                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-3489
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
Keith A. Jones,                          *
                                         *      [UNPUBLISHED]
            Appellant.                   *

                               ________________

                              Submitted: February 14, 2008
                                  Filed: May 1, 2008
                               ________________

Before MELLOY, BOWMAN and GRUENDER, Circuit Judges.
                      ________________

PER CURIAM.

      This case is before us on remand from the United States Supreme Court for
reconsideration in light of Kimbrough v. United States, 552 U.S. ---, 128 S. Ct. 558
(2007). After reconsidering Keith A. Jones’s sentence as directed by the Supreme
Court, we find that the district court1 did not commit the procedural error identified
in Kimbrough when it sentenced Jones. We again affirm.2

       In Kimbrough, the Supreme Court rejected the position that the crack/powder
disparity in the sentencing guidelines was mandatory and held that “under [United
States v. Booker, 543 U.S. 220 (2005)], the cocaine Guidelines, like all other
Guidelines, are advisory only.” Kimbrough, 128 S. Ct. at 564. After holding that a
district court “may consider the disparity between the Guidelines’ treatment of crack
and powder cocaine offenses,” id., it further elaborated that “[i]t would not be an
abuse of discretion for a district court to conclude when sentencing a particular
defendant that the crack/powder disparity yields a sentence ‘greater than necessary’
to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 575.

       In our previous Jones opinion, we first expressed doubt that the crack/powder
disparity was a relevant sentencing factor under 18 U.S.C. § 3553(a). Jones, 493 F.3d
at 941. Kimbrough held to the contrary. Kimbrough, 128 S. Ct. at 564. However, in
our initial Jones opinion, we then presumed that the crack/powder disparity was a
relevant factor and determined that the district court considered and rejected Jones’s
argument for a variance on that basis because it was not warranted in this case. This
alternative holding adheres to Kimbrough’s holding that a district court may consider
the crack/powder disparity when sentencing a defendant. Id.




      1
       The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
      2
       We reinstate the vacated opinion of United States v. Jones, 493 F.3d 938, 941
(8th Cir. 2007), vacated, 552 U.S. ---, 128 S. Ct. 928 (2008), with the exception of the
paragraph discussing the propriety of a variance based on the disparity created by the
United States Sentencing Guidelines’ use of a 100:1 ratio between crack and powder
cocaine.

                                          -2-
       As in our recent United States v. Moore decision, the district court “did not state
it had no discretion under Booker to take the crack/powder guidelines disparity into
account in deciding whether a variance was warranted by the discretionary § 3553(a)
factors.” 518 F.3d 577, 580 (8th Cir. 2008). Instead, the district court considered
both parties’ arguments regarding various § 3553(a) factors, including Jones’s
argument about the crack/powder disparity, and concluded that a sentence of 140
months’ imprisonment, ten months above the low end of the advisory guidelines
range, was appropriate. Because the district court did not indicate that it lacked
authority to consider the crack/powder disparity when imposing Jones’s sentence, “we
presume the district court was aware that Booker granted it discretion to vary
downward based upon the impact of the crack cocaine guidelines on this defendant,
but elected not to exercise that discretion.” See id.3

      Finding no procedural error and no abuse of substantial discretion, see Gall v.
United States, 552 U.S. ---, 128 S. Ct. 586, 597 (2007), for the reasons stated in this
opinion and our prior opinion, we affirm Jones’s sentence.
                       ______________________________




      3
         As in Moore, we note that Jones’s sentencing hearing occurred before this
circuit issued an en banc decision rejecting a downward variance based solely on a
district court’s categorical rejection of the 100:1 ratio, see United States v. Spears, 469
F.3d 1166 (8th Cir. 2006) (en banc), vacated, 552 U.S. ---, 128 S. Ct. 858 (2008), at
a time when there was no circuit precedent that prevented a district court from
considering the crack/powder disparity when determining whether a variance under
the § 3553(a) factors was appropriate. Moore, 518 F.3d at 580.

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