## United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 08-2539

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Scott Moore, *
* Appellant. *

___________ Submitted: February 13, 2009 Filed: May 8, 2009

___________ Before RILEY, SMITH, and SHEPHERD, Circuit Judges.

___________ SHEPHERD, Circuit Judge. Scott Moore pleaded guilty to conspiracy to distribute and possess with intent to distribute more than 50 grams of methamphetamine, see21 U.S.C. §§ 841(a)(1), 846. At sentencing, the district court de termined, without objection from the parties, that Moore’s offense level was 34 and his criminal history category was VI, yielding a United States Sentencing Guidelines range of 262-327 months. Moore requested a downward departure from the advisory Guidel ines range or, in the alternative, a downward variance under 18 U.S.C. § 3553( a) based upon Moore’s psychological1 The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.

-2- history and mental health. The district court 1 denied these requests and sentenced Moore to 262 months imprisonment. Moore appeals the sentence. We affirm.

Moore contends that the district court procedurally erred inrefusing to depart downward under the Sentencing Guidelines, infailing to sufficiently consider the 18 U.S.C. § 3553(a) factors, and in failing to adequately explain its sentencing decision. “We review all sentences, whether inside or outside the Guidelines range, under a deferential abuse of discretion standard.” United States v. Pepper , 518 F.3d 949, 951 (8th Cir.), cert. denied , 129 S. Ct. 138 (2008) (citing Gall v. United States , 128 S. Ct. 586, 597 (2007)). We first ensure that the district court did not commit a significant procedural error. Id. Such errors include “faili ng to calculate (or improperly calculating) the Guidelines range . . . faili ng to consider the § 3553(a) factors . . . or failing to adequately explain the chosen sentence . . . .” Gall , 128 S. Ct. at 597. “We review the district court’s factual findings for clear error, and its application of the guidelines de novo.” United States v. Blankenship , 552 F.3d 703, 704 (8th Cir. 2009).

Moore’s claims are without merit. “W e will generally not review a decision not to grant a downward departure unless the di strict court had an unconstitutional motive or erroneously thought it was without authority to grant the departure.” United States v. Johnson , 517 F.3d 1020, 1023 (8th Cir. 2008). M oore does not suggest the district court denied a downward departure based upon an improper motive or that it believed that it was without authority to grant the de parture. Indeed, the district court heard Moore’s arguments for downward departur e and recognized, on the record, that it possessed the authority to grant the same but declined to do so.-3- We apply a plain-error standard of revi ew to Moore’s claims that the district court failed to adequately consider th e 18 U.S.C. § 3553(a) factors and failed to sufficiently explain its sentencing decision because Moore did not raise these claims at sentencing. SeeUnited States v. Phelps , 536 F.3d 862, 865 (8th Cir. 2008), cert. denied , 129 S. Ct. 1390 (2009) (“If a defendant fails to timely object to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error.”). “Under plain error review, the defendant must s how: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Id. (citing Johnson v. United States , 520 U.S. 461, 466-67 (1997) and Fed. R. Crim. P. 52(b)). Where plain error occurs, “an appellate court may exercise its discretion to correct a forfeited error only if it ‘seriously affects the fairness, integrity, or public reput ation of judicial proceedings.’” Id. (quoting Johnson , 520 U.S. at 467).

From our review of the sentencing record in this case, we conclude that the district court reviewed and considered th e record, considered the arguments offered by Moore’s attorneys as well as the 18 U.S.C . § 3553(a) factors, and that the district court gave ample explanation for the chosensentence. The presentence report referred to Moore’s mental health and substance abus e history, and the district court reviewed the presentence report in its entirety. Moore’s attorney submitted mental health records to the district court, and the c ourt complimented Moore’s attorney for his work in submitting information in support of the requested downward departure or variance to the court. The court referre d to 18 U.S.C. § 3553(a), and, in announcing and explaining the sentence, the court sp ecifically referenced the nature and circumstances of Moore’s offense, including the “degree and depth” of Moore’s methamphetamine trafficking and the “sheer volume and quantity” of the methamphetamine involved. The court further referred to Moore’s criminal history, both adult and juvenile. The district court’s consideration of Moore’s substance abuse and mental health history is also indicated by the fact that, as partof his sentence, the court ordered that Moore be evaluated fo r possible participation in the Bureau of Prison’s Residential Drug Abuse Program and that he participate in drug abuse and-4- mental health treatment programs offere d through the United States Probation Office while on supervised release.

We conclude that the district court considered the 18 U.S.C. § 3553(a) factors and adequately explained the chosen sent ence. “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.” Rita v. United States , 127 S. Ct. 2456, 2468 (2007); see also United States v. Roberson , 517 F.3d 990, 994 (8th Cir. 2008) (“ The appropriate length of the statement will vary by case and may be relativ ely brief if the district court rests its decision on the Sentencing Commission’s reas oning and ‘decides simply to apply the Guidelines to a particular case.’” (quoting Rita , 127 S. Ct. at 2468)). In explaining the sentence the district court need only “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita , 127 S. Ct. at 2468.

We also find that Moore’s sentence is not unreasonable. We review a sentence for substantive reasonableness by applying an abuse-of-discretion standard. Gall , 128 S. Ct. at 594; United States v. Hill , 513 F.3d 894, 898 (8th Cir. 2008). We may find an abuse of discretion where the sentencing c ourt “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 fact ors.” United States v. Kowal , 527 F.3d 741, 749 (8th Cir.), cert. denied , 129 S. Ct. 612 (2008) (quotation omitted). This sentence, at the bottom of the Guidelines range , is presumed reasonable. Rita , 127 S. Ct. at 2462. Further, the district court stated its reasons for the chosen sentence and considered the 18 U.S.C. § 3553(a) factors. Accordingly, the district court did not abuse its discretion.

The district court’s judgment is affirmed.

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