                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2847
                                    ___________

United States of America,             *
                                      *
             Appellee,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Northern District of Iowa.
Charles Anthony Watson, also known *
as Big Country, also known as         *
Mississippi, also known as Tony,      *
                                      *
             Appellant.               *
                                 ___________

                              Submitted: January 10, 2007
                                  Filed: April 2, 2007
                                  ___________

Before MURPHY, HANSEN, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Charles Watson pleaded guilty to conspiracy to possess with intent to distribute
500 grams or more of cocaine within 1,000 feet of a protected location, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, 851 and 860 and conspiracy to carry a
firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. §§ 924(c) and
924(o). The district court1 declined to depart downward under the Guidelines and also


      1
      The Honorable Linda Reade, Chief Judge, United States District Court for the
Northern District of Iowa.
denied Watson's requests for a variance. Watson appeals, arguing that his sentence is
unreasonable because his co-defendant's sentence was substantially less. We affirm.

                                   I. Background
       Watson enlisted several associates to help him steal drugs from a rival dealer.
Watson asked Eric Sallis, Michael Bruce, and Dontay Hoosman to help him ambush
his competitor at a designated location. When they arrived, Bruce and Sallis carried
firearms, but Sallis' weapon was not loaded. During the ambush, Bruce shot and killed
one of Watson's rivals. All four men were arrested and charged with various crimes
stemming from the incident.

        Watson and Sallis pleaded guilty to conspiracy to possess with intent to
distribute 500 grams or more of cocaine within 1,000 feet of a protected location and
to conspiracy to carry a firearm in relation to a drug-trafficking crime. At sentencing,
the district court imposed a sentence of 305 months' imprisonment on Watson. Sallis,
on the other hand, was sentenced to 136 months' imprisonment. The district court
refused to grant Watson a felony-murder departure under the Guidelines. The court
also refused to grant a variance based on the disparity between Watson's and Sallis'
sentences. Watson appeals both decisions. We affirm.

                                     II. Discussion
      We review the district court's application of the Guidelines de novo and its
factual findings for clear error. United States v. Tjaden, 473 F.3d 877, 879 (8th Cir.
2007). We review the ultimate sentence for reasonableness, which is akin to the
abuse-of-discretion standard. Id.

       A sentence within the Guidelines range is presumptively reasonable. United
States v. Lincoln, 413 F.3d 716, 718 (8th Cir. 2005). However, we review the sentence
imposed for reasonableness under 18 U.S.C. § 3553(a), even if the sentence is within
the Guidelines range. United States v. Tobacco, 428 F.3d 1148, 1150–51 (8th Cir.

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2005). Whether a sentence is reasonable in light of § 3553(a) is reviewed for abuse of
discretion. United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). A
sentencing court abuses its discretion if it fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors. United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).

                             A. Felony Murder Departure
      Watson argues that the district court erred by declining to exercise its discretion
to grant him a felony-murder downward departure.2 We have repeatedly held that
when a district court is aware of its discretion to depart downward and elects not to
exercise this discretion, then that decision is unreviewable. United States v. Lee, 451
F.3d 914, 918 (8th Cir. 2006); United States v. Anderson, 446 F.3d 870, 877 (8th
Cir.2006). The record is clear, and Watson does not dispute, that the district court was
aware of its discretion. Therefore, we have no authority to review the district court's
decision.

                                 B. Sentencing Disparity
       Watson's sentence included a term of imprisonment of 305 months, while co-
defendant Sallis received a term of imprisonment of 136 months. Watson argues that
the district court should have granted him a variance, in accordance with the § 3553(a)
factors, to avoid significant sentencing disparities between equally situated offenders.3


       2
       Comment 2(B) of U.S.S.G. § 2A1.1 allows the district court to grant a
downward departure in offenses that involve a felony murder, "[i]f the defendant did
not cause the death intentionally or knowingly . . . "
       3
        While Watson's brief is unclear,we assume that he is not arguing that he is
entitled to a downward departure under the Guidelines in order to reduce the
discrepancy between his and Sallis' sentence. We have repeatedly rejected this
argument. See Anderson, 446 F.3d at 877 ("[T]he district court correctly recognized
that a sentencing disparity among co-defendants is not a proper basis for a departure

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Watson contends his sentence is unreasonable because the court did not grant such a
variance.

        Watson bases his argument upon our holding in United States v. Lazenby, 439
F.3d 928 (8th Cir. 2006). This reliance is misplaced. In Lazenby, we expressed
concern about disparate sentences among co-conspirators based upon a district court's
decision to give one defendant an 83% downward variance, while declining to give
such a variance to the other. Id. at 932. We were particularly sensitive to the fact that
the defendant who received the downward variance was the more culpable of the two.
Id. at 933.

       This case is distinguishable from Lazenby. Here, the disparate sentences derive
from different departures based upon legitimate distinctions between Sallis and
Watson, not the result of different variances. Sallis received a downward departure for
felony murder, along with reductions for acceptance of responsibility and substantial
government assistance. U.S.S.G. § 2A1.1, cmt. 2(B), 2A1.1, 5K1.1. In contrast,
Watson received several enhancements because his participation in the conspiracy
involved a handgun and was committed within 1,000 feet of a protected area. U.S.S.G.
§§ 2D1.1(b)(1), 2D1.2(a)(2). Watson received an additional enhancement after the
court determined that he was the conspiracy's leader. U.S.S.G. § 3B1.1(a).

      Further, and unlike in Lazenby, the district court found that Watson was the
more culpable of the two defendants. Watson planned the ambush and recruited Sallis.
Watson insisted that Sallis be armed. Watson conceived the ambush for his financial
gain. Watson, unlike Sallis, was aware that Bruce was armed. These distinctions


under the guidelines"); United States v. Polanco, 53 F.3d 893, 897 (8th Cir. 1995)
("Disparity between sentences imposed on codefendants is not a proper basis for
departure"); United States v. Granados, 962 F.2d 767, 774 (8th Cir. 1992) ("A
defendant cannot rely upon his co-defendant's sentence as a yardstick for his own; a
sentence is not disproportionate just because it exceeds a co-defendant's sentence").

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account for any apparent disparity in Watson's sentence. Watson does not challenge
any of the factual findings underlying his sentence. We hold that the district court did
not impose an unreasonable sentence.

                                   III. Conclusion
      For the forgoing reasons, the sentence imposed by the district court is affirmed.
                       ______________________________




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