                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3735
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Tyrone V. Thomas,                        *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: May 17, 2006
                                  Filed: July 21, 2006
                                   ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON and COLLOTON, Circuit Judges.
                              ___________

JOHN R. GIBSON, Circuit Judge.

      Tyrone Thomas appeals from the sentence imposed after he pleaded guilty to
possessing with intent to distribute five grams or more of a mixture or substance
containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). The district court1 sentenced him to 262 months' imprisonment,
followed by eight years of supervised release. Thomas argues on appeal that his
sentence is unreasonable under the sentencing factors set out in 18 U.S.C. § 3553(a)



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
because the district court did not properly take into account his limited mental
capacity. We affirm.

       We review the district court's sentencing decision for reasonableness. United
States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). A sentence within the
advisory guidelines range is presumptively reasonable, although that presumption may
be rebutted if the sentence is inconsistent with the factors listed in 18 U.S.C. §
3553(a). United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006). We may
reverse a sentence "if the district court failed to consider a relevant factor that should
have received significant weight, gave significant weight to an improper or irrelevant
factor, or considered only appropriate factors but nevertheless committed a clear error
of judgment by imposing a sentence that lies outside of the range dictated by the facts
of the case." United States v. Walker, 439 F.3d 890, 892 (8th Cir. 2006). Thomas
argues that the district court erred under § 3553(a) by failing to provide for a sentence
that was "not greater than necessary" to achieve the goals of sentencing and that
properly took into account his "personal characteristics."

       Thomas's presentence investigation report determined that he was a career
offender with a criminal history category of VI and calculated his advisory sentencing
guidelines range to be between 262 and 327 months' imprisonment. Thomas did not
object to the report or move for a downward departure under the Sentencing
Guidelines. However, he made a motion requesting that the district court use its
discretion under United States v. Booker, 543 U.S. 220 (2005), to deviate from the
guidelines range based on the factors in § 3553(a). Thomas argued that his "marginal
intellectual functioning" was a characteristic which should be considered under §
3553(a)(1). He presented an evaluation by a psychologist who diagnosed him with
antisocial personality disorder and found him to have a full-scale IQ of 63, a verbal
IQ of 60, and a performance IQ of 74. The psychologist's report concluded that these
intellectual deficits might interfere with Thomas's judgment, but that his test results
appeared to "slightly underestimate his intellectual functioning" and that it was

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unlikely that Thomas was unable to "know or appreciate the wrongfulness of his
behavior regarding possession of the controlled substance."

       We find nothing in the record to indicate that the district court committed error
by refusing to grant the motion and sentencing Thomas at the bottom of the guidelines
range. The court understood that the guidelines were advisory and that it should
fashion a sentence by reference to the factors listed in § 3553(a). The court discussed
the psychologist's report with counsel and carefully considered whether Thomas's
mental capacity warranted a lower sentence in light of those statutory factors.
However, the court determined that in light of the nature of the offense, Thomas's
history and characteristics, as well as the statutory goals of sentencing, including
protecting the public, a sentence within the guidelines range was appropriate. Because
Thomas has failed to overcome the presumption that his sentence was reasonable, we
affirm the judgment of the district court.
                               ______________________________




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