United States Court of Appeals

For the Eighth Circuit 

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No. 23-1707

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United States of America

 Plaintiff - Appellee

v.

Vachon S. Robertson

 Defendant - Appellant

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No. 23-1708

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United States of America

 Plaintiff - Appellee

v.

Vachon S. Robertson, also known as C

 Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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Submitted: December 11, 2023

Filed: January 17, 2024

[Unpublished]

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Before GRUENDER, GRASZ, and KOBES, Circuit Judges. 

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PER CURIAM.

Vachon Robertson pleaded guilty to possessing with intent to distribute 

cocaine after a prior conviction for a felony drug offense, 21 U.S.C. §§ 841(a)(1), 

(b)(1)(C), 851. The district court1 departed up or, alternatively, varied up from his 

Guidelines range to a sentence of 46 months in prison.2

 Robertson appeals, and we 

affirm. 

Robertson has a long history of drug crimes. Some of his convictions are so 

old that they do not count toward his Guidelines criminal history category. See 

U.S.S.G. § 4A1.2(e) (setting out the “Applicable Time Period” for prior sentences 

counted as part of a defendant’s criminal history). Under the Guidelines, he had a 

criminal history category of III. The district court departed up to a criminal history 

category of IV to reflect the seriousness of his criminal history and his high risk of 

recidivism, resulting in a Guidelines range of 37 to 46 months in prison, instead of 

30 to 37 months. The court then imposed a 46-month sentence and said that even if 

it was wrong to depart, it would impose the same sentence as an upward variance 

under the 18 U.S.C. § 3553(a) factors. 

Robertson claims that the district court abused its discretion by departing up 

or varying up. See United States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir. 2011) 

(reviewing upward departure for abuse of discretion); United States v. Ridings, 75 

F.4th 902, 907 (8th Cir. 2023) (same for upward variance). 

1

The Honorable C.J. Williams, United States District Judge for the Northern 

District of Iowa. 

2

Robertson committed his offense while on supervised release. The district 

court also imposed a revocation sentence, which is not challenged on appeal.
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A district court may depart up when “reliable information indicates that the 

defendant’s criminal history category substantially under-represents the seriousness 

of [his] criminal history or the likelihood that [he] will commit other crimes.” 

U.S.S.G. § 4A1.3(a)(1). In deciding whether to depart up, the court is “free to weigh 

the similarity of past offenses to the instant offense, and the possibility that repeated 

offenses of a similar nature indicate a heightened need for deterrence.” Shillingstad, 

632 F.3d at 1037 (cleaned up) (citation omitted). Here, the court observed that the 

Guidelines did not account for several of Robertson’s old cocaine-related 

convictions, which were part of his “unending pattern of selling cocaine that has 

spanned now decades.” The court also found that he was “highly likely to reoffend” 

because he was “incorrigible in his drug dealing.” Because the record supports both 

grounds for the upward departure, the court did not abuse its discretion. See id. at 

1038; see also United States v. Green, 946 F.3d 433, 441 (8th Cir. 2019) (stating that 

“obvious incorrigibility” “weigh[s] in favor” of departing up (citations omitted)). 

What’s more, any error in departing up is harmless because the district court 

said that it would impose the same sentence as an upward variance. See United 

States v. Sitladeen, 64 F.4th 978, 990 n.4 (8th Cir. 2023). Robertson claims that the 

court overlooked how young he was when he committed his uncounted drug crimes 

and how old those convictions were. But the court did consider those things—it 

simply took the contrary yet reasonable view that they were aggravating factors

because they showed a “long history” of “victimizing other people.” His offense 

conduct was also serious, the court said, because he is not a cocaine user and so was 

exploiting other people’s addictions “for pure profit.” It was well within the court’s

discretion to vary up under the § 3553(a) factors based on Robertson’s offense 

conduct, uncounted convictions, and likelihood of reoffending. See United States v. 

Solis-Bermudez, 501 F.3d 882, 886–87 (8th Cir. 2007) (affirming 14-month upward 

variance based on defendant’s criminal history and risk of recidivism). 

We affirm the district court’s judgment.

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