                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 06-3458
           ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Robert Leon Roberson,                  *
                                       *
            Appellant.                 *
           ___________
                                           Appeals from the United States
           No. 06-3663                     District Court for the
           ___________                     District of Minnesota.

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Donald Leonard Sturgis,                *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: September 25, 2007
                                Filed: February 7, 2008
                                 ___________
Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Robert Leon Roberson and Donald Leonard Sturgis appeal their sentences as
unreasonable on the grounds that the district court failed to adequately consider the
factors in 18 U.S.C. § 3553(a) or to enunciate its reasons under 18 U.S.C. § 3553(c).
They also argue that the district court deprived them of their Sixth Amendment rights
by basing their sentences on drug quantities not found by a jury and challenge the
appellate presumption of reasonableness. Also at issue is the district court’s reliance
on the 100:1 disparity between powder and crack cocaine quantities in the sentencing
guidelines. Additionally, Sturgis raises two arguments pro se. Although the district
court did not err under then-current precedent, we now vacate the sentences and
remand for resentencing.

I. Background

       The defendants were each convicted of conspiracy to distribute 50 grams or
more of cocaine base (“crack cocaine”) and of aiding and abetting possession with
intent to distribute 50 grams or more of crack cocaine. Based on the involvement of
509 grams of crack cocaine, Sturgis was sentenced to 360 months’ imprisonment and
Roberson was sentenced to 198 months. The first time they appealed, we upheld their
convictions but remanded for resentencing in light of United States v. Booker, 543
U.S. 220 (2005). United States v. Roberson, 439 F.3d 934 (8th Cir. 2006). At each
resentencing hearing, the district court again based the guidelines range on 509 grams
of crack cocaine. Upon being resentenced to the same terms, the defendants again
appealed.




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II. Analysis

       We review a sentence to ensure that it is reasonable in light of the factors in 18
U.S.C. § 3553(a) and will not reverse unless the district court abused its discretion.
United States v. Donnelly, 475 F.3d 946, 955 (8th Cir. 2007); United States v.
Thundershield, 474 F.3d 503, 507 (8th Cir. 2007). On appeal, a sentence within the
guidelines is presumptively reasonable. Donnelly, 475 F.3d at 955; see Rita v. United
States, 127 S. Ct. 2456, 2462 (2007) (permitting the use of non-binding appellate
presumptions). We review the district court’s application of the sentencing guidelines
de novo. Thundershield, 474 F.3d at 507.

       The first step in the sentencing process is to determine the proper guidelines
range for the defendant’s sentence. Gall v. United States, 128 S. Ct. 586, 596 (2007);
Thundershield, 474 F.3d at 506-07. A court should then consider whether a departure
or a variance is appropriate and apply the factors in 18 U.S.C. § 3553(a). Gall, 128
S. Ct. at 596-97; Thundershield, 474 F.3d at 506-07. Indications that the sentence
may be unreasonable include: failing to consider a relevant and significant factor,
giving significant weight to an irrelevant or improper factor, and imposing a sentence
outside the guidelines range that is clearly in error and unjustified by the facts.
Donnelly, 475 F.3d at 955.

      A.       Determining the Guidelines Range

       The district court properly based the guidelines range on 509 grams of crack
cocaine, which resulted in a base offense level of 36, and did not err in rejecting
defendants’ argument that it instead use a quantity of 50 grams, which would have
resulted in a base offense level of 32. See United States Sentencing Commission,
Guidelines Manual, § 2D1.1(c) (2003). The base offense level in cases involving
aiding-and-abetting and conspiracy convictions must reflect all of the relevant
conduct. Id. § 1B1.3(a)(1). The jury found both defendants guilty of conspiracy to

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distribute 50 grams or more of crack cocaine and of aiding and abetting one another
to possess with intent to distribute 50 grams or more of crack cocaine. Defendants did
not dispute, either at trial or on appeal, that the government offered into evidence
approximately 509 grams of crack cocaine. Even if the actual possession of the drugs
could be partitioned between the defendants, it would not affect the calculation of the
applicable guidelines range because all the drugs possessed by both constitute relevant
conduct under § 1B1.3(a)(1).

       The defendants incorrectly argue that the district court violated their Sixth
Amendment rights by basing their sentences on drug quantities not found by a jury.
A judge may not impose a sentence greater than the maximum sentence that would be
allowed based on the findings made by the jury and the facts admitted by the
defendant. United States v. Booker, 543 U.S. 220, 232 (2005); United States v. Idriss,
436 F.3d 946, 950 (8th Cir. 2006). Under the now-advisory guidelines, a district court
may still find its own facts that enhance the base offense level of the guidelines range,
so long as the statutory maximum is not surpassed. Idriss, 436 F.3d at 948, 950-51;
see Rita, 127 S. Ct. at 2465-66. Contrary to Roberson’s mischaracterization of the
verdict, the jury found that the defendants possessed 50 grams or more of crack
cocaine, which is punishable by no less than 10 years and no more than life in prison.
21 U.S.C. § 341(b). The district court was therefore empowered to impose a sentence
that considered judicially found facts so long as the sentence did not exceed life
imprisonment.

      B.     § 3553

       Defendants challenge their sentences as unreasonable because the district court
failed to adequately consider the factors in 18 U.S.C. § 3553(a) and failed to
adequately explain the reasons for the sentence as required by § 3553(c). After
determining the appropriate guidelines range, the district court must consider the
factors listed in 18 U.S.C. § 3553(a). Thundershield, 474 F.3d at 506-07. At

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sentencing, the court must “state in open court the reasons for its imposition of the
particular sentence.” 18 U.S.C. § 3553(c). This does not mean that the district court
must issue a full opinion in every case, but it “should set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned basis
for exercising [its] own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468.
The appropriate length of the statement will vary by case and may be relatively brief
if the district court rests its decision on the Sentencing Commission’s reasoning and
“decides simply to apply the Guidelines to a particular case.” Id. More may be
appropriate in an atypical situation or in response to non-frivolous arguments for a
different sentence. Id. While it is preferable that district courts address each §
3553(a) factor at sentencing, that degree of specificity is not necessarily required.
United States v. Otterson, 506 F.3d 1098, 1100 (8th Cir. 2007).

        Regarding Sturgis, the district court adequately considered the § 3553(a) factors
and adequately explained its reasons under § 3553(c). It noted that the guidelines
range in the absence of a career offender enhancement would have been 292 to 365
months, and that after such enhancement the range became 360 months to life. The
court also noted that none of the factors in § 3553(a)(2) or any other part of the statute
justified a lower sentence, especially because Sturgis chose to commit this crime
despite having a family and serving 30 years of probation that he had received from
a prior conviction instead of imprisonment. After further discussion of Sturgis’s
status as a career offender and his unwillingness to become a law-abiding citizen, the
court concluded that the 360-month sentence was “justified under the statutory
factors” and therefore reimposed that sentence. Although the district court did not
address the kinds of sentences available or the need for restitution, neither of those
considerations was particularly applicable in this case. See 18 U.S.C. § 3553(a)(3) &
(7). We are satisfied that the district court considered the arguments that Sturgis
advanced regarding the sentence to be imposed and that the sentence it imposed was
a reasonable one.



                                           -5-
       Regarding Roberson, the district court also adequately considered the § 3553(a)
factors and adequately explained its reasons under § 3553(c). The district court
addressed the need for uniformity in sentences for similar crimes discussed in §
3553(a)(6). Likewise, it expressly stated that the sentence reflected the factors
discussed in § 3553(a)(2). The court also referred to some portions of the presentence
report that discussed Roberson’s personal and family data, which are relevant under
§ 3553(a)(1). Continuing, the district court observed that, referring to background,
conduct in prison, and family situation,

      these are all things that lead to the conclusion that a sentence in the mid-
      range rather than at the very bottom of the guideline range is a fair
      sentence. It takes into account the seriousness of the actual criminal
      conduct in this case, and the need to protect the community. It’s just
      punishment. And it’s necessary in view of all the appropriate sentencing
      considerations.

Roberson Resentencing Hr’g Tr. 31-32. The district court’s statements, although
perhaps a bit abbreviated, satisfy us that it adequately considered Roberson’s
arguments and then reached a reasonable decision.

      C.     Consideration of the Crack/Powder Sentencing Disparity

       The district court ignored Roberson’s and Sturgis’s arguments for lighter
sentences based on the 100:1 disparity between crack and powder cocaine under the
guidelines. Previously, we have expressly refused to authorize such a consideration.
United States v. Spears, 469 F.3d 1166, 1176 (8th Cir. 2006) (en banc) (“[N]either
Booker nor § 3553(a) authorizes district courts to reject the 100:1 quantity ratio and
use a different ratio in sentencing defendants for crack cocaine offenses.”), vacated
and remanded, 2008 WL 59232 (U.S. Jan. 7, 2008) (No. 06-9864 ) (remanding for
further consideration in light of Kimbrough v. United States, 128 S. Ct. 558 (2007)).
Kimbrough held that the sentencing court did not abuse its discretion by considering


                                          -6-
the disparity between crack and powder cocaine sentences. Id. More specifically, a
district court acts within its discretion if it considers the crack/powder disparity in
finding that a within-guidelines sentence is “‘greater than necessary’ to serve the
objectives of sentencing.” Id. at 564 (quoting 18 U.S.C. § 3553(a) (2007)).

        We do not believe, though, that Kimbrough means that a district court now acts
unreasonably, abuses its discretion, or otherwise commits error if it does not consider
the crack/powder sentencing disparity. True, the Supreme Court took a dim view of
the extent of the disparity and was supportive of the Commission’s efforts to reduce
it, see Kimbrough, 128 S.Ct. at 564, 567-68, but it did not appear to mandate that
district courts consider the disparity in all sentences for crimes involving crack
cocaine. Accordingly, we decline to go beyond the facial holding in Kimbrough by
requiring that district courts consider the crack/powder disparity.

       Normally, a district court that is aware of an argument does not abuse its
discretion by not considering it. United States v. Miles, 499 F.3d 906, 909-10 (8th
Cir. 2007). When a district court does not consider an argument because it is unaware
of its power to do so, however, a remand is appropriate. See, e.g., United States v.
Lewis, 249 F.3d 793, 795 (8th Cir. 2001). In Lewis, we could not determine from the
record whether the district court was aware of its authority to grant a downward
departure, and thus we remanded the case to allow the district court to exercise its
discretion in deciding whether to grant or deny the downward departure. Id. In this
case, the district court said nothing in either Roberson’s or Sturgis’s sentencing
hearing about the disparity. It is unclear whether the district court declined to use its
discretion in the requested manner because of then-current Eighth Circuit precedent
or because it did not find that the disparity warranted any variance from the
guidelines. We therefore vacate the sentences and remand to the district court so that
it may reconsider the sentences in light of Kimbrough.




                                          -7-
      D.     Other Arguments

      Our disposition of the sentences renders moot the argument regarding the
alleged improper presumption of reasonableness applied by the district court.

       In his pro se brief, Sturgis argues that the career offender sentence enhancement
violates the Sixth Amendment because the jury is not required to find beyond
reasonable doubt that the prior convictions actually occurred. The argument is
without merit. See United States v. Booker, 543 U.S. 220, 244 (2005). In his pro se
reply brief, Sturgis further argues that his prior convictions should not have been
considered because he did not receive pretrial notice under 21 U.S.C. § 851. This
assertion is also without merit.

       The sentences are vacated and the cases are remanded to the district court for
further proceedings.
                       ______________________________




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