                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1389
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
James Anthony Anderson,                 * [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 12, 2005
                                Filed: December 16, 2005
                                 ___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      James Anthony Anderson appeals the sentence imposed by the district court1
as unreasonable under 18 U.S.C. § 3553(a). We affirm.


       Pursuant to a guilty plea, Anderson was convicted of escape from custody in
violation of 18 U.S.C. § 751(a). Based upon Anderson’s criminal history, the district
court determined Anderson’s sentencing range was thirty-seven to forty-six months.


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
       Anderson moved for a variance from the guideline range under 18 U.S.C.
§ 3553(a) and asked the district court to impose a sentence of twelve months. The
district court, upon consideration of the § 3553(a) factors, determined Anderson was
a recidivist who was likely “to continue to repeat crime.” The district court concluded
Anderson’s case did not justify variance from the sentencing range and denied
Anderson’s motion, sentencing him to thirty-seven months of imprisonment and two
years of supervised release, both to run consecutive to his prior sentence. A sentence
within the sentencing range established by the United States Sentencing Guidelines
is presumptively reasonable. See United States v. Lincoln, 413 F.3d 716, 717 (8th
Cir. 2005).


       In determining whether a sentence is reasonable, we consider how the sentence
measures against the factors set forth in 18 U.S.C. § 3553(a). United States v.
Marcussen, 403 F.3d 982, 985 (8th Cir. 2005). “To make the reasonableness
determination, we ask whether the district court abused its discretion.” United States
v. Pizano, 403 F.3d 991, 995 (8th Cir. 2005).


       Anderson first argues his sentence is unreasonable because it creates a disparity
between his sentence and that of his co-defendant. He argues his entitlement to a
twelve-month sentence to ensure parity with his co-defendant. He further argues the
reasonableness of a twelve-month sentence is supported by the government’s position
“[a] sentence of not less than twelve months consecutive would be a reasonable
sentence.” In its determination of the ultimate reasonableness of a sentence, the
district court need not give weight to the government’s position. Further, the district
court is not obligated to ensure parity among co-defendants with different criminal
histories. See 18 U.S.C. § 3553(a)(6). We conclude it was neither unreasonable, nor
an abuse of discretion, to impose a sentence higher than received by Anderson’s
co-defendant given the different criminal histories of the two men.



                                          -2-
       Second, Anderson argues his sentence fails to sufficiently account for his
history and characteristics, including his upbringing, and is therefore unreasonable.
The district court considered Anderson’s criminal history and background and
concluded Anderson’s case was not sufficiently unusual to justify variance from the
presumptively reasonable guideline range. Although Anderson’s upbringing is
disheartening and warrants consideration, 18 U.S.C. § 3553(a)(1), we cannot say the
district court imposed an unreasonable sentence considering the other § 3553(a)
factors, including Anderson’s recidivism and violent criminal history.


       Finally, Anderson argues his original sentence was excessive because the
Bureau of Prisons did not credit some of his time served. This claim was rejected by
the district court. Anderson argues a reasonable sentence for the instant offense
should account for the Bureau of Prisons’ error. This argument is without merit. The
subjective belief a prior sentence is invalid is no justification for committing the
offense of escape, nor is it a valid basis for adjusting the sentence of a subsequent
offense. Cf. United States v. J.L.K., Jr., 880 F.2d 993, 994 (8th Cir. 1989) (per
curiam) (holding defendant’s failure to utilize administrative and legal remedies to
challenge his sentence precluded his use of the defenses of necessity and duress to a
charge of escape from custody).


      We conclude the sentence imposed by the district court was reasonable and
therefore affirm the district court.
                       ______________________________




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