## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3018

___________ United States of America, *
* Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Marlon J. Bradford, *
* Appellee. *

___________ Submitted: April 11, 2007 Filed: August 28, 2007

___________ Before WOLLMAN, RILEY, and BENTON, Circuit Judges.

___________ WOLLMAN, Circuit Judge. This case is once again before us. In our prior ruling, we vacated Marlon J. Bradford’s sentence of 36 months’ imprisonment as unreasonable and remanded the case to the district court for resentencing. United States v. Bradford , 447 F.3d 1026, 1029 (8th Cir. 2006) (Bradford I ). On remand, the district court treated Bradford, a career criminal, as a crimin al history category I offender, and imposed a sentence of 60 months’ imprisonment—amounting to a 45% variance from the low end of the applicable guidelines range. On appeal, the government argues that the sentence is unreasonable. We vacate the sentence a nd remand to the district court for resentencing.1 Bradford did not object to the PSR’s f actual allegations, and so we accept them as true. See United States v. Wintermute , 443 F.3d 993, 1005 (8th Cir. 2006).
-2- I. Background

The facts relevant to this appeal are as follows. Bradfordpleaded guilty to one count of being a felon in po ssession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Pursuant to his plea ag reement, the government dismissed charges related to a third count of firearm posse ssion in furtherance of a drug trafficking crime.

The United States Probation Office prepar ed a presentence investigation report (PSR) detailing Bradford’s criminal history. 1 Although we described them fully in Bradford I , 447 F.3d at 1027-28, we relate some of the more notable incidents here. On February 4, 1991, when Bradford was se venteen, he was arrested and subsequently convicted of assault in the second degree fo r beating a man with a baseball bat. On January 25, 1993, when he was nineteen, he was arrested and later convicted of assault in the second degree for choking his mother, hitting her on the back of the head with a large vase, throwing her down a flight of stairs, kicking her, and striking her repeatedly with a phone. On August 27, 1993, he was arrestedand subsequently charged with third degree assault for hitting a woman’s head agains t a wall. On July 21, 1993, he fired a weapon ata police officer, which re sulted in a conviction for assault in the first degree a nd four counts of unlawful us e of a weapon. As recently as September 1, 1996, when Bradford wa s twenty-two, he struggled with police officers as they arrested his girlfriend follo wing a disturbance in a theater. During the fray, he tore the officers’ uniforms and had to be subdued with pe pper spray. For his involvement in the incident, he was arre sted and charged with disorderly conduct, trespass on private property, resisting arrest, and destruction of c ity property. Despite his extensive record of violent and unlawfu l behavior, Bradford consistently received2 Section 4B1.1(a) of the United St ates Sentencing Guidelines Manual (U.S.S.G.) designates a defendant as a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defe ndant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
-3- suspended sentences or pr obation and never once receive d a prison sentence. Based on Bradford’s criminal history, the districtcourt concluded that he was as a criminal history category VI career offender. 2The district court also concluded that Bradford’s total offense level was twen ty-five, which corresponds to a guideline sentencing range of 110 to 137 months’ imprisonment.

The district court concluded that Brad ford’s criminal history was overstated, however, because none of his prior offenses had involved drugs, because Bradford had been relatively young at the time he committe d the offenses, and because it had been nearly ten years since hi s last offense. Seeid. at 1028. As a result, the district court granted an extraordinary variance by imposi ng a thirty-six month sentence. See id. On appeal, we held that th e sentence was unreasonable, noting that the district court’s sentence was beneath even what it would have been had Bradford not had any prior offenses and been placed in a criminal history category of I. Id. at 1028-29. We held that the district court’s belief that Bradford ’s criminal history score was overstated did not support the extraordinary variance, a nd we reversed and remanded the case for resentencing. Id.

At resentencing, while explaining its decision to impose a sentence of sixty months’ imprisonment, the district court reiterated its conclusion that the sentence range recommended by the guidelines overstated Bradford’s criminal history:-4- The Court believes that Mr. Bradford ’s criminal history is overstated, and I’m looking at his relative youth, the nature and circumstances of this offense as well as the history of Mr. Bradford. He hadn’t been in trouble for a significant period of time. The last felony conviction was in ‘93. And he will be under supe rvision by The Court for a significant period of time. And I think the se ntence The Court is going to impose will reflect the seriousness of the offens e. I think that Mr. Bradford has a respect for the law in terms of the programs and activities that he’s been involved in, and that this will be adequate deterrence for any future illegal conduct and it will protect the public from any further crimes by Mr. Bradford.

. . . . I think this will be an appropriate sentence as to wh at is available. And as far as this disparity of sentences is concerned, I think that this is a reasonable sentence when one looks at the youth of Mr. Bradford when he committed his earlier offenses and the time period there. I generally do not have cases where people are in a career offender category where there is this youth involved and th is long time period between the time that they have committed another offense.

Resent. Tr. at 20-21. The district court also recognized that Bradford had been involved in volunteer programs and acted as a role model for children. Resent. Tr. at 22.

II. Discussion

We review the reasonableness of a defe ndant’s sentence for abuse of discretion. United States v. Lozano , 486 F.3d 446, 448 (8th Cir. 2007) (citing United States v. Donnelly , 475 F.3d 946, 955 (8th Cir.), cert. denied , 127 S. Ct. 2954 (2007)). “[A]n abuse of discretion may occur when (1) a court fails to consider a relevant factor that should have received significant weight; (2) a court gives significant weight to an improper or irrelevant factor; or (3) a c ourt considers only the appropriate factors but3 Bradford actually argues that the variance amounted to a 40% reduction because the district court first granted a traditional departure pursuant to U.S.S.G. § 4A1.3 that resulted in a sentencing guideline range of 100 to 125 months’ imprisonment for criminal history category V instead of the 110 to 137 months’ imprisonment at criminal history category VI. This argument mi scharacterizes the record. Nowhere in the sentencing transcri pt does the district court grant such a departure.
-5- in weighing those factors commits a clear e rror of judgment.” United States v. Haack , 403 F.3d 997, 1004 (8th Cir. 2005) (interna l quotation omitted). “We ask ‘whether the district court’s decision to grant a [18 U.S.C.] § 3553(a) variance from the appropriate guidelines range is reasonable,’ and if granti ng the variance is reasonable, then we ask whether the extent of the variance is reasonable.” United States v. Feemster , 483 F.3d 583, 586 (8th Cir. 2007) (quoting United States v. Mashek , 406 F.3d 1012, 1017 (8th Cir. 2005)). “As the size of the variance grows, so too must the reasons that warrant it.” United States v. Medearis , 451 F.3d 918, 920 (8th Cir. 2006) (citing United States v. Larrabee , 436 F.3d 890, 892 (8th Cir. 2006)). This amounts to a proportionality principle. United States v. Repking , 467 F.3d 1091, 1095 (7th Cir. 2006) (per curiam). At the principle’s extreme, extraordinary deviations from guideline recommendations require extraordinary circumstances. See Larrabee , 436 F.3d at 892 (citing United States v. Dalton , 404 F.3d 1029, 1033 (8th Cir. 2005)).

The government contends that the se ntence is unreasonable because Congress chose not to create separate classifications for career criminal offenders who commit multiple felonies at a relatively young, albe it still adult, age. In any event, the government also points out that where th e criminal history is overstated, the sentencing guidelines permit a reduction of a single criminal history category – far less than the five criminal history categories granted by the district court’s variance. Bradford maintains that the district court considered the § 3553(a) factors and that because a 45% reduction does not qualify as extraordinary, it should be accorded substantial deference. 3 We find Bradford’s argument unpersuasive.-6- Bradford first argues that the government seeks a more stringent review of the attending circumstances by improperly comparing his case with those involving “extraordinary” reductions in excess of 50% . The language of our prior decisions has indeed required extraordinary circumstances to justify reductions in excess of 50% from the guideline recommendations. See, e.g. , United States v. Meyer , 452 F.3d 998, 1001 (8th Cir. 2006) (citing decisions in wh ich departures or variances above 50% were considered extraordinary), petition for cert. filed (U.S. Nov. 27, 2006) (No. 06-8085). Nevertheless, this doe s not mean that a party can ward off the application of the proportionality principl e altogether by invoking the fact that a reduction falls short of the 50% mark. See, e.g. , United States v. Jimenez-Gutierrez , No. 06-1566, 2007 WL 1855644, at *3 (8th Cir. June 29, 2007) (treati ng a 49% downward variance similarly to those we have considered ex traordinary). Only sentences within the guidelines range have been declared to be presumptively reasonable. Cf. United States v. Beal , 463 F.3d 834, 836 (8th Cir. 2006). While the circumstances cited by a district court to justify a 45% variance may permissibly be of lesser strength than those properly associated with reductions s lightly in excess of 50%, the difference in the required strength of circumstances between such close variances is not as great as Bradford might wish. Cf. United States v. Morales-Uribe , 470 F.3d 1282, 1287-88 (8th Cir. 2006) (reversing a 44% downward variance in the case ofa non-violent firsttime offender). Viewed in another way, the variance spanned a full seven offense levels within criminal history category VI. We have elsewhere he ld that “a reduction of six guideline ranges is significant in the context of an advisory guideline system where the degree of most aggravating and mitig ating adjustments is two, three, or four offense levels.” Un ited States v. Jensen , Nos. 06-2284, 06-2497, 2007 WL 1837018, at *4 (8th Cir. June 28, 2007). Accordingly, the ostensibly moderate 45% percent variance may deceptively understate the true import of the district court’s sentencing decision.-7- Although the sentencing guidelines do not confine the scope of a post-Booker variance, the “Guidelines and the comment ary [are relevant to] our assessment of reasonableness . . . .” Beal , 463 F.3d at 837 (declaring unreasonable a variance that substantially exceeded one criminal hist ory category that was imposed on a career offender as a result of a criminal history overstatement); see also United States Sentencing Guidelines Manual (U.S.S.G.) § 4A1.3(b)(3)(A) (“The extent of a downward departure . . . for a career offender . . . may not exceed one criminal history category.”); Jimenez-Gutierrez, 2007 WL 1855644, at *5 (noting the relevance of Beal and recognizing the importance of U.S.S.G. § 4A1.3(b)(3)(A)). Section 4A1.3(b)(1) of the U.S.S.G. directly states that traditional departures “‘may be warranted’ if there is ‘reliable information’ indicating ‘that the defendant’s criminal history category substantially over-repres ents the seriousness of the defendant’s criminal history or the likelihood that th e defendant will commit other crimes.’” Beal , 463 F.3d at 836-37 (quoting U.S.S.G. § 4A1.3(b )(1)). Section 3553(a)(5) calls for the district court to consider “pertinent policy statement[s] . . . i ssued by the Sentencing Commission” in effect on the defendant’s date of sentencing. 18 U.S.C. § 3553(a)(5).

The sentencing guidelines expressly limit th e extent of a departure to a single criminal history level in those cases in wh ich the district court determines that the career offender’s criminal history is overstated. In establishing that limitation, the Sentencing Commission did not create or even acknowledge sub-tiers of career offenders based either on th e duration of time between fe lonious acts or the relative youth of the defendant when he co mmitted the prior felonies. See Beal , 463 F.3d at 837 (“While we recognize that not all careeroffenders have th e same severity of criminal conduct in their background, we also must acknowledge that Congress made the decision to not differentiate between levels of career offenders.”); cf. United States v. Maloney , 466 F.3d 663, 669 (8th Cir. 2006) (no ting that relative youth may apply to many career offenders, and that it is unlikely that district courts will uniformly adopt a particular approach ). Congressional policy also urges the imposition of a sentence at or near the maxi mum term authorized by the sentencing guidelines for the4 Bradford argues that the district court did consider each of the § 3553(a) factors. We agree with the government, how ever, that the court’s analysis of the remaining factors does not compensate fo r its improper weighting of Bradford’s history and characteristics and the relevant congressional priorities.
-8- offenses of career offenders. 28 U.S. C. § 994(h); United States v. McDonald , 461 F.3d 948, 955 (8th Cir. 2006).

Although the district court has some di scretion to find that , on balance, other factors militate against the imposition of a sentence consistent with the sentencing guidelines and the underlying congressional priorities embodied therein, the district court failed to enunciate a sufficiently strong and legitimate rationale to justify reducing Bradford’s criminal history category on an order of five times what Congress had intended to be possible. 4 In fact, instead of taking full measure of congressional priorities as reflected in the guidelines provisions governing the definition and sentencing of “career offenders,” the distri ct court replaced the concept with its own understanding of the term: “When someone th inks of a career criminal, I think they are thinking of someone who is in conti nuous activity. I understand what the statute says, but, I mean, I think there is an ability to exercise so me discretion.” Resent. Tr. at 10-11. Although it is appropriate for the di strict court to consider the nature and circumstances of the offense and the histor y and characteristics of the defendant, see § 3553(a)(1), the extent of the district c ourt’s sentence reflects an overemphasis on the relevance of these details and accords insu fficient weight to existing congressional policy and the need to minimize sentencing disparities. Accordingly, we vacate the sentence and remand the case to the districtcourt for resentencing in accordance with the views expressed in this opinion.

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