## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 23

- 1707

___________________________
United States of America

Plaintiff - Appellee

v.

Vachon S. Robertson

Defendant - Appellant

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No. 23

- 1708

___________________________
United States of America

Plaintiff - Appellee

v.

Vachon S. Robertson, also known as C

Defendant - Appellant

____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

____________
Submitted: December 11, 2023 Filed: January 17, 2024 [Unpublished]

____________-2- 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 court 1 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. T he 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 s entence and s aid 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

.

R obertson claims that the district court abused its discretion by departing up

or va rying up. See United States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir. 2011) ( review ing 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 State s 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.-3- A district court may depart up when “reliable information indicates that the
de f endant’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, t he 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
“o bvious incorrigibility ” “ weigh[s] in favor ” of departing up (citations omitted) ).

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

s aid that it would impose the same sentence as an upward variance . S ee 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 un counted 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 hi story” of “victimizing other people .” H is 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, un counted con victions

, 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 )

.

W e affirm the district court’s judgment.

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