                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2009
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *     Appeal from the United States
     v.                               *     District Court for the Western
                                      *     District of Missouri.
Edward Gallegos                       *
                                      *         [PUBLISHED]
           Defendant - Appellant.     *
                                 ___________

                             Submitted: March 12, 2007
                                 Filed: March 27, 2007
                                   ___________

Before MELLOY, SMITH, and BENTON Circuit Judges.
                            ___________

PER CURIAM.


       Edward Gallegos pleaded guilty to conspiracy to distribute 500 grams or more
of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and
846. The district court1 sentenced Gallegos to 168 months’ imprisonment, which was
at the bottom-end of the applicable advisory Guidelines range. Gallegos appeals his
sentence as unreasonable, arguing that the district court abused its discretion when it



      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
sentenced Gallegos to a longer term of imprisonment than one of his co-defendants.
We affirm.

I.    Background

          The investigation leading to Gallegos’s indictment in this case began when
Eric Fujan was stopped on a highway in Dallas County, Missouri. A search of Fujan’s
vehicle revealed, among other things, three small plastic bags holding 961 grams of
methamphetamine. Fujan was arrested and transported to the Dallas County Jail,
where he agreed to cooperate with officers. Fujan claimed ownership of the drugs
found in his vehicle and told officers that he had been distributing methamphetamine
in the Springfield, Missouri area for the last eight months. He said the
methamphetamine was usually transported to him once a month by two men from
Dallas, Texas. Fujan identified one of the men as David Sonesourinhasack and the
other simply as Edward. Edward was later identified as Edward Gallegos. On two
occasions, Fujan had traveled to Dallas to retrieve methamphetamine from the two
men. Fujan received one to one-and-a-half pounds of methamphetamine from
Sonesourinhasack and Gallegos during each transaction. Fujan agreed that he had
distributed approximately eleven-and-a-half pounds of methamphetamine in the
Springfield area in the past eight months.

       After Fujan was released from custody, he contacted DEA agents and reported
that Sonesourinhasack was in town at the apartment of Daryl Schoenfeldt, packaging
two pounds of methamphetamine. Fujan placed a recorded call to Schoenfeldt.
Schoenfeldt told Fujan that he, Sonesourinhasack, and another man were looking for
a buyer for one of the two pounds of methamphetamine. Based on this information,
officers went to Schoenfeldt’s apartment. Schoenfeldt consented to a search of the
premises. After being arrested, Schoenfeldt stated that Sonesourinhasack and the
other man had left the apartment in search of a buyer for the remaining pound of
methamphetamine. Sonesourinhasack returned to the apartment after receiving a call

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from Schoenfeldt, and was arrested carrying 433.7 grams of methamphetamine and
$4,400 in cash.

      While being interviewed, Sonesourinhasack admitted that he and Gallegos had
brought five pounds of methamphetamine from Dallas, Texas, to Springfield,
Missouri. He stated that Gallegos had recently received another seven pounds of
methamphetamine that had been distributed in the Springfield area. Sonesourinhasack
agreed to cooperate with the officers, and made a recorded telephone call to Gallegos.
During the call, Gallegos made statements confirming his part in the conspiracy.

       Sonesourinhasack then traveled with DEA agents to Dallas, Texas, to help in
the investigation of Gallegos and Carlos Gonzalez. Sonesourinhasack identified the
residences of Gallegos and Gonzalez. He also placed several recorded telephone calls
and made contact with Gallegos and Gonzales. These conversations further evidenced
the roles of Gallegos and Gonzales in the conspiracy. Several months later, Gallegos
was arrested during a prearranged four-pound methamphetamine transaction with a
confidential informant and a DEA agent.

       Gallegos, Sonesourinhasack, Fujan, Schoenfeldt, Gonzales, and five others
were charged with conspiracy to distribute methamphetamine. Gallegos and
Sonesourinhasack both pleaded guilty to conspiracy to distribute 500 grams or more
of methamphetamine in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A)(viii), and 846.
Due to Sonesourinhasack’s cooperation, the government filed motions under U.S.S.G.
§ 5K1.1 and § 3553(e) on his behalf, allowing the court to sentence him below the
statutory mandatory minimum of 120 months in prison. After receiving credit for
acceptance of responsibility, the district court found that Sonesourinhasack had an
adjusted offense level of thirty-three and a criminal history category of II, resulting
in an applicable advisory Guidelines range of 151-188 months’ imprisonment. The
court granted the government’s motion for a downward departure based on substantial
assistance, and sentenced Sonesourinhasack to seventy months’ imprisonment.

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       At Gallegos’s sentencing, the district court granted Gallegos a full three-level
reduction for acceptance of responsibility. A total offense level of thirty-three, when
combined with a criminal history category of III, resulted in an advisory Guidelines
range of 168-210 months’ imprisonment. Gallegos argued that a sentence of 168
months was unreasonable under 18 U.S.C. § 3553(a)(6) because Sonesourinhasack,
who was equally culpable, had received a sentence of seventy months’ imprisonment.
This, according to Gallegos, created unwarranted sentencing disparity. The district
court acknowledged that it was “mindful” of the sentences received by Gallegos’s co-
defendants. Gallegos admitted that he could not benefit from a motion for downward
departure pursuant to § 5K1.1, as could Sonesourinhasack. Finding no factors to
warrant a variance from the advisory Guidelines range, the court sentenced Gallegos
to 168 months in prison.

II.   Analysis

        Gallegos brings this same argument on appeal, contending that a sentencing
disparity of ninety-eight months for equally culpable co-defendants is unreasonable
even in light of Sonesourinhasack’s cooperation with the government. Other than the
cooperation, Gallegos argues, he and Sonesourinhasack are similarly situated.
Gallegos cites the facts that Sonesourinhasack told DEA agents that both he and
Gallegos delivered methamphetamine to Fujan in Springfield, Missouri, and argues
that roughly the same drug quantity could be attributed to both Gallegos and
Sonesourinhasack.

        We review the district court’s sentence for reasonableness, which is a standard
akin to abuse of discretion. United States v. Vasquez, 433 F.3d 666, 670 (8th Cir.
2006). “Sentences within the guidelines are ‘presumptively reasonable.’” Id. at 670-
71 (quoting United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005)). However,
a sentence within the advisory Guidelines range can be unreasonable if the court “(1)
fails to consider a relevant factor that should have received significant weight; (2)

                                         -4-
gives significant weight to an improper or irrelevant factor; or (3) considers only the
appropriate factors but in weighing those factors commits a clear error of judgment.”
Id. at 671 (citing United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).

       Gallegos argues that the district court abused its discretion by failing to
consider the relevant factor of unwarranted sentencing disparities. See 18 U.S.C. §
3553(a)(6). While the district court must consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), “Congress clearly thought it
appropriate that defendants who provide substantial assistance should receive lower
sentences than would otherwise be imposed.” United States v. Jimenez-Gutierrez, 425
F.3d 1123, 1127 (8th Cir. 2005) (Colloton, J., concurring). Disparity in sentences
between a defendant who provided substantial assistance and one who provided no
assistance, therefore, is not “unwarranted.” See Vasquez, 433 F.3d at 671 (finding
that any disparity between a defendant’s sentence and his co-defendant’s sentence was
warranted where, among other things, the defendant had a greater criminal history
than his co-defendant); United States v. Goody, 442 F.3d 1132, 1134 (8th Cir. 2006)
(holding that there was no “unwarranted disparity” where there were “a number of
relevant differences between” defendants, including the fact that one benefitted from
the government’s motion to reduce his sentence based on substantial assistance under
§ 5K1.1).

      Thus, even if we assume that Gallegos and Sonesourinhasack are equally
culpable in this conspiracy, they are not similarly situated and disparity between their
sentences is not unwarranted. First, Sonesourinhasack was in a lower criminal history
category, which resulted in a lower applicable advisory Guidelines range than
Gallegos despite being charged with the same criminal conduct. Second, and most
importantly, Sonesourinhasack received motions for a downward departure based on
substantial assistance. Immediately upon his arrest, Sonesourinhasack named
Gallegos as one of the co-conspirators and agreed to cooperate with law enforcement

                                          -5-
officers. Sonesourinhasack placed a number of recorded calls to Gallegos from
custody, which made it clear that Gallegos was involved. Sonesourinhasack then
traveled to Dallas, Texas, with DEA agents to help with surveillance of both Gallegos
and co-defendant Gonzales. Sonesourinhasack led the agents to the residences of
Gallegos and Gonzales, placed several recorded telephone calls, and made contact
with both men.

       After hearing the extent of Sonesourinhasack’s assistance in obtaining the
indictment in this case, the district court determined that a sentence of seventy
months’ imprisonment was proper. Gallegos, on the other hand, stated at sentencing
that he knew he could not receive a § 5K1.1 motion based on substantial assistance,
therefore admitting that he and Sonesourinhasack were not similarly situated.
Acknowledging that Gallegos could not benefit from a downward departure as
Sonesourinhasack did, and stating that it was “mindful” of the length of Gallegos’s
co-defendant’s sentences, the district court sentenced Gallegos to a term at the low-
end of his advisory Guidelines range. After reviewing the record, we hold that the
district court’s sentence of 168 months in prison is not an abuse of discretion.

      Further, even if Gallegos’s within-Guidelines sentence was not presumed to be
reasonable under our precedents, we would still find that the district court acted
reasonably in imposing a sentence of 168 months in prison.

      The judgment of the district court is affirmed.
                     ______________________________




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