                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2726
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Donovan New,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 8, 2007
                                Filed: July 18, 2007
                                 ___________

Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG, Judge.1
                         ___________

COLLOTON, Circuit Judge.

      A jury convicted Donovan New of two counts of involuntary manslaughter for
causing a single-vehicle accident that resulted in the death of his father and cousin.
He raises several issues on appeal, and we affirm.




      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
                                           I.

       On June 17, 2005, New drove with his father and cousin on Highway 18 near
the Pine Ridge Indian Reservation in South Dakota. New and his cousin had been
drinking heavily that day. At around 4:00 p.m., the driver lost control of the vehicle,
which went into a ditch on the opposite side of the road, rolled twice, and landed in
a field. The vehicle had been traveling at about 89 miles per hour at the time of the
accident, on a road with a speed limit of 65 miles per hour. New and his cousin were
thrown from the vehicle, and New’s father was trapped in the back seat. Only New
survived. At the scene, New claimed that his cousin was the driver.

       New was flown to Rapid City Regional Hospital. Hospital staff performed a
blood test, which showed a .320 blood alcohol content and the presence of marijuana.
Later that day, he was given a variety of medications due to his spinal injuries,
difficulty breathing, and pain in his chest and shoulder.

      The following afternoon, Special Agent Charles Cresalia of the Federal Bureau
of Investigation arrived at the hospital to interview New. New admitted that he had
been driving at the time of the crash and had consumed alcohol earlier in the day.

       Several weeks after the accident, New went to the Bureau of Indian Affairs
(“BIA”) building at Pine Ridge to reclaim his belongings left at the scene of the
accident. While there, he spoke with BIA Special Agent Fred Bennett. New told
Bennett that he had been driving at the time of the accident, although he also said that
others were telling him that he was not the driver, and that he was having doubts about
his memory of that night. In late July, Bennett arrested New on charges of involuntary
manslaughter. In a post-arrest interview, New said he was not sure who was driving.

      At trial, the jury heard evidence from various lay witnesses, officers, doctors,
and experts in accident reconstruction. New also testified in his own defense that he

                                          -2-
could not remember who was driving at the time of the crash. The jury found him
guilty on both counts of involuntary manslaughter. At sentencing, the district court2
applied an adjustment for obstruction of justice under the advisory guidelines based
on a finding that New committed perjury during the trial. The court ultimately
sentenced New to consecutive terms of 72 months’ imprisonment on each count of
involuntary manslaughter.

                                          II.

                                          A.

       New claims that his statements made during the interview in the hospital room
should have been suppressed because Agent Cresalia took those statements in
violation of the rule of Miranda v. Arizona, 384 U.S. 436 (1966). Miranda requires
that law enforcement agents provide certain prescribed warnings before conducting
an interrogation of a suspect who is in custody. Id. at 444. New contends that he was
in custody during the hospital interview, because he was physically unable to leave,
and that Agent Cresalia was thus required to advise him of the Miranda warnings
before questioning him. We review the district court’s decision on this matter de
novo. United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002).

       The Supreme Court in Miranda stated that warnings are required when
interrogation is “initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.”
Miranda, 384 U.S. at 444. Since then, the Court has clarified that a suspect is entitled
to Miranda protection when he is “in custody,” and that “the ultimate inquiry is
simply whether there is a formal arrest or restraint on freedom of movement of the


      2
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.

                                          -3-
degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam) (internal quotation omitted). The custody inquiry thus turns on
whether, given the totality of the circumstances, a reasonable person would have felt
at liberty to terminate the interrogation and leave, Thompson v. Keohane, 516 U.S. 99,
112 (1995), or in this case, to terminate the interrogation and cause the agent to leave.

       At the time of the interview in question, New was in a private hospital room,
confined to his bed in a neck brace and under medication. When Agent Cresalia
entered, he identified himself to New, explained he was investigating the fatal
accident, and told New that he did not have to talk. Cresalia advised New that he
would not be arrested, that he could stop the interview at any time, and that he could
ask the agent to leave the room at any time. The district court found that Cresalia used
neither force nor deceptive tactics during the interview. New used his call button to
summon his nurse twice during the interview, but never sought to terminate the
meeting with Cresalia. The final eight minutes of the conversation were tape
recorded, and the district court found that New’s answers appeared to be very
coherent. The district court heard extensive evidence regarding New’s medications,
and found expressly that New was “not impaired” at the time of the interview, and that
even if he was under the influence of narcotic painkillers, “there is no evidence that
he was so intoxicated that he did not understand his rights.” New was not arrested at
the conclusion of the interview.

       New’s physical condition and immobility require careful analysis of whether
Miranda should apply, but we conclude, based on the totality of the circumstances,
that New was not in custody. In resolving this question, we focus on the restraint
imposed by the government agents, Axsom, 289 F.3d at 503, because “[t]he sole
concern of the Fifth Amendment, on which Miranda was based, is governmental
coercion.” Colorado v. Connelly, 479 U.S. 157, 170 (1986); see also United States
v. Erving L., 147 F.3d 1240, 1247 (10th Cir. 1998). “[T]he most obvious and effective
means of demonstrating that a suspect has not been taken into custody . . . is for the

                                          -4-
police to inform the suspect that an arrest is not being made and that the suspect may
terminate the interview at will.” United States v. Griffin, 922 F.2d 1343, 1349 (8th
Cir. 1990) (internal quotation omitted). Agent Cresalia made use of this “obvious and
effective means” by informing New at the outset that he could terminate the interview
at any time, and that he would not be arrested. Cresalia followed through with his
assurance by making no arrest at the end of the encounter. The agent himself placed
no constraints on New’s movement or on his ability to communicate with hospital
staff. There is no basis to question the district court’s finding that the agent used no
force or deceptive tactics, and we do not think the atmosphere in this hospital room,
where a nurse was summoned twice to attend to New during the interview, can be
fairly described as “police dominated.” See id. at 1351-52. Given that Cresalia
plainly communicated New’s freedom to decline the interview and took no other
actions to aggravate the environment, we conclude that New was not in custody, and
that Miranda warnings were not required.3

      We also conclude that the district court did not clearly err in finding that New’s
statements to Agent Cresalia were voluntary. A confession is voluntary if it is “the
product of an essentially free and unconstrained choice by its maker.” Schneckloth

      3
       New also contends for the first time on appeal that his statements should have
been suppressed because the agent’s entry into the hospital room without a warrant
was an unreasonable search under the Fourth Amendment. This claim was not raised
before trial in a motion to suppress, and it is therefore waived. See United States v.
Buchanan, 985 F.2d 1372, 1380 (8th Cir. 1993); Fed. R. Crim. P. 12(e). Even were
the point reviewable for plain error, see Fed. R. Crim. P. 52(b); United States v.
Frazier, 280 F.3d 835, 845 (8th Cir. 2002), we see no “obvious” error, if error at all,
given the division of authority on whether a patient has a reasonable expectation of
privacy in a hospital room. Compare, e.g., People v. Courts, 517 N.W.2d 785, 786
(Mich. Ct. App. 1994) (“No one who had ever spent any time in a hospital room could
continue to harbor any false expectations about his personal privacy or his ability to
keep the world outside from coming through the door”) with State v. Stott, 794 A.2d
120, 127-28 (N.J. 2002) (“[W]e accept as a basic premise that a hospital room is more
akin to one’s home than to one’s car or office.”).

                                          -5-
v. Bustamonte, 412 U.S. 218, 225 (1973). New argues that the influence of
medications, the “psychological implications” of his circumstances, and his physical
helplessness in a strange location combined to render his statements to Cresalia
involuntary. We are not persuaded.

      Our cases hold that “[a] confession may not be found involuntary absent some
type of coercive activity on the part of law enforcement officials.” United States v.
Kime, 99 F.3d 870, 880 (8th Cir. 1996). There was no coercive activity by Agent
Cresalia that overbore New’s will or impaired his capacity for self-determination. See
Schneckloth, 412 U.S. at 226. The district court’s finding that New suffered from no
mental impairment from medication is supported by expert testimony and not clearly
erroneous. Against that backdrop, Cresalia’s simple act of asking questions in a
twenty-five minute interview, while emphasizing that New was not under arrest and
was free to terminate the meeting, is not the sort of conduct that results in an
overborne will attributable to an agent of the government. See generally United States
v. LeBrun, 363 F.3d 715, 725-27 (8th Cir. 2004) (en banc).

                                          B.

       New also appeals the admission of two prior convictions for driving under the
influence of alcohol (“DUI”). Evidence of prior crimes is not admissible to prove a
defendant’s bad character or propensity to commit bad acts, but it may be admissible
for other purposes, including to prove requisite knowledge. See Fed. R. Evid. 404(b).
One element of the charged offense in this case was satisfied by proof that the
defendant knew, or could reasonably foresee, that his conduct was a threat to the lives
of others. (R. Doc. 70, Jury Instruction 2). The government offered the evidence of
prior convictions to prove that element. We review the district court’s evidentiary
ruling for abuse of discretion. United States v. Spears, 469 F.3d 1166, 1170 (8th Cir.
2006) (en banc).



                                         -6-
       We agree with the view of several courts, summarized by the Tenth Circuit, that
“[a] jury could infer from Defendant’s prior drunk driving convictions that he is
especially aware of the problems and risks associated with drunk driving.” United
States v. Tan, 254 F.3d 1204, 1210 (10th Cir. 2001); see United States v. Lorea, 923
F.2d 725, 729 (9th Cir. 1991); United States v. Fleming, 739 F.2d 945, 949 (4th Cir.
1984) (“[T]he driving record was relevant to establish that defendant had grounds to
be aware of the risk his drinking and driving while intoxicated presented to others.”).
New contends that we should take a different view in this case, because there is no
evidence that he was actually driving a vehicle in the incidents that led to his prior
convictions. South Dakota law authorizes a conviction for driving under the influence
of alcohol where an intoxicated person either drives or is “in actual physical control”
of a vehicle. S.D. Codified Laws § 32-23-1. Thus, the state supreme court upheld a
conviction even where a defendant was merely asleep behind the wheel of a stationary
vehicle with the keys in one of his pockets. State v. Kitchens, 498 N.W.2d 649, 651-
652 (S.D. 1993). Our decision in United States v. McCall, 439 F.3d 967, 972-973 (8th
Cir. 2006) (en banc), held that a felony conviction for DUI qualifies as a “violent
felony” under 18 U.S.C. § 924(e) only if there is evidence that the offender was
actually driving while intoxicated. Because we concluded in McCall that an offender
convicted of DUI without driving did not “present a serious potential risk of physical
injury to another,” 439 F.3d at 973, New argues that absent evidence that his prior
convictions were premised on actually driving while intoxicated, the convictions are
not probative of his knowledge in the instant case.

       We are not persuaded that McCall’s analysis of § 924(e) dictates the proper
interpretation of Federal Rule of Evidence 404(b). The issue in this case was not
whether the conduct underlying New’s prior convictions presented a serious potential
risk of physical injury, but whether the fact that New sustained those convictions
tended to make it more probable that he had knowledge of the risks of driving while
intoxicated. The prior convictions were relevant, because “[o]ne who drives a vehicle
while under the influence after having been convicted of that offense knows better

                                         -7-
than most that his conduct is not only illegal, but entails a substantial risk of harm to
himself and others.” Tan, 254 F.3d at 1210 (emphasis in original) (internal quotation
omitted). Whether or not New’s prior convictions involved the underlying conduct
of driving a vehicle is not dispositive. An offender who has been convicted and
punished for operating a parked car while intoxicated would be acutely aware of the
seriousness with which society treats drunk driving: The risk of injury to others is so
grave that even one who merely gets behind the wheel of a vehicle while intoxicated
is subject to criminal sanction. Therefore, the district court did not abuse its discretion
in concluding that New’s prior DUI convictions were admissible to show knowledge
under Rule 404(b).

                                            C.

       New next contends that the district court erred by declining to order production
of Agent Bennett’s case report after he testified. The Jencks Act requires the district
court, on the motion of a defendant, to produce any “statements” of a government
witness that relate to the subject matter of the witness’s testimony, after the witness
has testified on direct examination. 18 U.S.C. § 3500(b). The “statements” that must
be produced include any written statement made by the witness. Id. § 3500(e)(1). We
review a district court’s ruling under the Jencks Act for clear error. United States v.
Newton, 259 F.3d 964, 967 (8th Cir. 2001).

      In this case, defense counsel discovered through cross examination of Agent
Bennett that the agent had prepared a case report that the government had not
produced. In a bench conference, the prosecutor declared that she had turned over all
information Bennett had gathered in the course of his investigation, but that she had
not turned over his report describing details of the case, because it contained no
impeachment or exculpatory material. The court asked the prosecutor if she had
reviewed this report for material discoverable under Brady v. Maryland, 373 U.S. 83
(1963). When the prosecutor affirmed that she had, the court declared, “Case report

                                           -8-
is not covered under discovery rules. It’s summaries of interviews, any Brady
material, any Jencks material. I’m going to deny the request.”

        There is no requirement in the Jencks Act that a statement meet a threshold for
impeachment value or include exculpatory evidence before it is discoverable. As long
as it is a “statement” that “relates to the subject matter as to which the witness has
testified,” 18 U.S.C. § 3500(b), then it should be ordered produced. The report at
issue is a five-page typewritten document, headed “Details of Case,” that sets forth
actions that Bennett took on the date of the accident and observations that he made at
the scene of the accident. The agent’s report describing what he saw and did at the
crime scene is related to his testimony on direct examination about the crime, and we
see no basis to conclude that it is not a “statement” discoverable under the Jencks Act.

       Having determined that there was noncompliance with the Jencks Act, we must
consider whether the error requires reversal of New’s conviction. Where, as here,
there is no indication of bad faith on the part of the government, we will not reverse
unless there is a showing of prejudice to the defendant. United States v. Douglas, 964
F.2d 738, 741 (8th Cir. 1992); United States v. Roberts, 848 F.2d 906, 908 (8th Cir.
1988).

       New gave only one example of potential prejudice in his brief on appeal. He
contends that Bennett’s report mentioned that one of New’s shoes was found stuck on
the vehicle’s center console, which was dislodged from its original location. New
claims he could have used this information to show a discrepancy between what
Bennett remembers from the scene and the testimony of another officer regarding the
scene. Even without the report, however, New was able to adduce the relevant
evidence from Bennett. On direct examination, Bennett testified that he had seen
New’s shoe at the center console of the vehicle. On cross examination, he testified
that the console was “ajar.” In short, Bennett’s testimony on the witness stand was
entirely consistent with his written report on these points. There is no reason to

                                          -9-
believe that New was prejudiced by his inability to review Bennett’s prior consistent
statement.

       At oral argument, New’s counsel argued that Bennett’s report would have
helped his cross examination of Agent Cresalia. New claims that his confession to
Cresalia was influenced by detailed information that Cresalia gave him about the
crash, which convinced New that he must have been the driver. Cresalia’s testimony
was inconsistent with New’s assertion that Cresalia provided detailed information,
because Cresalia said he only knew the barest information about the accident from two
phone conversations he had with Bennett. Bennett’s courtroom testimony agreed with
Cresalia’s.

       This theory is an unlikely basis for showing prejudice under the Jencks Act, for
the purpose of the disclosure requirement is to assist the defense in cross-examining
the witness who made the statement, not with questioning some other witness (in this
case, a witness who already had testified before Bennett even appeared). See Jencks
v. United States, 353 U.S. 657, 666-67 (1957). Even so, Bennett’s report is not
inconsistent with Cresalia’s testimony. Bennett recorded that in the first telephone
conversation, he gave Cresalia the names of the victims and briefed him on the
investigation. Bennett had not yet been to the scene, so this briefing could not have
included the details that New claims Cresalia divulged to him. As to their second
conversation after Bennett arrived at the scene, Bennett noted in his report only that
he had paged Cresalia, and that Cresalia “returned the message immediately and
briefed [sic] on the investigation.” Bennett wrote that he asked Cresalia to do a blood
draw and check New’s condition. The report does not state that Bennett provided
Cresalia with details about the accident and the scene of the crash. Accordingly, we
conclude that New was not prejudiced by the government’s failure to disclose
Bennett’s report in accordance with the Jencks Act.




                                         -10-
                                           D.

       New also alleges two instances of prosecutorial misconduct – improper
questioning of a government witness and improper comments in closing argument.
To obtain a reversal based on prosecutorial misconduct to which there was proper
objection, a defendant must show that (1) the prosecutor’s remarks or conduct were
improper, and (2) the remarks or conduct affected the defendant’s substantial rights
so as to deprive him of a fair trial. United States v. Mullins, 446 F.3d 750, 757 (8th
Cir.), cert. denied, 127 S. Ct. 284 (2006). If the remarks were improper, then we
determine whether they deprived the defendant of a fair trial by examining the
cumulative effect of the misconduct, the strength of the properly admitted evidence
of the defendant’s guilt, and any curative actions taken by the trial judge. Id. The
ultimate question is “whether the prosecutor’s comments, if improper, so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Id.
(internal quotation and citations omitted).

       The first instance of alleged misconduct involved the prosecutor’s cross
examination of John Mousseau, a police officer who was at the scene of the accident
and spoke briefly with New before he was taken to the hospital. When Mousseau
asked who had been driving, New paused for thirty to forty-five seconds and then said
his cousin drove. In her cross examination, the prosecutor sought to have the officer
testify as to whether he thought New’s statement was truthful. Defense counsel
objected to the question as asking for an “improper lay opinion,” and the judge
sustained the objection. Then, the prosecutor asked a series of questions designed to
lay a foundation for the officer giving an expert opinion as to the statement’s veracity,
but when she again asked for his opinion, the defense objected and the court sustained
it. New argues that this questioning improperly suggested that New was lying.

      We are troubled that the prosecutor sought to elicit an opinion about New’s
credibility from a law enforcement agent who interviewed him. New’s credibility was

                                          -11-
plainly a question for the jury, and it was not a proper subject of lay or expert opinion
testimony. Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir. 2006). The district court,
however, properly sustained New’s objections to the questions seeking to elicit an
opinion on credibility, and New did not request a mistrial. The court further instructed
the jury that questions are not evidence. (R. Doc. 69, Jury Instruction 6). Even
without the prosecutor’s improper questions, New’s lengthy pause in response to
Mousseau’s question was part of the record and laid the foundation for legitimate
argument about New’s credibility. We are confident that the prosecutor’s questions,
standing alone, did not deprive New of a fair trial.

       The second allegation of misconduct relates to the prosecutor’s closing
argument. New made no contemporaneous objection, so we review the claim of
misconduct under the plain error standard. United States v. Ehrmann, 421 F.3d 774,
783 (8th Cir. 2005), cert. denied, 126 S. Ct. 1099 (2006). If New shows an obvious
error that affected his substantial rights, then we may correct the error if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 732 (1993).

       Near the beginning of her closing argument, the prosecutor stated, “[T]here’s
no more desperate person sitting in this courtroom today than Donovan New. Why,
you ask? Because he’s a convicted felon; he’s going back to prison and he knows it.”
New argues that this statement sought improperly to appeal to the passions and
prejudices of the jury, and that it affected the fairness, integrity, and public reputation
of the proceeding.

        We are not persuaded that this comment was obviously improper. New testified
at trial, and his credibility was at issue. That he was a convicted felon is relevant to
his credibility, see Fed. R. Evid. 609(a)(1), and it was not improper to suggest that his
desire to avoid punishment gave him a motive that is relevant to judging his
credibility. The characterization of New as “desperate” and the reference to “going

                                           -12-
back to prison” may have pressed the bounds of fair argument, but it must be
remembered that as long as the argument was supported by reasonable inferences from
the evidence, a prosecutor is not forbidden to use “colorful and forceful language” in
her argument to the jury. Mullins, 446 F.3d at 759. “If an arguably improper
statement made during closing argument is not objected to by defense counsel, we will
reverse only under exceptional circumstances.” Id. (internal quotation omitted). We
do not think these disputed comments, even assuming they were improper, so infected
the trial with unfairness that relief is warranted.

                                           E.

       New also challenges the sentence imposed. He first contends that the district
court erroneously calculated his advisory guideline range by adjusting his offense
level based on obstruction of justice under USSG § 3C1.1. The government argued
that New should receive a two-level adjustment for committing perjury at trial. The
district court, after hearing argument on the matter, found as follows: “Having
reviewed his testimony, a transcript of his testimony, having listened to it at trial, I
find that he did attempt to suborn perjury, so I find the two-level enhancement
applies.” (S. Tr. at 8). There was no argument that New attempted to suborn perjury
by another, so we presume the district court misspoke and intended to express a
finding that New committed perjury. This meaning is evident from the court’s
subsequent statement that “I think the statement during trial was not truthful,” and the
court’s ultimate conclusion that New committed “perjury.” (Id. at 9).

        Pursuant to USSG § 3C1.1, a defendant is subject to an adjustment for
obstruction of justice if he willfully testifies falsely under oath regarding any material
matter. The court may not apply the upward adjustment simply because a defendant
testifies on his own behalf and the jury disbelieves him. Rather, the court must
conduct an independent evaluation and determine whether the defendant committed
perjury. United States v. Dunnigan, 507 U.S. 87, 95 (1993). We review a trial court’s

                                          -13-
factual findings for clear error and its construction of the advisory guidelines de novo.
United States v. Garcia-Gonon, 433 F.3d 587, 591-92 (8th Cir. 2006).

       The district court compared New’s courtroom testimony that he could not
remember anything about the night of the accident with the detailed statement that
New gave to Agent Cresalia in the hospital. The court recounted New’s statement to
Cresalia, in which New claimed that he swerved to avoid a pedestrian, and remarked
that “[t]his is not somebody that was fussy with the facts about what happened or
couldn’t quite remember what happened.” (S. Tr. at 8). The court found that New
“had a very detailed memory of what he told Agent Cresalia,” but “after he heard what
his possible defense was[,] that’s what his testimony became, and that’s perjury.” (Id.
at 9). We conclude that the district court’s statement was a specific finding of perjury
and was adequately supported by the record.

       New also contends that the 144-month sentence imposed by the district court
was unreasonable with regard to 18 U.S.C. § 3553(a). He contends that a survey of
federal involuntary manslaughter cases reported in a commercial database show that
New’s sentence is the longest federal sentence in the country for vehicular homicide
in the last ten years. For that reason, he says, the district court’s sentence fails to
consider “the need to avoid unwarranted sentence disparities among defendant with
similar records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). New raised no objection to the sentence on this or any other ground at
the sentencing hearing. (S. Tr. at 2, 16, 20).

      The advisory guideline range for New was 120-144 months’ imprisonment,
with the high end of the range equal to the statutory maximum penalty. The court
explained that “[w]hen I look at your past and I look at the factors in § 3553(a), all of
them point to you getting a sentence at the highest level that I could do.” (S. Tr. at
15). The court recounted New’s lengthy and violent criminal record – which included
twenty-three criminal history points under the sentencing guidelines and thirteen more

                                          -14-
crimes for which no points were scored – and noted that the instant offense occurred
barely a month after New was released from prison. (S. Tr. at 15-16). The court
observed that New had committed domestic violence against his wife, and that when
he was given an opportunity to learn skills and gain an education, he committed arson
at the job corps facility. The court found that “[t]o protect society, in particular,” the
maximum sentence of 144 months was appropriate. (S. Tr. at 16).

        The sentence imposed was within the advisory guideline range, and we accord
it a presumption of reasonableness. See Rita v. United States, No. 06-5754, 2007 WL
1772146, at *6 (U.S. June 21, 2007); United States v. Lincoln, 413 F.3d 716, 717 (8th
Cir. 2005). Where the district court’s judgment conforms to the work of the
Sentencing Commission, it is likely that the resulting sentence is reasonable. Rita,
2007 WL 1772146, at *6. New’s survey of other involuntary manslaughter cases does
not convince us otherwise. If other offenders received lesser terms of imprisonment
based on more favorable advisory guideline ranges, then the differences in sentence
are likely explained by differences in offense conduct or criminal histories, which are
accounted for in the advisory guidelines. New’s submission does not persuade us that
the district court’s sentence will result in unreasonable sentence disparities among
similarly-situated defendants.

                                    *       *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




                                          -15-
