United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1377

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Larry Huston, *

* [UNPUBLISHED]

Appellant. *

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Submitted: November 14, 2011

Filed: January 30, 2012

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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.

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PER CURIAM.

Larry Huston pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). The district court departed upward from the

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United States Sentencing Guidelines (Guidelines or U.S.S.G.) range and sentenced

Huston to 78 months’ imprisonment. Huston appeals his sentence, and we affirm.

The Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa.
I. 

On December 7, 2008, a police officer saw Huston carrying a camouflage gun

case. The officer recognized Huston and suspected that he might be a felon. Later,

after the officer had confirmed his suspicion, Huston was questioned at the police

station and consented to a search of his residence. Police found three firearms during

the search. Huston mistakenly believed his gun rights had been restored, along with

his voting rights. Huston pled guilty to being a felon in possession of a firearm.

The presentence report calculated Huston’s offense level to be 19 and placed

him in criminal history category V. The advisory Guidelines sentencing range was

57 to 71 months’ imprisonment. At the sentencing hearing, the government argued

for an upward departure based on Huston’s unscored criminal history, under U.S.S.G.

§ 4A1.3. Huston argued for a downward variance. Specifically, Huston argued that

the following facts supported a downward variance: his belief that his gun rights had

been restored; the fact that he had guns only for hunting; his efforts to assist in

rebuilding after Hurricane Katrina in New Orleans, Louisiana, and flooding in Cedar

Rapids, Iowa; and the 18 years that had elapsed between his conviction for burglary,

a violent felony, and his current conviction. The district court departed upward one

criminal history category, placing Huston in criminal history category VI. The

Guidelines range was then 63 to 78 months’ imprisonment, and the district court

sentenced Huston to a 78-month term of imprisonment. Huston argues that the

district court’s decision to depart upward, as well as its decision to deny his request

for a downward variance, was in error.

II.

We review the district court’s decision to impose an upward departure for

abuse of discretion. United States v. Johnson, 648 F.3d 940, 942 (8th Cir. 2011). 

“[A] district court may impose an upward departure ‘if reliable information indicates

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

seriousness of the defendant’s criminal history or the likelihood that the defendant

will commit other crimes.’” Id. (quoting U.S.S.G. § 4A1.3(a)(1)). “When

contemplating and structuring such a departure,the district court should consider both

the nature and extent of a defendant’s criminal history.” United States v. Walking

Eagle, 553 F.3d 654, 657 (8th Cir. 2009) (quoting United States v. Hacker, 450 F.3d

808, 812 (8th Cir. 2006)). 

Huston had been assessed twelve criminal history points, placing him in

criminal history category V. The court noted that “there is substantial unscored

criminal history,” including conspiracy to commit burglary, operating a motor vehicle

without the owner’s consent, forgery, theft, escape from custody, and public

intoxication. The court concluded:

I think Mr. Teig’s point about unscored criminal history is a substantial

argument. I find that his criminal history is underscored. I find that he

has a high likelihood to recidivate based on his prior criminal history,

his alcohol issues that he has not come to grips with, his unwillingness

to conform his behavior to court orders orto authority, lenient sentences

and treatments have not deterred him, and his apparent disrespect for the

law.

Sentencing Tr. 19-20.

We conclude that the district court did not abuse its discretion in departing

upward in this case. A decision to depart upward may constitute an abuse of

discretion when, for example, the district court departs upward multiple levels

without sufficient explanation. See, e.g., United States v. Azure, 536 F.3d 922, 932

(8th Cir. 2008). Here, in contrast, the district court departed upward only one level

after explaining that the defendant’s unscored criminal history led the court to believe

that he was likely to recidivate. Huston’s criminal history, as he admits, is “lengthy”

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and “substantial.” Sentencing Tr. 9. The decision to depart upward was reasonable,

supported by the record, and within the district court’s discretion.

Huston also argues that because the district court denied his request for a

downward variance his resulting sentence is substantively unreasonable. “We will

not reverse a sentence as substantively unreasonable absent a showing of abuse of

discretion by the district court.” United States v. San-Miguel, 634 F.3d 471, 475 (8th

Cir. 2011). “A district court abuses its discretion when it fails to consider a relevant

factor, gives significant weight to an irrelevant or improper factor, or considers only

appropriate factors but nevertheless commits a clear error of judgment . . . .” Id.

(quoting United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007)). 

Huston contendsthat the district court did not give enough weight to mitigating

factors and over-emphasized his older criminal history rather than focusing on his

more recent criminal history. We disagree. The sentencing transcript demonstrates

that the district court was well aware of the circumstances surrounding Huston’s

firearmpossession, including his mistaken belief that his gun rights had been restored

and his full criminal history. That the district court’s evaluation of these facts

resulted in a sentence different from that which Huston had hoped for does not

constitute an abuse of discretion. “[I]t will be the unusual case when we reverse a

district court sentence—whether within, above, or below the applicable Guidelines

range—assubstantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464

(8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090

(D.C. Cir. 2008)). This is not that case.

III.

The judgment and sentence are affirmed.

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