                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-3327
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Lloyd Thomas Patterson,                  *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: March 18, 2011
                                 Filed: June 6, 2011
                                  ___________

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
                         ___________

PER CURIAM.

      Lloyd Patterson pleaded guilty to conspiring to steal, receive, and possess
goods stolen from interstate shipments. The district court1 varied upward from the
guidelines range and sentenced him to 45 months’ imprisonment. He appeals,
contending that the district court erred by relying on a misleading statement regarding
the amount of property at issue and by failing to explain adequately its decision to
vary upward. He also contends that the district court abused its discretion by giving


      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
him a substantially greater sentence than two co-conspirators who were equally
culpable. We affirm.

       Lloyd Patterson worked at McFarland Trucking in Austin, Minnesota, from
2000 to 2007, and his brother James worked there from 1999 to 2007. Lloyd and
James both drove routes that took loads from a freezer plant in East Dubuque, Illinois,
to locations throughout Illinois and surrounding states. Their loads were primarily
fresh and frozen meat products, though they hauled dry goods as well. At times a
given load would be short or certain products would be damaged in the loading
process. When a load was “shorted” or contained damaged product, the McFarland
driver responsible for the delivery would call the dispatcher of Farmland Foods, the
original producer, to explain that his load had been shorted or to provide the product
numbers of packages that had been damaged. He would then receive a claim number
in return. If the damaged product remained fit for consumption, but not for sale, the
producer would instruct the driver to take it to a local food pantry or other worthy
recipient.

       James learned of this practice in 2005 when portions of his load were damaged.
He followed the procedure except that, rather than donate the damaged product, he
would keep it or give to friends. On other occasions, he sold the damaged product
to third parties and kept the profit. James informed Lloyd of what he had done, and
Lloyd hit upon the idea that would give rise to the ensuing conspiracy: he and James
would fraudulently report that portions of their load had been damaged or “shorted,”
then sell the undamaged product to third parties. Over the course of the conspiracy,
James and Lloyd proceeded to appropriate nearly $190,000 of frozen meat products
and other assorted dry goods in this manner.

      Lloyd’s role entailed filing false reports with the producers whose products he
was charged with delivering and unloading goods into a conversion van that James
and his wife Patricia used to transport the goods to third-party buyers. On occasion

                                         -2-
James and Patricia’s minor daughters would help Lloyd transfer products from his
semi-trailer to the conversion van. James and Patricia developed a customer base for
the products and handled their delivery. Though Lloyd did not sell any of the product
himself, he earned a portion of the profits from the illegal sales.

       Farmland Foods grew suspicious of the substantial losses it had experienced
from the freezer plant in Illinois. In September 2007, it hired an investigator who
ferreted out the Pattersons’ scheme. James, Lloyd, Patricia, and a number of
individuals who routinely bought products from them came under federal
investigation. James cooperated with authorities and received a sentence of 27
months’ imprisonment. Lloyd waived indictment and pleaded guilty to conspiracy
to commit theft by fraud of interstate shipments, in violation of 18 U.S.C. § 371. The
district court ordered that a presentence investigative report (PSR) be prepared, the
results of which the government contested. It argued that Lloyd was an organizer or
leader of criminal activity that involved five or more individuals and therefore should
be subject to a four-level enhancement under U.S. Sentencing Guidelines Manual
§ 3B1.1(a). In support, it called a deputy sheriff who testified that in 2006
approximately $33,000 of stolen goods came from Lloyd’s loads and approximately
$11,000 from James’s loads. The government also argued that Lloyd should be
subject to a two-level enhancement under § 3B1.4 of the Guidelines because he
enlisted minors—James and Patricia’s daughters—to assist him in unloading
appropriated goods from his trailer.

       The district court did not impose the government’s proposed enhancements, but
noted that evidence marshaled in support of the government’s position “will be taken
into consideration in other adjustments during the course of this proceeding.” Sent.
Tr. at 45-46. The district court ultimately concluded that Lloyd had a total offense
level of 18 and criminal history category of I, resulting in an advisory guidelines
range of 27 to 33 months’ imprisonment. The government contended that an upward
variance was justified in light of Lloyd’s intransigence over the course of the

                                         -3-
investigation, his use of minors in unloading stolen products, and his role in
formulating the scheme in the first place. It also asserted that Lloyd had made no
effort to pay restitution up to that point and had a history of violence and domestic
abuse that was under-represented in the guidelines calculation. Lloyd’s counsel
countered that Lloyd had played a limited role in the conspiracy and should not be
subject to a penalty greater than what James had received.

       As recounted earlier, the district court varied upward from the guidelines range
and imposed a sentence of 45 months’ imprisonment. It emphasized evidence
showing that the conspiracy began as Lloyd’s idea and evidence that he had involved
minor children and profited from their labor. It also concluded that the upward
variance was appropriate because more product was stolen from his truck than from
his brother’s and because he had made no restitution prior to sentencing.

       We review sentences for abuse of discretion. United States v. Zastrow, 534
F.3d 854, 855 (8th Cir. 2008). We undertake a two-part inquiry. First, we ensure that
the district court “did not commit significant procedural error, such as miscalculating
the Guidelines range, treating the Guidelines as mandatory, failing to consider §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain why a sentence was chosen.” Id. (citation omitted). If the
decision is procedurally sound, we next consider the substantive reasonableness of
the sentence imposed. Id.

       Lloyd claims that the district court committed procedural error by relying on
what Lloyd characterizes as “misleading facts” to support its upward variance and by
failing to explain adequately the basis for its variance. He refers to the deputy
sheriff’s testimony to the effect that product stolen from Lloyd’s loads exceeded
product stolen from James’s loads by a ratio of three to one. Though an earlier
question makes clear that the witness was referring to 2006, not the duration of the
conspiracy, Lloyd maintains that the district court understood that the three-to-one

                                         -4-
ratio applied for the conspiracy as a whole and contends that the district court relied
on this erroneous “fact” in sentencing. There is no evidence supporting Lloyd’s
theory that the district court relied on the three-to-one ratio when conducting its
sentencing analysis. The district court commented that “more meat was stolen from
[Lloyd’s] loads than from Mr. James Patterson’s loads.” Sent. Tr. at 69. As Lloyd
himself concedes, this comment states an undisputed fact: more than $100,000 of
product was stolen from his loads, compared to roughly $73,000 from James’s loads.
Accordingly, we find meritless Lloyd’s claim that the district court relied on
misleading facts.

       The assertion that the district court inadequately explained the basis for its
upward variance likewise fails. Though the district court declined to adopt the
government’s guidelines enhancements regarding Lloyd’s leadership role and his
choice to involve minors in unloading stolen goods, it commented that it intended to
account for both factors of Lloyd’s offense conduct when determining its final
sentence. The court thereafter stressed both factors in explaining its sentence and
also emphasized that Lloyd had initiated the scheme and had failed to pay any
restitution. The district court thus considered the relevant § 3553(a) factors and
provided “ample explanation of its rationale for the sentence imposed.” United States
v. Hill, 552 F.3d 686, 691 (8th Cir. 2009). Accordingly, it did not commit procedural
error in imposing the sentence.

       Lloyd also claims that the district court abused its discretion by imposing a
sentence substantially greater than that imposed upon his co-conspirators. In cases
where the sentence falls outside the guidelines range, we must “give due deference
to the district court’s decision that the 3553(a) factors, on the whole, justify the extent
of the variance.” United States v. Gall, 552 U.S. 38, 51 (2007). That we “might
reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Id.



                                           -5-
       Lloyd maintains that he and James were equally culpable members of the
conspiracy and that he should receive a sentence no greater than the 27 months that
James received. He stresses that it was originally James who began selling damaged
goods to third parties; that the meat products were unloaded and stored on James’s
property; that James and Patricia found the customers and delivered the goods; and
that he did not profit nearly as much as James and Patricia did.

       We have previously held that “it is not an abuse of discretion for a district court
to impose a sentence that results in a disparity between co-defendants when there are
‘legitimate distinctions’ between the co-defendants.” United States v. Davis-Bey, 605
F.3d 479, 483 (8th Cir. 2010) (quotation omitted). Lloyd claims that no legitimate
distinctions exist between himself and his brother James and that the upward variance
he received is therefore substantively unreasonable. We disagree. The record
indicates that the scheme originated with Lloyd, that more meat was stolen from his
loads than his brother’s, that he did not cooperate with authorities nor apologize to
the companies from which he stole (as did James), and that he failed to pay restitution
prior to the sentencing hearing.

       The district court presided over the sentencing of co-conspirators James and
Patricia Patterson, as well as the trial of a co-conspirator who had made numerous
purchases of stolen goods from them. It made explicit reference to the facts that
James had cooperated “extensively” and had done so “from very early on” in the
investigation. Sent. Tr. at 50. The difference in the extent of cooperation, as well as
the amount of meat taken from the brothers’ respective loads, are legitimate grounds
of distinction that could reasonably justify disparate sentences. Accordingly, we
conclude that the district court did not abuse its discretion in varying upward when
sentencing Lloyd and that its sentence was substantively reasonable.2


      2
        We have considered Lloyd’s pro se motion and conclude that it presents no
issue relevant to this appeal.

                                           -6-
The sentence is affirmed.
                ______________________________




                            -7-
