                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2223
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Adam Alan Anderson

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                            Submitted: April 13, 2018
                              Filed: August 7, 2018
                                  [Unpublished]
                                  ____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
                             ____________

PER CURIAM.

      During a traffic stop in Nokay Lake, Minnesota, officers found two ounces of
methamphetamine taped to Zachary Flannigan, a computer in Adam Anderson’s
backpack, $9,571 in cash, and a digital scale. A warrant search of an apartment
rented by Anderson in Ogilvie, Minnesota, yielded 1,238 grams of methamphetamine,
glass pipes with residue, syringes, and a loaded semi-automatic pistol in a safe.
Anderson and Flannigan were charged with conspiracy to distribute 50 grams or more
of actual methamphetamine. Anderson was also charged with being a felon in
possession of a firearm. Anderson pleaded guilty to conspiracy to distribute .5-1.5
kilograms of actual methamphetamine; the government dismissed the felon in
possession charge. The district court1 sentenced Anderson to 240 months in prison.
He appeals the sentence. We affirm.

        In the plea agreement, the parties disagreed whether a two-level enhancement
for possession of a firearm should apply. They agreed that Anderson’s criminal
history category was likely VI, resulting in an advisory guidelines sentencing range
of 235 to 293 months if the firearm enhancement applied, and 188 to 235 months if
it did not. The Presentence Investigation Report (PSR) stated that Anderson had ten
prior felony and at least twelve prior misdemeanor convictions. At sentencing, the
district court found that the firearm enhancement applied but a contested role-in-the-
offense enhancement did not, resulting in an advisory range of 235 to 293 months
imprisonment. In imposing the 240-month sentence, the district court explained:

             The guideline range in your case is appropriate. . . . You’ve
      earned the Category 6 Criminal History multiple times over. You’ve got
      about twice as many criminal history points as you would have to be in
      that [category] . . . . The criminal behavior that’s led to this point started
      so early and has been so persistent and is partly drug related and partly
      not drug related.

            [T]he sentence has to reflect not only you personally . . . why you
      have developed and maintained such an active disregard for lawful
      behavior, but also the sentences that are given to people who are
      somewhat comparable . . . . [Y]ou should really get a sentence towards
      the upper end of that range to put you in a comparable position of other
      people who have . . . blow[n] the lid off the criminal history and the drug

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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      amounts [which] are so extreme. I’m going to give you a sentence that
      is toward the bottom though because it’s a long time.

       Flannigan also pleaded guilty to the methamphetamine conspiracy charge.
Flannigan was sentenced by Judge Ericksen to 169 months imprisonment after
Anderson was sentenced. Flannigan’s PSR stated that the Probation Officer did not
apply an enhancement for the firearm found in Anderson’s apartment because “the
firearm did not belong to Flannigan, and this officer has no further information [he]
possessed any firearm during the instant offense.” The PSR recommended an
advisory guidelines range of 188 to 235 months imprisonment.

       On appeal, Anderson first argues the gun enhancement “was equally applicable
to Mr. Flannigan” and therefore the district court created an unwarranted sentencing
disparity when it did not apply the same guidelines range to similarly situated
codefendants. This contention is without merit. Anderson does not argue the district
court clearly erred in applying the firearm enhancement in determining his guidelines
range. Lacking a full sentencing record, he has no basis to challenge the range
determined at Flannigan’s later sentencing. In sentencing Anderson, the district court
explicitly took into account the unwarranted disparity factor in 18 U.S.C.
§ 3553(a)(6), properly comparing Anderson to other defendants who had a similarly
deplorable criminal history and were guilty of distributing substantial quantities of
methamphetamine. “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. Johnson, 688 F.3d 444, 448
(8th Cir. 2012) (quotation omitted), cert. denied, 568 U.S. 1256 (2013). In this case,
the gun enhancement alone was a substantial “legitimate distinction” between
Anderson and Flannigan.

      Anderson next argues, submitting the issue under Anders v. California, 386
U.S. 738 (1967), that guidelines provisions that give the actual methamphetamine

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amount a higher base offense level “than the mixture amount on which it was based”
are excessive, are not supported by empirical research, and create an unwarranted
sentencing disparity. “[D]istrict courts are entitled to reject and vary categorically
from [particular] Guidelines based on a policy disagreement with those Guidelines.”
Spears v. United States, 555 U.S. 261, 265-66 (2009). Thus, this argument was
properly made to the district court. “But it is not properly made to this court because
our appellate role is limited to determining the substantive reasonableness of a
specific sentence.” United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010)
(quotation omitted). Here, the district court imposed a carefully considered sentence
that is within the advisory guidelines range. The sentence is not substantively
unreasonable.

      The judgment of the district court is affirmed.
                     ______________________________




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