                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2935
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Nebraska.
Martin Marquez,                         *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: March 8, 2010
                                Filed: June 2, 2010
                                 ___________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

       Martin Marquez was convicted by a jury of conspiracy to distribute 50 grams
or more of methamphetamine, and sentenced to 119 months imprisonment. He
appeals, arguing that the evidence was insufficient to support his conviction and that
his sentence was unreasonable. Having jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742, this court affirms.

        Marquez's conviction was based largely on the testimony of those he sold meth
to. He attacks their credibility on appeal. Carolyn Russell and Robert Morimoto
(girlfriend and boyfriend) were his co-conspirators to distribute meth. Both agreed
to cooperate, testifying that they initially purchased meth from Marquez in "teeners
and eightballs" (1.75 grams and 3.5 grams, respectively). Russell and Morimoto then
began buying larger amounts, half-ounces (14 grams), of meth from Marquez for
$750. The largest amount they purchased was an ounce (28 grams). Morimoto
estimated that he purchased, in total, about 3 ounces (84 grams) of meth from
Marquez. Russell and Morimoto also introduced Marquez to the other cooperating
witnesses, with Russell sometimes driving Marquez to their house to sell them meth.

       Rose Daggett testified against Marquez with a cooperation agreement. She
started out getting eightballs, but moved up to getting half-ounces and ounces from
Marquez. Daggett estimated that in total, she purchased 12 to 15 ounces (336-420
grams) from Marquez. Daggett also showed law enforcement a text message from
Marquez asking if she still wanted "pizza," which she said was code for meth.

      Lewis Ellis testified against Marquez with a nonprosecution agreement. He was
introduced to Marquez by Russell and Morimoto, and started out buying quarter-
ounces or half-ounces from Marquez two to three times a week. The quantity then
increased to one ounce to two ounces each time, for about two to three months.

       Marquez argues that the evidence is not sufficient to enable a reasonable jury
to conclude that each element was proved beyond a reasonable doubt. He asserts that
the testimony of Russell, Morimoto, Daggett, and Ellis is not credible because they
benefitted from cooperating with the government, and made inconsistent statements.

      “We review de novo whether the evidence presented at trial was sufficient to
support the verdict, viewing the evidence in the light most favorable to the verdict and
giving it the benefit of all reasonable inferences.” United States v. Pruneda, 518 F.3d
597, 605 (8th Cir. 2008). “We do not weigh the evidence or assess witness credibility,
and we reverse only if no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.” Id. Here, the evidence included testimony that Marquez
worked with Russell and Morimoto to sell meth, totaling well over 50 grams. The

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jury found this testimony credible, and that determination is not ours to dispute. See
United States v. Ziesman, 409 F.3d 941, 948 (8th Cir.2005) (witness credibility is
“virtually unreviewable on appeal” (internal quotation omitted)).

       Marquez also argues that his 119-month sentence is greater than necessary to
promote the goals of 18 U.S.C. § 3553(a), and is therefore unreasonable. He contends
that because he had no prior convictions for serious violent crimes and “could not
have been a significant player in the drug distribution industry,” he should not have
been sentenced to more than the mandatory minimum of 60 months.

      The district court1 found Marquez responsible for at least 350 grams but less
than 500 grams of methamphetamine, for a Base Offense Level of 30. His prior
criminal convictions resulted in two criminal history points, and the district court
added two criminal history points pursuant to U.S. Sentencing Guideline § 4A1.19(d)
because he committed the instant offense while under a violation warrant. Marquez
thus had four criminal history points, and a total offense level of 30, making his
Guidelines range 121 to 151 months of incarceration. The district court, after
considering Marquez's two-month immigration detention, imposed a sentence of 119
months.

       “We review a sentence for reasonableness in light of the factors in 18 U.S.C.
§ 3553(a), and we reverse only if the district court abused its discretion.” United
States v. Miner, 544 F.3d 930, 932 (8th Cir. 2008) (citing Gall v. United States, 552
U.S. 38, 49-51 (2007)). “On appeal, we may presume a sentence within the properly
calculated guidelines range is reasonable.” Id. (citing Rita v. United States, 551 U.S.
338 (2007)). “A district court abuses its discretion and imposes an unreasonable
sentence when it fails to consider a relevant and significant factor, gives significant


      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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weight to an irrelevant or improper factor, or considers the appropriate factors but
commits a clear error of judgment in weighing those factors.” Id.

       Here, the district court did not abuse its discretion in sentencing Marquez to 119
months imprisonment, where the guidelines range was 121 to 151 months. It properly
considered all the § 3553(a) factors, and determined that a sentence of 119 months is
sufficient but not greater than necessary to achieve the purposes of § 3553(a). The
district court did vary downward two months from the bottom of the range. See
United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009) ("where a district court has
sentenced a defendant below the advisory guidelines range, it is nearly inconceivable
that the court abused its discretion in not varying downward still further" (internal
quotation marks omitted)). The district court heard Marquez’s arguments, noting that
most people with his criminal history category have more serious criminal histories
than his. When a court is aware of a defendant's sentencing arguments, it does not
abuse its discretion by rejecting those arguments. United States v. Roberson, 517 F.3d
990, 995 (8th Cir. 2008). See also United States v. Phelps, 536 F.3d 862, 867 (8th
Cir. 2008) (holding that the district court did not err when it listened to the defendant’s
arguments, but found them insufficient to warrant a lower sentence).

      The judgment of the district court is affirmed.
                     ______________________________




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