                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-3180
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Brian Elden Osborne,                    *
                                        *   [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: April 11, 2011
                                Filed: June 10, 2011
                                 ___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      Brian Osborne pled guilty to one count of conspiracy to manufacture and pass
counterfeit currency, a violation of 18 U.S.C. § 371. Under the United States
Sentencing Guidelines, Osborne’s total offense level was 16 and his criminal history
category was III, resulting in an advisory sentencing guidelines range of 27-33
months’ imprisonment. Citing the probability of recidivism, the goal of protecting
society, Osborne’s level of culpability in the conspiracy, and the gravity of the
offense, the district court1 sentenced him to 60 months’ imprisonment, the statutory
maximum. On appeal, Osborne argues that the district court erred procedurally by
failing to consider a traditional departure under the guidelines before imposing an
upward variance based on consideration of the 18 U.S.C. § 3553(a) factors. Osborne
also argues that his resulting sentence is unreasonable. We affirm.

       Because Osborne failed to object to the alleged procedural error at the time of
sentencing, we review for plain error. See, e.g., United States v. Mireles, 617 F.3d
1009, 1012 (8th Cir. 2010), cert denied, 562 U.S. ----, 131 S. Ct. 1512 (2011). Under
this standard, the appellant bears the burden of proving that “the district court
committed a legal error that was obvious and affected his substantial rights.” United
States v. Marston, 517 F.3d 996, 1002 (8th Cir. 2008). “An error affects a substantial
right if it is prejudicial.” Mireles, 617 F.3d at 1013 (quoting United States v. Bain,
586 F.3d 634, 640 (8th Cir. 2009), cert denied, 562 U.S. ----, 131 S. Ct. 74 (2010)).
Additionally, the discretionary authority of this court to reverse the error will be
exercised only where “the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. White, 241 F.3d 1015, 1023 (8th
Cir. 2001) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

       We have held that failure to consider explicitly a departure under the guidelines
is error. United States v. Maurstad, 454 F.3d 787, 790 (8th Cir. 2006). However,
Osborne cannot show prejudice, i.e., that he would have received a more favorable
sentence had the district court performed a traditional departure analysis before
considering the § 3553(a) factors. See Mireles, 617 F.3d at 1013. While Osborne
argues only that the facts relied upon by the district court at sentencing would not
have supported a traditional departure under U.S.S.G. § 4A1.3, the district court’s
discretion under § 3553(a) “is not limited solely to circumstances that the formerly


      1
        The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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mandatory guidelines framework would have deemed permissible bases for
departure.” United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). In other
words, the district court could have performed the same § 3553(a) analysis even if it
expressly had found no grounds for a § 4A1.3 departure. Because Osborne has not
met his burden to show that he would have received a lower sentence but for the
district court’s procedural error, his argument fails.

        Osborne also contends that his sentence is unreasonable. “We review the
reasonableness of a sentence for an abuse of discretion.” Maurstad, 454 F.3d at 789.
“A discretionary sentencing ruling . . . may be unreasonable if a sentencing court fails
to consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant 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. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).

       First, Osborne asserts that the district court gave improper weight to his prior
criminal history because the guidelines already accounted for that factor. However,
“a district court may impose an upward variance based on facts already included in
the advisory sentencing guidelines where the advisory guidelines do not fully account
for those facts.” United States v. Jones, 509 F.3d 911, 914 (8th Cir. 2007). Here, the
district court found that only prison stints had interrupted Osborne’s habitual criminal
activity and that imprisonment appeared to be the only effective method of protecting
society from him. The district court’s decision to give these facts additional weight
was not outside the permissible range of choice in this case. See Haack, 403 F.3d at
1004.

      Next, Osborne asserts that the disparity in sentencing between himself and his
co-conspirators was unreasonable. See § 3553(a)(6). However, the district court
found that Osborne was not similarly situated to his co-conspirators due to Osborne’s

                                          -3-
leadership of the conspiracy. Notably, a co-conspirator with no leadership role
already had received an above-the-guidelines sentence of 48 months. Under these
circumstances, Osborne’s statutory maximum 60-month sentence does not represent
a clear error in judgment. See United States v. Frausto, 636 F.3d 992, 997-98 (8th
Cir. 2011) (holding that a defendant who played a “unique role” in a conspiracy was
not similarly situated with his co-conspirators for sentencing purposes).

      For the foregoing reasons, we affirm the sentence imposed by the district court.
                       _____________________________




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