                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-1520
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Arkansas
Jermel Knauls,                           *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: March 14, 2011
                                 Filed: April 11, 2011
                                  ___________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
                         ___________

PER CURIAM.

      After surveillance determined that a suspected drug dealer and two drug
couriers had arrived at an apartment in Fort Smith, Arkansas, with a cocaine shipment
from Houston, Texas, police officers and agents from the Drug Enforcement
Administration (“DEA”) orchestrated a controlled buy of crack cocaine from the drug
dealer. Soon after the controlled buy, police officers searched the apartment, pursuant
to a warrant, and found Jermel Knauls and six other individuals along with
approximately eighteen ounces of powder cocaine, a loaded handgun, $2,050 in
marked currency from the earlier controlled buy, an additional $11,860, drug
packaging material, and digital scales. Knauls admitted that he had purchased
cocaine on numerous occasions from one of the men arrested in the apartment, that
he was planning to purchase cocaine on the day of his arrest, and that in the past he
had taken powder cocaine to a friend for conversion to crack cocaine. Knauls was
indicted and pled guilty, pursuant to a plea agreement, to one count of conspiracy to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

       The quantity of drugs attributable to Knauls resulted in a guidelines base
offense level of 20. Knauls had 14 criminal history points, resulting in a criminal
history category of VI. Knauls qualified for the career offender enhancement
pursuant to U.S.S.G. § 4B1.1(a), which increased his offense level to level 32. The
district court1 then reduced the offense level by three for acceptance of responsibility.
§ 3E1.1. Thus, Knauls’s total offense level was 29 and his advisory guidelines range
was 151 to 188 months. The district court then varied downward and sentenced
Knauls to 111 months’ imprisonment. Knauls appeals, arguing that his sentence is
substantively unreasonable.

       We will not reverse a sentence as substantively unreasonable absent a showing
of abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States
v. Miner, 544 F.3d 930, 932 (8th Cir. 2008). “A district court abuses its discretion
when it fails to consider a relevant factor, gives significant weight to an irrelevant or
improper factor, or considers only appropriate factors but nevertheless commits a
clear error of judgment by arriving at a sentence that lies outside the limited range of
choice dictated by the facts of the case.” United States v. San-Miguel, --- F.3d ---,
2011 WL 476594, at *3 (8th Cir. Feb. 11, 2011) (quoting United States v. Jones, 509
F.3d 911, 913 (8th Cir. 2007)). “[I]t will be the unusual case when we reverse a
district court sentence . . . as substantively unreasonable.” United States v. Feemster,




      1
       The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

                                          -2-
572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545
F.3d 1089, 1090 (D.C. Cir. 2008)).

       Knauls’s sole argument is that the district court “gave too little weight to the
extreme disparity between the sentences imposed” on Knauls and his co-defendants.
“[T]he need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct” is a necessary factor for the
court to consider when imposing a sentence. See 18 U.S.C. § 3553(a)(6). Therefore,
Knauls’s argument is that the district court considered appropriate factors but
nevertheless committed a clear error of judgment by placing insufficient weight on
§ 3553(a)(6).

       Contrary to Knauls’s contention, the district court placed great weight on
avoiding unwarranted sentencing disparities in this case. In fact, the district court
varied downward to a sentence 40 months below the bottom of the advisory
guidelines range after it explicitly considered the sentencing disparity between
Knauls and his co-defendants. Finding the advisory guidelines range to be both
“unwarranted and unjust,” the district court substantiated its downward variance by
stating that:

      The application of the [career offender enhancement] in this case has
      resulted in an inequitable term of imprisonment for Defendant Knauls.
      The Court further notes that a series of motions for downward departure
      pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) have been filed
      in this case [for Knauls’s co-defendants]. They have resulted in
      [co-]defendants more culpable than Knauls receiving sentences that are
      less severe.

      Moreover, the resulting sentence disparity between Knauls and his co-
defendants was not unwarranted because Knauls was not similarly situated to his co-
defendants. See United States v. Plaza, 471 F.3d 876, 880 (8th Cir. 2006) (“[When
co-defendants] are not similarly situated, . . . the district court does not need to

                                         -3-
sentence the[m] . . . to the same length of imprisonment to avoid an unwarranted
sentencing disparity.”). Two of the three co-defendants—Cleonis Dean, sentenced
to 108 months, and Charles Brisco, sentenced to 37 months—had a criminal history
category of I and did not qualify for the career offender enhancement. See United
States v. Shepard, 2011 WL 1057557, at *1 (8th Cir. Mar. 23, 2011) (unpublished per
curiam) (holding that the defendant was “not similarly situated with his
co-conspirator for sentencing purposes” because the defendant, unlike his co-
conspirator, was a career offender); United States v. Davis-Bey, 605 F.3d 479, 483
(8th Cir. 2010) (holding that a substantial difference between the criminal histories
of co-defendants “is a ‘legitimate distinction’” that enables “a district court to impose
a sentence that results in a disparity between co-defendants”). Further, both Brisco
and the third co-defendant cited by Knauls—Michael Whitfield, sentenced to 64
months—cooperated in the prosecution of other co-defendants and received sentence
reductions pursuant to § 5K1.1. See United States v. Gallegos, 480 F.3d 856, 859
(8th Cir. 2007) (per curiam) (“Disparity in sentences between a defendant who
provided substantial assistance and one who provided no assistance . . . is not
‘unwarranted.’”). Knauls, consequently, is not situated similarly to Dean, Brisco, or
Whitfield. Knauls’s reliance on our decision in United States v. Lazenby, 439 F.3d
928 (8th Cir. 2006), is misplaced. In Lazenby, the co-defendants were “remarkably
similar,” unlike the co-defendants in this case. Id. at 932.

      Accordingly, because the district court did not commit a clear error of
judgment in weighing the § 3553(a) factors in this case, Knauls’s sentence is not
substantively unreasonable. Thus, we affirm.
                      ______________________________




                                          -4-
