                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2804
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Arkansas.
Celeste Akers,                         *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: December 7, 2006
                                Filed: February 9, 2007
                                 ___________

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

BYE, Circuit Judge.

      Celeste Akers, a former federal corrections officer, pleaded guilty to smuggling
powder cocaine into a Bureau of Prisons (BOP) correctional facility in violation of 18
U.S.C. § 1791. The U. S. Sentencing Guidelines (U.S.S.G.) advisory sentencing range
was 46-57 months and the district court1 sentenced her to 46 months incarceration.
On appeal, Akers argues the sentence is unreasonable. We affirm.




      1
       The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
                                          I

       Akers was employed from May 2001 until June 2005 as a federal corrections
officer at a BOP facility in Forrest City, Arkansas. In late 2004, the Office of the
Inspector General for the Department of Justice began an investigation into reports of
drug smuggling at the facility. The investigation revealed inmate Terrell Guy was
communicating with Akers via a cellular telephone that had been smuggled into the
facility. Telephone records documented between 350-400 calls between the cellular
telephone and telephone numbers associated with Akers. When interviewed, Guy
admitted contacting her in connection with a drug smuggling scheme and that she had
on three occasions provided him with one pound of marijuana and on another occasion
delivered one pound of marijuana and one ounce of powder cocaine. A second
inmate, Ricky McNeal, was also implicated in the scheme and confirmed Akers had
smuggled marijuana and cocaine into the facility. Both Guy and McNeal also told
investigators they had engaged in sexual acts with her while she was a corrections
officer at the facility.

       Further investigation revealed Eboni Shaw, an acquaintance of McNeal's,
assisted in the smuggling operation. According to Shaw, she met with Akers on three
occasions and each time provided her with one pound of marijuana. Shaw stated she
met with Akers a fourth time and provided her with one pound of marijuana and one
ounce of powder cocaine. Shaw stated she paid Akers $1000 each time to deliver the
drugs to Guy.2

      When confronted with telephone records detailing her contacts with Guy, Akers
denied any knowledge of the calls. She was later charged in a nine-count indictment

      2
        On appeal, Akers denies she was paid $4000 or that she engaged in sexual
relations with Guy or McNeal. She did not, however, object to these facts in the
Presentence Investigation Report (PSI) and they are deemed admitted. See United
States v. Cullen, 432 F.3d 903, 905 (8th Cir. 2006).

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with four counts of introducing controlled substances into a federal correctional
facility in violation of 18 U.S.C. § 1791(a)(1), four counts of accepting
a bribe as a public official in violation of 18 U.S.C. § 201(b)(2)(C), and one count of
making a false statement to federal investigators in violation of 18 U.S.C.
§ 1001(a)(2). She entered into a plea agreement with the government, agreeing to
plead guilty to one count of smuggling powder cocaine into a federal correctional
facility. In return, the government dismissed the remaining counts.

       Section 2P1.2 of the U.S.S.G. (Providing or Possessing Contraband in Prison)
requires the application of a cross-reference to § 2D1.1 when the defendant is
convicted under 18 U.S.C. § 1791(a)(1) and subject to punishment under 18 U.S.C.
§ 1791(b)(1). Applying these sections, the district court calculated her base offense
level at 26 and awarded her a three-level reduction for acceptance of responsibility.
She had no prior criminal history and her adjusted offense level of 23 resulted in a
Guidelines sentencing range of 46-57 months, and she does not dispute the district
court's Guidelines calculations.

      Akers offered no objections to the PSI but submitted a sentencing memoranda
arguing the district court should vary downward from the Guidelines sentencing range
based on mitigating factors and the unfair sentencing disparity between her Guidelines
sentencing range and similarly situated defendants or defendants guilty of more
serious offenses. After considering her arguments, the district court stated:

             For the record the court recognizes that the federal sentencing
      guidelines are not mandatory but advisory only. The court notes the
      following factors in this action that implicates or implicate the
      guidelines. First of all, given the fact the government has moved for a
      third level of credit, her total offense level is 23, her criminal history
      category is I. The term of imprisonment, a minimum of 46 months,
      maximum 57 months, supervised release not to exceed three years.



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             The court also notes for the record that in determining the sanction
      to be imposed in this matter the court has considered the nature and the
      circumstances of this offense. It was most disturbing given the fact that
      here she was working for the federal government, a prison facility where
      there are many defendants who need constructive assistance, and here
      she allegedly was a religious individual, served as a source for supplying
      drugs to defendants.

             According to the record she made thousands of dollars or at least
      she received thousands of dollars regarding this drug activity. In
      addition the court has considered the following factors. The need to
      reflect the seriousness of the offense, to promote respect for the law, and
      to provide just punishment for the offense and the need to send a
      message to others in society who might be inclined to indulge in similar
      activity, the need to show those defendants that you supplied drugs to
      who were serving time. That’s another need.

             The need to protect the public from further crimes of the
      defendant, the need to provide the defendant with needed medical care
      or other correctional treatment in a most effective manner, and the need
      to afford her an opportunity to enhance her judgment, educational skills,
      as well as vocational skills.

              ...

             I will not grant your lawyer’s request that I recommend that you
      be permitted to participate in a boot camp matter. I want them to select
      a facility where you can get this mental health treatment and any other
      assistance that you need to deal with any problems that you may have,
      as well as an opportunity to enhance your vocational skills.
Sent. Tr. at 5-7.

      Thereafter, the district court sentenced Akers to 46 months incarceration. On
appeal, she now argues the 46-month sentence is unreasonable. She contends the
sentence creates an unreasonable disparity between defendants convicted of
smuggling drugs into correctional facilities versus defendants convicted of selling

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drugs "on the street." She further contends § 2P1.2 creates an unreasonable
sentencing disparity because it treats defendants who smuggle drugs into a
correctional facility more harshly than defendants who smuggle firearms or
destructive devices into such facilities. Next, she argues her sentence is unreasonable
because the district court did not accord proper weight to various mitigating factors.
Finally, she contends the Eighth Circuit's presumption of reasonableness accorded to
"within Guidelines sentences" is improper.

                                          II

       We review the district court's application of the Guidelines de novo, United
States v. Fogg, 409 F.3d 1022, 1026 (8th Cir. 2005), and the reasonableness of the
sentence for an abuse of discretion, United States v. Haack, 403 F.3d 997, 1003 (8th.
Cir.), cert. denied, 126 S. Ct. 276 (2005).

A.    Sentencing Disparities

        Akers contends the application of § 2P1.2 creates an unreasonable sentencing
disparity between defendants convicted of smuggling drugs into federal correctional
facilities and defendants convicted of selling like quantities of drugs on the street.
According to her, a defendant convicted of smuggling drugs into a federal correctional
facility is treated four times more harshly than a defendant convicted of selling the
same quantity of drugs on the street.

      The premise underlying Akers's "disparate treatment" argument is it is
unreasonable to treat similarly situated defendants differently. Clearly, however, such
defendants are not, in all relevant respects, similarly situated. Two defendants may
be convicted of selling/delivering like quantities of drugs, but a defendant who
smuggles drugs into a federal correctional facility – especially one who is a federal
corrections officer – is guilty of conduct markedly different from selling drugs on the

                                         -5-
street. Drug dealing, in all its forms, creates a serious risk of potential harm to
individuals and society. When it involves smuggling drugs into a correctional facility,
however, additional and unique risks of harm to inmates and corrections staff arise.
For obvious reasons, the ability to control inmates and maintain order in a correctional
facility is detrimentally affected when prisoners use illegal drugs. Additionally, when
a corrections officer facilitates drug smuggling it negatively impacts the perception
inmates and society have of corrections staff and the correctional system – thus
undermining its overall ability to function effectively. Additionally, the disparity in
this case between the two kinds of conduct is magnified by Akers's sexual relationship
with the two inmates. Accordingly, we conclude the district court properly calculated
the advisory Guidelines sentencing range under § 2P1.2. We further find the district
court did not act unreasonably when it concluded Akers's conduct was more egregious
than that of a dealer of drugs on the street.

      Akers next contends § 2P1.2 is unreasonable because it treats defendants
convicted of smuggling drugs into a federal correctional facility more harshly than
defendants convicted of smuggling firearms or destructive devices into such facilities.

       Under § 2P1.2 the base offense level for a defendant convicted of smuggling
a firearm or destructive device into a federal correctional facility is 23. If the
defendant is a corrections officer, the base offense level is increased two levels. Thus,
had Akers been guilty of smuggling a firearm into the facility her base offense level
would have been 25 instead of 26. According to her, smuggling firearms into prison
is much more serious than smuggling drugs and inasmuch as § 2P1.2 treats the latter
more harshly, its application renders her sentence presumptively unreasonable.

      District courts are not authorized to alter the Guidelines, United States v.
Spears, 469 F.3d 1166, 1176 (8th Cir. 2006) (en banc), and must, when determining
a reasonable sentence, properly calculate the advisory sentencing range under the
Guidelines, see Haack, 403 F.3d at 1002-03. Here the district court acted reasonably

                                          -6-
when it correctly applied § 2P1.2 and accurately calculated Akers's advisory
Guidelines sentencing range.

B.    Mitigating Factors

       Akers next contends the district court did not afford sufficient weight to several
factors which mitigate in favor of a more lenient sentence. For example, she had no
history of prior crimes, had a strong employment record, was the sole source of
emotional and financial support for her twelve-year-old son, presented a negligible
risk of reoffending, had no history of illegal drug use, and the offense constituted
aberrant behavior for someone who had otherwise lived a law abiding life.

       The record demonstrates Akers presented these arguments to the district court
in a sentencing memorandum and again at the sentencing hearing. The record further
demonstrates the district court considered her crimes to be most serious. Of particular
note, the court was disturbed by the fact she occupied a position of trust as a
correctional officer while supplying illegal drugs to inmates over whom she exercised
authority. The court also noted she was paid thousands of dollars for her illegal
activities. Before imposing sentence, the district court considered the sentencing
factors contained in 18 U.S.C. § 3553(a) and concluded the 46-month sentence was
necessary to 1) reflect the seriousness of the offense, 2) promote respect for the law,
3) provide just punishment and send a message to other defendants and inmates, 4)
protect the public, and 5) provide her with necessary medical or other treatment in the
most effective manner. Accordingly, it is apparent the district court considered but
rejected her arguments because it believed a lower sentence would not adequately
reflect the goals of sentencing set forth in § 3553(a). Nothing in her arguments
convinces us the district court failed to consider a relevant factor which should have
received significant weight, gave significant weight to an improper or irrelevant
factor, or otherwise committed a clear error of judgment. Haack, 403 F.3d at 1004.



                                          -7-
D.    Presumption of Reasonableness

      Akers's final argument is the presumption of reasonableness accorded to
sentences within the Guideline range is erroneous.

       This court, as well as others, has repeatedly stated that sentences within the
advisory Guidelines range are presumptively reasonable. See, e.g., United States v.
Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005). Other circuits have rejected the
presumption in the belief it overemphasizes the role the advisory Guidelines play in
sentencing and runs the risk of creating a de facto mandatory sentencing scheme. See,
e.g., United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc),
United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005), United States v. Cooper,
437 F.3d 324, 331-32 (3d Cir. 2006), United States v. Webb, 403 F.3d 373, 385 n.9
(6th Cir. 2005), United States v. Diaz-Argueta, 447 F.3d 1167, 1171-72 (9th Cir.
2006). We do not, however, draw upon a presumption of reasonableness afforded to
within Guidelines sentences to affirm Akers's sentence. As noted above, the district
court properly considered and balanced the relevant sentencing factors and arrived at
a sentence that is not unreasonable.

                                         III

      The judgment of the district court is affirmed.
                     ______________________________




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