## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-2836

___________ United States of America, * * Appeal from the United States Plaintiff - Appellee, * District Court for the * Eastern District of Missouri. v. *
* Dan Kendall, * * Defendant - Appellant. *

___________ Submitted: February 17, 2006 Filed: May 2, 2006

___________ Before BYE, HEANEY, and MELLOY, Circuit Judges.

___________ BYE, Circuit Judge.
Dan Kendall appeals his sentence by argui ng both the district court improperly failed to apply the correct guidelines and the sentence is unreasonable. We reverse and remand for resentencing.

I
Kendall pleaded guilty to knowingl y possessing equipment, chemicals, products, and materials used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6). He was originally sentenced to eighty-four months imprisonment1 Since then the court, sitting en banc, reconsidered McCalland held the felony crime of driving while intoxicated can be a crime of violence. SeeUnited States v. McCall , 439 F.3d 967 (8th Cir. 2006) (en banc). It is unclear from the state of the record before us whether Kendall’s fel ony conviction for driving while intoxicated qualifies as such. SeeMcCall , 439 F.3d 967 (distinguishi ng between driving and operating a motor vehicle, no ting the Supreme Court of Missouri has construed the Missouri DWI statutory term “operates” to include both driving a vehicle and merely causing the vehicle to function by starting its engine, the latter of which does not risk physical harm to others).
-2- under the United States Sentencing Guidelines (U.S.S.G.) based on his Career Offender status. His Career Offender desi gnation was based on a prior conviction for distribution of methamphetamine and a prior felony conviction for driving while intoxicated.
Kendall previously appealed the application and constitutionality of the sentence. After his first sentencing, we decided United States v. Walker , 393 F.3d 819 (8th Cir. 2005), and United States v. McCall , 397 F.3d 1029 (8th Cir. 2005), which held the crime driving while intoxicatedwas not a crime of violence—and thus Kendall did not qualify as a career offender under U.S.S.G. § 4B1.1. 1 We remanded for resentencing. On remand, Kendall received the same sentence, eighty-four months. Kendall appeals.

II
We review a decision to depart upwar d under the advisory guidelines for an abuse of discretion. United States v. Mashek , 406 F.3d 1012, 1017 (8th Cir. 2005). The ultimate sentence is reviewed for r easonableness. United States v. Booker , 125 S.Ct. 767 (2005). We have likened post-Booker reasonableness review to the abuse of discretion standard of revi ew. United States v. Rogers , 423 F.3d 823, 829 (8th Cir. 2005).-3- A
Kendall first argues the district court improperly failed to determine whether a traditional departure was available under U.S.S.G. § 4A1.3. He argues the district court circumvented the policy of calcu lating whether an upward departure was warranted under § 4A1.3 by instead vary ing upwards based on 18 U.S.C. § 3553(a). SeeUnited States v. Haack , 403 F.3d 997, 1002-1003 (8th Cir. 2005) (“[T]he sentencing court must first determine the appropriate guidelines sentencing range, . . . Once the applicable range is determin ed, the court should then decide if a traditional departure is appropriate under Part K and/or § 4A1.3 of the Federal Sentencing Guidelines. Those considerations will result in a ‘guidelines sentence.’ Once the guidelines sentence is determined, the court shall then consider all other factors set forth in § 3553(a) to determin e whether to impose the sentence under the guidelines or a non-guidelines sentence.”).
Kendall’s argument is without merit. Kendall cites no authority for the proposition a sentencing court is not entitle d to vary upwards under § 3553(a) despite failing to depart upwards under § 4A1.3. Cf. United States v. Shannon , 414 F.3d 921, 923 (8th Cir. 2005) (“Since Booker , we have explained that in imposing sentence under the new regime, a district court should determine the advisory guideline sentencing range, . . . [including] any appr opriate departures from the guidelines. . . . [and] also may vary from the advisory gui deline range based on th e factors set forth in § 3553(a), so long as such a variance is reasonable.” (citations omitted)).

B
Kendall next argues his sentence was unreasonable under § 3553(a). He notes the advisory range was twenty-seven to th irty-three months given his total offense level of twelve with, assuming he is not a career offender, his elev en criminal history points and thus criminal history category V. Nonetheless, he was sentenced to eighty--4- four months, an increase of 155%, or more than eight offense levels, from the maximum guidelines range. This in crease is “extraordinary.” SeeUnited States v. Enriquez , 205 F.3d 345, 348 (8th Cir.2000) (observing a fifty percent downward departure was an “extraordinary” sentence reduction) (cited in, e.g., United States v. Saenz , 428 F.3d 1159, 1162 (8th Cir. 2005)).
An extraordinary departure “must be supported by extraordinary circumstances.” United States v. Dalton , 404 F.3d 1029, 1033 (8th Cir. 2005). The district court focused on the seriousness of methamphetamine manufacture and Kendall’s criminal record in varying upwar ds. To the extent the district court discussed the seriousness of methamphetami ne manufacture, there is nothing which sets Kendall’s case apart from any other me thamphetamine case. Moreover, as the district court noted, he was “low on the chain” and not actually involved in methamphetamine manufacture.
Regarding Kendall’s criminal record: at 17, he was convicted of second degree burglary and stealing; at 22, he was convicted of careless driving and driving while impaired; at 29, he was convicted of drivi ng while intoxicated; at 30, he was convicted of driving while intoxicated; at 32 he was convicted of the felony driving while intoxicated (persistent offender) and misdemeanor possession of a controlled substance. This is not the type of extraordinary record to justify an extraordinary variance. Cf. United States v. Shannon , 414 F.3d 921, 924 (8th Cir. 2005) (upholding a sentence of fifty-eight months when th e defendant had an a dvisory guideline range of six to twelve months because the defe ndant possessed a serious ly under-represented criminal history).

A review of the 18 U.S.C. § 3553(a) f actors demonstrate no extraordinary circumstances exist here; the facts of this case do not warrant such a substantial upward variance. Thus, the district court erred in sentencing Kendall to eighty-four months imprisonment.-5- III
For the foregoing reasons, we reve rse and remand for resentencing.

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