                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                   No. 06-3489
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United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Western District of Missouri.
Keith A. Jones,                           *
                                          *
             Appellant.                   *

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                             Submitted: April 12, 2007
                                 Filed: July 10, 2007
                                ________________

Before MELLOY, BOWMAN and GRUENDER, Circuit Judges.
                      ________________

GRUENDER, Circuit Judge.

       In May and June 2005, an undercover police officer made several purchases of
cocaine base, or “crack” cocaine, from Keith Jones in Kansas City, Missouri. Jones
was arrested for this activity and indicted by a federal grand jury. He pled guilty to
five counts of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)-(C).

      At the sentencing hearing, Jones’s counsel argued for a downward variance
from the agreed advisory United States Sentencing Guidelines range of 130 to 162
months’ imprisonment based upon Jones’s addictions to alcohol and cocaine at the
time of his conduct, his limited role as a “quintessential street dealer,” and the
disparity with which the sentencing guidelines treat crack versus powder cocaine. The
Government recommended a sentence of 140 months, emphasizing the danger posed
by crack cocaine, Jones’s offense conduct and his criminal history. The district court1
sentenced Jones to 140 months’ imprisonment. In doing so, the court declined to
grant Jones’s requested variance and declined to sentence Jones at the bottom of the
advisory guidelines range because it did not “believe the low end of the guideline
range to be appropriate here.”2 After announcing the sentence, recommendations
regarding drug treatment and the conditions of supervised release, the district court
noted, “[T]he sentence is rather severe, and for good reason. Congress is trying to
control the distribution of drugs in our community.”

       Jones appeals, arguing first that the record as a whole demonstrates that the
district court failed to consider adequately the sentencing factors of § 3553(a) as
required by United States v. Booker, 543 U.S. 220, 259-60 (2005). Because there is
no dispute about the district court’s computation of the advisory guidelines sentencing
range, we review Jones’s sentence for reasonableness. United States v. Mosqueda-
Estevez, 485 F.3d 1009, 1012 (8th Cir. 2007). “We review the reasonableness of a

      1
       The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
      2
        In declining to grant a variance, the district court said, “[A] downward
departure does not appear to be appropriate here and will not be allowed.” It is
apparent from the context of the remark that the district court misspoke, saying
“departure” instead of “variance.” Jones did not request a departure under the
guidelines, and the district court’s denial came moments after the parties argued about
the propriety of a variance. See, e.g., United States v. Pool, 474 F.3d 1127, 1129 n.1
(8th Cir. 2007) (assuming from context that the district court “varied” when it stated
that it was going to “depart” from the guidelines). Jones argues here that this
statement by the district court is evidence that it “failed to appreciate” that the
sentencing guidelines are now advisory. We do not agree with Jones’s conclusion.

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sentence for abuse of discretion.” United States v. Bonahoom, 484 F.3d 1003, 1005
(8th Cir. 2007). “A sentencing court abuses its discretion if it fails to consider a
relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.” Id. at 1006 (quoting
United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005)).

       Like the appellant in Mosqueda-Estevez, Jones argues that his sentence is
unreasonable “because the district court failed to make a record sufficient for this
court to review it under the enumerated factors of § 3553(a)” and “essentially asserts
only an assumed right to a sentencing hearing in which the district court ritualistically
explains each § 3553(a) factor, the facts that bear upon it, and its weight in
determining the ultimate sentence.” 485 F.3d at 1012. Mosqueda-Estevez forecloses
relief based upon this argument:

       A defendant has a right to a sentence that is reasonable given the facts of
       the case and the relevant sentencing factors; they do not have a right to
       have their sentences handed down according to any particular script. To
       prevail on appeals such as this one, a defendant must claim that his
       sentence was unreasonable under the circumstances of his case. . . . [W]e
       have not held that the brevity of the record alone gives rise to a claim of
       per se unreasonableness.

Id. at 1012-13 (citations omitted). We find support for our position in Rita v. United
States, in which the Supreme Court analyzed a district court’s adherence to 18 U.S.C.
§ 3553(c), which requires that the court openly state its reasons for imposing its
particular sentence, and held that “[w]here a matter is [] conceptually simple . . . and
the record makes clear that the sentencing judge considered the evidence and
arguments, we do not believe the law requires the judge to write more extensively.”
No. 06-5754, slip op. at 20 (June 21, 2007). After hearing arguments for a downward
departure or, alternatively, a variance, the district court in Rita said that the guidelines
range was not “inappropriate,” and the Supreme Court affirmed the district court’s

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brief treatment as “legally sufficient.” Id. at 19. Here, the district court similarly
considered arguments for a reduced sentence and concluded that it would not “be
appropriate here.” Although we are mindful that Rita’s holding and analysis on this
point applies expressly to § 3553(c),we believe that its logic applies with equal force
with respect to Jones’s argument here. We therefore reject Jones’s argument that the
brevity of the district court’s record on the § 3553(a) sentencing factors requires us
to find that his sentence is unreasonable.

       To the extent Jones suggests that his sentence is unreasonable because the
district court failed to consider the particular circumstances of his case, we disagree.
As we have repeatedly held, “It is not necessary for the district court to provide a
mechanical recitation of the § 3553(a) factors so long as it is clear from the record that
the court considered them.” United States v. Shan Wei Yu, 484 F.3d 979, 988 (8th Cir.
2007) (internal quotations omitted). At the outset of the hearing, the district court
noted that it had reviewed the presentence investigation report prepared by the
probation office. The report contains extensive information regarding Jones, his
history and characteristics, the nature and circumstances of the offense, the kinds of
sentences available, and a recommended advisory sentencing guidelines range, all of
which are factors under § 3553(a). Further, the record shows that the district court
heard and acknowledged arguments from both Jones and the Government which
addressed Jones’s history and characteristics, his role in the offense and the need to
avoid unwarranted sentencing disparities, all § 3553(a) factors. Although “we urge
each district court to make a clear record of its reasons for imposing a particular
sentence with explicit reference to § 3553(a),” Mosqueda-Estevez, 485 F.3d at 1013,
the record shows that the district court did consider the relevant § 3553(a) factors. See
Shan Wei Yu, 484 F.3d at 988.

      Jones’s second argument is that the district court failed to consider the so-called
“100:1 disparity” between crack cocaine and powder cocaine under the sentencing
guidelines and that this factor should have received significant weight. We are not

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convinced that the 100:1 ratio employed in the sentencing guidelines constitutes a §
3553(a) factor, much less one entitled to “significant weight.” See United States v.
Spears, 469 F.3d 1166, 1175 (en banc) (“We do not adopt or endorse the Third
Circuit’s opinion that the crack/powder cocaine differential in the Guidelines may be
a factor in the post-Booker sentencing process.”), petition for cert. filed (Mar. 2, 2007)
(No. 06-9864). Nevertheless, even if we were to presume that the 100:1 ratio is a
relevant sentencing factor, the district court considered Jones’s argument that the
crack cocaine penalties would punish him too severely and nevertheless decided to
sentence him to 140 months’ imprisonment–ten months above the bottom of the
guidelines range–clearly rejecting his argument for a sentence below the advisory
guidelines range. We see no abuse of discretion in the district court’s sentencing
Jones within the agreed advisory guidelines range.

      For the foregoing reasons, we affirm the district court’s judgment and sentence.

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