     Case: 11-40307     Document: 00511683149         Page: 1     Date Filed: 12/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 2, 2011
                                     No. 11-40307
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICHARD A. BLAKE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-450-2


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Richard A. Blake appeals the 135-month sentence
imposed following his guilty plea to conspiring with others to possess with intent
to distribute 496.12 kilograms of marihuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), and 21 U.S.C. § 846. Blake contends that his sentence, which was
within the guidelines range of 135 to 168 months of imprisonment, is
unreasonable because of the sentencing disparity between his sentence and
those received by his codefendants.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40307    Document: 00511683149      Page: 2   Date Filed: 12/02/2011

                                  No. 11-40307

      The record reveals uncertainty regarding whether the argument that
Blake presents to us was properly preserved in the district court. We need not
resolve this issue, however, as the following analysis indicates that Blake cannot
prevail even under the less deferential, abuse-of-discretion standard. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). When, as in Blake’s case,
the district court imposes a sentence that is within a properly calculated
guidelines range, we apply a rebuttable presumption of reasonableness. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert denied, 130 S. Ct.
1930 (2010).
      Pursuant to 18 U.S.C. § 3553(a)(6), the sentencing court shall consider “the
need to avoid unwarranted sentence disparities among defendants with similar
record who have been found guilty of similar conduct.” In Blake’s case, the
record reflects a factor that distinguishes Blake from his codefendants: Blake’s
co-defendants cooperated with the government’s investigative efforts. In light
of their cooperation, the government’s investigative case agent promised Blake’s
co-defendants that they would not be punished based on the information that
they provided. No such promise was made to Blake. Moreover, at sentencing,
Blake agreed with the district court’s guidelines calculations, which depended
on drug quantity, and he agreed with the resulting guidelines range. Also, the
district court’s sentencing determination was based, in part, on the observation
that Blake was the leader of the organization. Leadership is an appropriate
factor for a district court to consider when imposing a sentence that results in
a disparity with the sentence of a codefendant. See Cooks, 589 F.3d at 186.
Finally, the sentencing decision reflects an individualized assessment based on
the facts of the case following consideration of the § 3553(a) factors. See Gall v.
United States, 552 U.S. 38, 49-51 (2007). Blake’s argument thus does not
overcome the presumption of reasonableness that applies to his within-
guidelines sentence. See Cooks, 589 F.3d at 186.



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  Case: 11-40307   Document: 00511683149   Page: 3   Date Filed: 12/02/2011

                              No. 11-40307

     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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