                     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Keith Brooks,                           * [UNPUBLISHED]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 sentence imposed by the district court1 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).2 For reversal, Brooks contends the district court failed to properly consider

      1
        The Honorable Joseph F. Bataillon, Chief 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
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 reasonableness of a criminal sentence under an abuse
of discretion standard. United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.
2009). Where, as here, the sentence falls within the applicable advisory Guidelines
range, we accord it a rebuttable presumption 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 record, that the district
court considered the parties' arguments and the relevant § 3553(a) factors and
adequately explained Brooks' sentence. Moreover, we find nothing to indicate the
district court abused its discretion in concluding those factors, on balance, justified a
72-month sentence. See Ruvalcava-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 sentence neither evidences the district court's
failure to consider the need to avoid unwarranted sentencing disparities in Brooks'
case nor renders Brooks' own sentence unreasonable. Because his co-defendant
pleaded guilty and received credit for acceptance of responsibility, he and Brooks
were not similarly situated for sentencing purposes.3 See United States v. Gallegos,
480 F.3d 856, 859 (8th Cir. 2007) (per curiam) (indicating that disparate sentences are



supervised release, we note that the judgment correctly provides for a three-year term
of supervised release, the maximum period authorized by statute for Brooks' Class C
felony offense. See 21 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-
not unwarranted where the defendants at issue 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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