                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-3020
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Northern District of Iowa.
Ricardo Watkins, also known as           *
Mac,                                     *      [UNPUBLISHED]
                                         *
            Appellant.                   *

                               ________________

                               Submitted: February 13, 2008
                                   Filed: May 1, 2008
                               ________________

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

PER CURIAM.

      This case is before us on remand from the United States Supreme Court for
reconsideration in light of Kimbrough v. United States, 552 U.S. ---, 128 S. Ct. 558
(2007). After reconsidering Ricardo Watkins’s sentence as directed by the Supreme




      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
Court, we find that the district court2 did not commit the procedural error identified
in Kimbrough and did not abuse its substantial discretion in imposing a life sentence.
See Gall v. United States, 552 U.S. ---, 128 S. Ct. 586, 597 (2007). We again affirm.

       A jury found Watkins guilty of conspiracy to distribute or possess with intent
to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A) and 846, and of distributing less than five grams of cocaine base,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). In his sentencing memorandum,
Watkins requested a downward variance from the advisory guidelines range because
he was not arrested until 2005 for his alleged actions during the mid to late 1990s; he
was influenced by gang activity when he grew up in Chicago; he was close to his two
children, his mother, and her husband; he had a construction business in Chicago; he
maintained a B average in college; and he was not currently engaged in drug-related
activity. Watkins also argued that a sentence within the advisory guidelines range
would create unwarranted sentencing disparities with the other defendants involved
in the conspiracy. In a supplemental sentencing memorandum, Watkins argued that
the district court should vary downward from the advisory guidelines range because
of the sentencing disparity created by the 100:1 ratio between crack and powder
cocaine in the United States Sentencing Guidelines.

      At the sentencing hearing, the district court heard arguments from Watkins and
the Government. The district court then thoroughly discussed the factors in 18 U.S.C.
§ 3553(a) as applied to Watkins, including the nature and circumstances of his
offense; his history and characteristics; the need to impose a sentence that reflects the
seriousness of the offense, affords adequate deterrence to criminal conduct, protects
the public from further crimes, and provides Watkins with needed educational or
vocational training, medical care, or correctional treatment in the most effective


      2
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

                                          -2-
manner; the kinds of sentences available; the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct; and a finding that restitution was not an issue in Watkins’s case. The
district court then stated:

      On the issue of variance, the Court is aware that it does have the power
      to vary from an advisory guideline sentence. Certainly, the sentencing
      guidelines are not mandatory. . . . I have carefully considered the
      arguments made by the defendant in this case, and I decline to vary after
      studying them. To vary would, in my opinion, run afoul of the statutory
      factors at 18 United States Code Section 3553(a).

Sent. Tr. at 54. The district court denied Watkins’s motion for a new trial and
sentenced him to life in prison, a sentence within the advisory sentencing guidelines
range. Watkins appealed the district court’s denial of his motion for a new trial and
his sentence. This court affirmed both decisions. See United States v. Watkins, 486
F.3d 458 (8th Cir. 2007), vacated, 552 U.S. ---, 128 S. Ct. 906 (2008). Affirming the
sentence, this court rejected Watkins’s argument that the 100:1 ratio was per se
unreasonable. See id. at 470 n.8.3

       We again reject Watkins’s argument that a sentence within an advisory
guidelines range based on the 100:1 ratio is per se unreasonable. In Kimbrough, the
Supreme Court held that a district court “may consider the disparity between the
Guidelines’ treatment of crack and powder cocaine offenses,” Kimbrough, 128 S. Ct.
at 564, and further elaborated that “[i]t would not be an abuse of discretion for a
district court to conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence ‘greater than necessary’ to achieve §
3553(a)’s purposes, even in a mine-run case,” id. at 575. However, “[t]he Supreme
Court did not hold . . . that the crack cocaine guidelines are categorically unreasonable


      3
       We now reinstate the vacated opinion, with the exception of footnote eight.

                                          -3-
. . . .” United States v. Moore, 518 F.3d 577, 579 (8th Cir. 2008). Thus, we again
reject Watkins’s argument that a sentence based on a 100:1 ratio is per se
unreasonable.

        Watkins does not claim that the district court did not believe that it had the
authority to vary based on the disparity created by the 100:1 ratio. Even had he made
such an argument, we would reject it. In reviewing the sentencing transcript, we find
no support for the proposition that the district court did not believe it had the authority
to vary based on the crack/powder disparity. As in Moore, the district court “did not
state it had no discretion under [United States v. Booker, 543 U.S. 220 (2005)] to take
the crack/powder guidelines disparity into account in deciding whether a variance was
warranted by the discretionary § 3553(a) factors.” Moore, 518 F.3d at 580. Rather,
the record suggests that the district court rejected all of Watkins’s reasons to vary and
instead chose to impose a guidelines sentence because the § 3553(a) factors it had just
thoroughly discussed simply did not warrant a variance in the particular circumstances
of this case. As there was no circuit authority to the contrary4 and because the district
court did not suggest that it lacked authority to vary based on the crack/powder
disparity, we presume that the district court knew that such a variance was
permissible. Id. (“[W]e presume the district court was aware that Booker granted it
discretion to vary downward based upon the impact of the crack cocaine guidelines
on this defendant, but elected not to exercise that discretion.”). Therefore, the district
court did not commit the procedural error identified in Kimbrough.

      Finally, for the reasons discussed in this opinion and our prior opinion, Watkins,
486 F.3d at 470-71, and based on the district court’s thorough analysis of the §
3553(a) factors, we again conclude that the district court did not abuse its substantial

      4
        As in Moore, Watkins was sentenced prior to our Spears decision, which held
that a district court could not vary downward based solely on its categorical rejection
of the 100:1 ratio, see United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en
banc), vacated, 552 U.S. ---, 128 S. Ct. 858 (2008).

                                           -4-
discretion when it imposed a within-guidelines life sentence on Watkins and that the
sentence is reasonable. See Gall, 128 S. Ct. at 597. As we noted in our prior opinion,
Watkins’s life sentence “was within the range of choice dictated by the facts of the
case.” Watkins, 486 F.3d at 471.

      Accordingly, we affirm Watkins’s sentence.
                     ______________________________




                                         -5-
