                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3050
                                   ___________

United States of America,            *
                                     *
          Plaintiff - Appellee,      *
                                     *    Appeal from the United States
     v.                              *    District Court for the
                                     *    Northern District of Iowa.
Anthony Dion Clay,                    *
                                     *
          Defendant - Appellant.     *
                                ___________

                             Submitted: April 15, 2008
                                Filed: May 7, 2008
                                 ___________

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Anthony Dion Clay pled guilty to distribution of more than 5 grams of crack
cocaine after having previously been convicted of felony drug offenses, and the
district court1 sentenced him as a career offender to 262 months, a sentence at the
bottom of the applicable guideline range. He argues on his direct appeal from the
judgment and sentence that the district court should have granted his motion for a
downward variance based on the unfair discrepancy between crack and powder
cocaine sentences or alternatively, that he was entitled to a lower sentence based on

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
amendments to the sentencing guidelines for crack offenses which were then pending
but have now been enacted and apply retroactively. See USSG. app. C, amend. 706
& 711 (Supp. 2007); USSG app. C, amend. 713 (Supp. 2008).

       The district court's application of the advisory sentencing guidelines is reviewed
de novo. See United States v. Burnette, 518 F.3d 942, 945 (8th Cir. 2008). We
review the sentence the court imposed for abuse of discretion, evaluating whether any
significant procedural error occurred and considering the substantive reasonableness
of the sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United
States v. Whiting, No. 07-2599, 2008 WL 961171 (8th Cir. April 10, 2008). We may
presume that a sentence resulting from a proper application of the advisory guidelines
is reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007); see also
United States v. Miles, 499 F.3d 906, 909 (8th Cir. 2007) (sentence within properly
calculated guideline range presumptively reasonable).

      At the sentencing hearing the district court stated that in determining Clay's
sentence it had considered all the relevant factors under 18 U.S.C. § 3553(a) and that
the downward variance Clay requested based on the sentencing disparity between
crack and powder cocaine would have no effect on the career offender provision
which determined his guideline range. At sentencing the drug quantity for which Clay
was responsible (736.72 grams of crack) produced a base offense level of 36 under the
drug quantity table in USSG § 2D1.1 (under the new amendments it would have been
34). Clay's offense level under the career offender provision in USSG § 4B1.1 was
37, however, and that level applied because it was "greater than the offense level
otherwise applicable." USSG § 4B1.1(b).2 After subtracting three levels for
acceptance of responsibility, the district court found that Clay's total offense level was


      2
       Thus, even though Clay's base offense level for drug quantity would be
lowered to 34 under the amendments, his guideline range would still be driven by his
career offender offense level of 37.

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34 and his criminal history category as a career offender was VI, leading to a
guideline range of 262–327 months.

       Although the district court was authorized to consider the disparity between
crack and powder cocaine sentences, it was not required to do so. See Kimbrough v.
United States, 128 S. Ct. 558, 575 (2007); United States v. Johnson, 517 F.3d 1020,
1024 (8th Cir. 2008); United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).
Clay is also not eligible for a sentence reduction based on the amendments to the crack
sentencing guideline because his sentencing range was determined by the career
offender provision in USSG § 4B1.1. See United States v. Tingle, No. 08-1777, (8th
Cir. May 1, 2008) (per curiam). Although the recent amendments to the sentencing
guidelines lowered the offense levels associated with crack in the drug quantity table
in USSG § 2D1.1, they did not change the career offender provision in § 4B1.1 and
thus would not lower Clay's sentencing range. See id. at 2 (Amendment 706 does not
apply retroactively if it does not lower defendant's applicable guideline range); see
also USSG § 1B1.10(a)(2)(B) (Supp. Mar. 3 2008); cf. United States v. Moore, 481
F.3d 1113, 1115 (8th Cir. 2007) (arguments concerning crack/powder ratio are
irrelevant if the ratio had no impact on career offender's sentence).

      We conclude that the district court did not abuse its discretion in denying the
downward variance requested by Clay and that the sentence imposed was not
unreasonable. Accordingly, we affirm the judgment of the district court.
                     ______________________________




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