and of distributing less than fi ve grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b )(1)(C). In his sentencing memorandum, Watkins requested a downward variance fro m the advisory guidelines range because he was not arrested until 2005 for his allege d actions during the mid to late 1990s; he was influenced by gang activity when he grew up in Chicago; he was close to his two children, his mother, and he r husband; he had a construc tion business in Chicago; he maintained a B average in college; and he was not currently enga ged in drug-related activity. Watkins also argued that a sent ence within the advisory guidelines range would create unwarranted sentencing disparities with the other defendants involved in the conspiracy. In a supplemental sentencing memorandum, Watkins argued that the district court should vary downward from the advisory guidelines range because of the sentencing disparity created by the 100:1 ratio between crack and powder cocaine in the United States Sentencing Guidelines. At the sentencing hearing, the districtcourt heard arguments from Watkins and the Government. The district court then thoroughly discussed the factors in 18 U.S.C. § 3553(a) as applied to Watkins, includi ng the nature and circumstances of his offense; his history and characteristics; the need to impose a sentence that reflects the seriousness of the offense, a ffords adequate deterrence to criminal conduct, protects the public from further crimes, and provide s Watkins with needed educational or vocational training, medical care, or corr ectional treatment in the most effective3 We now reinstate the vacated opinion, with the exception of footnote eight. -3- manner; the kinds of sentences available; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and a finding that restitution wa s not an issue in Watkins’s case. The district court then stated: On the issue of variance, the Court is aware that it does have the power to vary from an advisory guideline sentence. Certainly, the sentencing guidelines are not mandatory. . . . I have carefully considered the arguments made by the defendant in this case, and I decline to vary after studying them. To vary would, in my opinion, run afoul of the statutory factors at 18 United States Code Section 3553(a).
Sent. Tr. at 54. The district court de nied Watkins’s motion for a new trial and sentenced him to life in prison, a senten ce within the advisory sentencing guidelines range. Watkins appealed the district court’ s denial of his motion for a new trial and his sentence. This court affirmed both decisions. See United States v. Watkins , 486 F.3d 458 (8th Cir. 2007), vacated , 552 U.S. ---, 128 S. Ct. 906 (2008). Affirming the sentence, this court rejected Watkins’ s argument that the 100:1 ratio was per se unreasonable. See id. at 470 n.8. 3 We again reject Watkins’s argument that a sentence within an advisory guidelines range based on the 100:1 ratio is per se unreasonable. In Kimbrough , the Supreme Court held that a district court “may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses,” Kimbrough , 128 S. Ct. at 564, and further elaborated that “[i]t would not be an abuse of discretion for a district court to conclude when sent encing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 575. However, “[t]he Supreme Court did not hold . . . that the crack cocai ne guidelines are categorically unreasonable4 As in Moore , Watkins was sentenced prior to our Spears decision, which held that a district court could not vary downwar d based solely on its categorical rejection of the 100:1 ratio, see United States v. Spears , 469 F.3d 1166 (8th Cir. 2006) (en banc), vacated , 552 U.S. ---, 128 S. Ct. 858 (2008). -4- . . . .” United States v. Moore , 518 F.3d 577, 579 (8th Cir. 2008). Thus, we again reject Watkins’s argument that a se ntence based on a 100:1 ratio is per se unreasonable.
Watkins does not claim that the districtcourt did not believe that it had the authority to vary based on the disparity cr eated by the 100:1 ratio. Even had he made such an argument, we would reject it. Inreviewing the sentencing transcript, we find no support for the proposition that the districtcourt did not believe it had the authority to vary based on the crack/powder disparity. As in Moore , the district court “did not state it had no discretion under [ United States v. Booker , 543 U.S. 220 (2005)] to take the crack/powder guidelines disparity into account in deciding whether a variance was warranted by the discretionary § 3553(a) factors.” Moore , 518 F.3d at 580. Rather, the record suggests that the district court re jected all of Watkins’s reasons to vary and instead chose to impose a guidelines senten ce because the § 3553(a) factors it had just thoroughly discussed simply did not warrant a variance in the particular circumstances of this case. As there was no circuit authority to the contrary 4 and because the district court did not suggest that it lacked authority to vary based on the crack/powder disparity, we presume that the districtcourt knew that such a variance was permissible. Id. (“[W]e presume the district court was aware that Booker granted it discretion to vary downwar d based upon the impact of the crack cocaine guidelines on this defendant, but elected not to exercise that discretion.”). Therefore, the district court did not commit the procedural error identified in Kimbrough

. Finally, for the reasons discussed in this opinion and our prior opinion, Watkins , 486 F.3d at 470-71, and based on the district court’s thorough analysis of the § 3553(a) factors, we again conclude that the district court did not abuse its substantial-5- discretion when it imposed a within-guidelin es life sentence on Watkins and that the sentence is reasonable. See Gall , 128 S. Ct. at 597. As we noted in our prior opinion, Watkins’s life sentence “was within the range of choice dictated by the facts of the case.” Watkins , 486 F.3d at 471. Accordingly, we affirm Watkins’s sentence.

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