                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3164
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Brian Fay Jeremiah,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 14, 2006
                                Filed: May 3, 2006
                                 ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.

       Brian Fay Jeremiah pleaded guilty to a violation of 18 U.S.C. § 2425 (2000) for
using interstate facilities to transmit information about a minor "with the intent to
entice, encourage, offer, or solicit" criminal sexual activity, and the District Court
sentenced Jeremiah to twenty-seven months' imprisonment. Jeremiah appealed his
sentence, raising a challenge based on Blakely v. Washington, 542 U.S. 296 (2004).
On appeal, a panel of this Court vacated Jeremiah's sentence and remanded his case
to the District Court for resentencing. United States v. Jeremiah, 135 Fed. App'x 3
(8th Cir. 2005) (per curiam) (unpublished). At his resentencing hearing, Jeremiah
requested a variance from the advisory Guidelines range based on the potential
disparity between the sentence he might have received had he been convicted in
Arkansas state court and the sentence he faced as a result of his conviction on the
federal charge. The District Court1 refused to vary from the advisory Guidelines range
on this basis, sentencing Jeremiah to the same twenty-seven-month term of
imprisonment originally imposed. Jeremiah appeals, arguing that the District Court
was required to consider the potential federal/state sentencing disparity under 18
U.S.C. § 3553(a)(6) (2000)2 and that the court's failure to do so resulted in an
unreasonable sentence. We affirm.

       Although application of the Sentencing Guidelines is no longer mandatory,
district courts are still required to consult the Guidelines and take them into account
in calculating a defendant's sentence. United States v. Booker, 543 U.S. 220, 264
(2005). A district court must calculate a defendant's advisory Guidelines sentencing
range based on his total offense level, criminal history category, and any appropriate
departures. See United States v. Shannon, 414 F.3d 921, 923 (8th Cir. 2005). The
court may also vary from the advisory Guidelines range based on the factors set forth
in 18 U.S.C. § 3553(a) as long as the resulting sentence is reasonable. See Booker,
543 U.S. at 261; United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).
Proper application of the Guidelines "remains the critical starting point" for fashioning
a reasonable sentence under § 3553(a), United States v. Lindquist, 421 F.3d 751, 753
(8th Cir. 2005), and a sentence within the properly calculated Guidelines range is
presumed to be reasonable, see United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.),
cert. denied, 126 S. Ct. 840 (2005). In determining whether a district court properly
calculated a defendant's Guidelines sentencing range, we review the court's findings
of fact for clear error and its interpretation and application of the Guidelines de novo.


      1
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
      2
       18 U.S.C. § 3553(a)(6) (2000) instructs district courts to consider "the need to
avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct."

                                          -2-
See Mashek, 406 F.3d at 1017. We review the ultimate sentence for reasonableness
in light of the factors described in § 3553(a). See United States v. May, 413 F.3d 841,
844 (8th Cir.), cert. denied, 126 S. Ct. 672 (2005).

        The District Court properly calculated Jeremiah's Guidelines sentencing range,
and Jeremiah does not argue otherwise. Rather, Jeremiah's sole argument on appeal
is that in order to impose a reasonable sentence, the District Court was required by §
3553(a)(6) to consider the sentences imposed in Arkansas state courts for comparable
conduct by defendants similarly situated to Jeremiah and to impose a sentence
designed to diminish the disparity between the two. This argument is unavailing.

       In United States v. Deitz, 991 F.2d 443, 448 (8th Cir. 1993), we held that "the
possible discrepancy between state and federal sentences is a factor the [Sentencing]
Commission considered but chose not to account for in the Guidelines." We reasoned
that the "Commission's goal of imposing uniformity upon federal sentences for
similarly situated defendants would be impeded, not furthered," if potential
federal/state sentencing discrepancies were considered. Id. at 447; see also United
States v. Snyder, 136 F.3d 65, 69 (1st Cir. 1998) (declining to consider federal/state
sentencing disparity as a valid basis for downward departure under the Guidelines);
United States v. Searcy, 132 F.3d 1421, 1422 (11th Cir. 1998) (per curiam) (stating
that consideration of state penalties would "undermine the goal of uniformity" in
federal sentences); United States v. Haynes, 985 F.2d 65, 69–70 (2d Cir. 1993) (noting
that departure from Guidelines sentence based on federal/state sentencing disparity
would "surely undermine Congress' stated goal of uniformity in sentencing"); United
States v. Sitton, 968 F.2d 947, 962 (9th Cir. 1992) (holding that departure from
Guidelines sentence based on federal/state sentencing disparity is impermissible), cert.
denied, 506 U.S. 979 (1992), and 507 U.S. 929 (1993). Although our decision in
Deitz predates the Supreme Court's pronouncement in Booker that the Guidelines are
merely advisory, we see nothing in Booker that casts doubt on our decision in Deitz.
Unwarranted sentencing disparities among federal defendants remains the only

                                          -3-
consideration under § 3553(a)(6)—both before and after Booker.3 See United States
v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (noting post-Booker that the "sole
concern" of § 3553(a)(6) is disparities among sentences for federal defendants).

      The District Court was neither required nor permitted under § 3553(a)(6) to
consider a potential federal/state sentencing disparity in imposing Jeremiah's sentence.
Accordingly, we conclude that the District Court properly calculated Jeremiah's
advisory Guidelines sentencing range, properly considered the § 3553(a) factors, and
imposed a reasonable sentence. We affirm.
                        ______________________________




      3
        In United States v. Winters, 416 F.3d 856, 861 (8th Cir. 2005), we affirmed a
sentence exceeding the advisory Guidelines range as reasonable "based on all the
factors listed" in § 3553(a) and rejected the defendant's argument that he was entitled
to a sentence within the Guidelines range. The dissent in Winters noted that the
District Court apparently erred by considering state-law sentences for the same
conduct in imposing the defendant's sentence, 416 F.3d at 863 (Heaney, J.,
dissenting), but this argument was not raised by the defendant and thus was not
addressed by the Court.

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