                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2090
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
Richard Mose McElrath,                  * [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: August 6, 2007
                                Filed: August 14, 2007
                                 ___________

Before BYE, RILEY, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

      Richard Mose McElrath, previously convicted for conspiring to distribute and
possess with intent to distribute more than 50 grams of cocaine base (crack), appeals
the 300-month sentence the district court1 imposed at resentencing after this court
remanded the case in light of United States v. Booker, 543 U.S. 220 (2005). In both
his counseled brief and in a pro se supplemental brief filed with leave of court,
McElrath argues that the enhanced punishment for cocaine base as opposed to powder



      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
cocaine, embodied in the career offender Guideline, results in an improper disparity
between the Guidelines ranges for the two drugs.2

        Any argument regarding sentencing disparity based on the differing penalties
between the Guidelines ranges for powder cocaine and crack cocaine is foreclosed by
United States v. Spears, 469 F.3d 1166, 1176 (8th Cir. 2006) (en banc), petition for
cert. filed, (U.S. Mar. 2, 2007) (No. 06-9864), in which we held that neither Booker
nor 18 U.S.C. § 3553(a) authorizes district courts to reject the 100:1 ratio.
Additionally, we conclude McElrath’s sentence is not unreasonable. See United
States v. Johnson, 474 F.3d 515, 518, 522 (8th Cir. 2007) (sentence of 295 months in
prison for possession of 6 grams of cocaine base not unreasonable when court refused
to consider disparity between Guidelines penalties for distributing crack versus
powder cocaine); United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir. 2005)
(reasonableness of sentence is reviewed for abuse of discretion which may occur if (1)
court failed to consider relevant factor that should have received significant weight;
(2) court gave significant weight to improper or irrelevant factor; or (3) court
considered only appropriate factors but in weighing those factors committed clear
error of judgment).

      Accordingly, we affirm. We also deny McElrath’s pending pro se motion.
                     ______________________________




      2
        The remaining arguments in the pro se brief are not properly before us. See
United States v. Kress, 58 F.3d 370, 373 (8th Cir. 1995) (where party could have
raised issue in prior appeal but did not, court later hearing same case need not consider
matter).

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