1 The Honorable Andrew W. Bogue, United St ates District Judge for the District of South Dakota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-2416

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Corey D. Lyons, *
* Appellant. *

___________ Submitted: January 11, 2006 Filed: June 19, 2006

___________ Before BYE and COLLOTON, Circuit Judges, and BOGUE, 1 District Judge.

___________ COLLOTON, Circuit Judge.

Corey Lyons and three accomplices robbed a Bank of America in Cape Girardeau, Missouri, in January 2004, st ealing approximately $10,300. Lyons pled guilty to committing bank robbery while jeopardizing the lives of those in the bank by use of a dangerous weapon, in viol ation of 18 U.S.C. §§ 2113(a) and (d) (Count I), and to possession of a firearm during a crime of violence, in violation of 18 U.S.C.2 The Honorable Catherine D. Perry, United St ates District Judge for the Eastern District of Missouri.
-2- § 924(c)(1)(A)(ii) (Count II). He appeals his 180-month sentence for Count I, and we affirm.

Lyons’s total offense level under the Un ited States Sentencing Guidelines was 20, and his extensive criminal history placed him in criminal history category VI. The resulting advisory guideline range for C ount I was 70 to 87 months’ imprisonment. The district court, 2cognizant of its authority under United States v. Booker , 543 U.S. 220 (2005), to vary from the advisory guidelines, sentenced Lyons to 180 months’ imprisonment on Count I. After describing Lyons’s extensive criminal history, the court stated, “I think there is a serious danger that this defendant will commit further crimes, and I think having him incarceratedfor a longer time will be good[,] because he can get some further education, and perhaps some self reflection that will lead him to perhaps be rehabilitated.” (S. Tr. at 41). The court also imposed the statutory minimum sentence of seven years’ imprisonment for Count II, to be served consecutively with the sentence on Count I.

Lyons challenges the reasonableness of the sentence on Count I. Review for reasonableness is akin to review for abuse of discretion, United States v. Hadash , 408 F.3d 1080, 1083 (8th Cir. 2005), and we will consider a se ntence unreasonable if the district court “fails to cons ider a relevant factor that should have received significant weight, gives significant weight to an imprope r or irrelevant factor, or considers only appropriate factors but neve rtheless commits a clear error of judgment by arriving at a sentence that lies outside the limited rangeof choice dictated by the facts of the case.” United States v. Haack , 403 F.3d 997, 1004 (8th Cir.), cert. denied , 126 S. Ct. 276 (2005). The “relevant factors” the di strict court must consider are those enumerated in 18 U.S.C. § 3553(a). United States v. May , 413 F.3d 841, 844-45 (8th Cir.), cert. denied , 126 S. Ct. 672 (2005).-3- Although the 180-month sentence imposed on Count I was substantially greater than the advisory guideline range found by th e district court, we do not think it was unreasonable under the circumstances. First, th ere was no procedural error. The court considered the relevant § 3553(a) factor s in sentencing Lyons, explaining “that a higher sentence is necessary when I consid er the nature and circumstances of the offense,” see § 3553(a)(1), “the history and ch aracteristics of the defendant,” see id ., “the need for punishment,” see § 3553(a)(2)(A), “and a sentence that reflects the seriousness of the offense to provide ade quate deterrence[] and to protect the public from further crimes of the defendant,” see §§ 3553(a)(2)(B), (a)(2)(C). (S. Tr. at 41). The court was particularly concerned that the bank robbery was an especially violent crime, saying that “Mr. Lyons is frankly lucky that there was nobody inside who didn’t follow their instructions or otherwise did not do something that ended up with people shooting and people being killed,” (S. Tr. at 40), and that Lyons had been convicted for 19 separate offenses in 15 year s. (S. Tr. at 39). The court ruled that Lyons was not a career offender under th e guidelines, which it found “somewhat ironic,” (S. Tr. at 37), and decided that his criminal history and the violent nature of the instant offense warranted the upward variance. These are appropriate factors to consider in deciding whether to vary fro m the guideline range, and the court did not neglect factors that should have been given significant weight.

We also conclude that the length of the sentence imposed was within the range of reasonableness. The most apposite precedent is United States v. Shannon , 414 F.3d 921 (8th Cir. 2005), which held that where a defendant accumulated 31 criminal history points, while only 13 points are n ecessary for placement in category VI, and the district court identified other aggravati ng factors in the criminal history, it was reasonable to vary from the advisory guide line range of six to twelve months and impose a sentence of 58 months’ imprisonment. Id . at 922-24. We find a comparable situation here.-4- Lyons sustained 19 different criminal c onvictions over 15 years. The district court’s summary of his criminal history is accurate and illustrative:

Mr. Lyons is 31 years old. Over th e past 15 years, he has 19 separate convictions. They include things like slamming his sister to the ground and attempting to strangle her, wh ich was a domestic battery; hitting a police officer in the nose, which was a resisting arrest; delivery of cocaine; obstruction of justice; battery, which involved pushing a victim and grabbing him by the throat; several DWIs or DUIs; and then a large number of property crimes; steali ng from retail stores, stealing very small things from retail stores like a dog collar or a six-pack of beer; and things like stealing very large things , such as stereo speakers, cassette tapes and a tape case, or stealing a leather jacket from a person.

(S. Tr. at 39).

Lyons scored 31 criminal history points under the guidelines, including four points for committing the bank robbery while on probation and within two years of his most recent release from custody. The di strict court aptly described his criminal history as “a series of escalating criminal acts,” finally resulting in the “violent crime” for which he was sentenced in this case. As in Shannon , this defendant committed one offense right after another duri ng 15 years of criminal activity, see United States v. Washington , 109 F.3d 459, 462 (8th Cir. 1997), co mmitted several violations of probation or parole, (PSR ¶¶ 64, 68, 94); see United States v. Yahnke , 395 F.3d 823, 825-26 (8th Cir. 2005), and was treated with leniency by the state courts during his lengthy criminal career, see United States v. Lang , 898 F.2d 1378, 1380 (8th Cir. 1990).

These considerations could have jus tified a traditional upward departure under the guidelines, see USSG § 4A1.3(a), which would havemade a sentence at or close to 180 months presumptively reasonable. See Shannon , 414 F.3d at 924. And even if a traditional departure of this magnitudewould have been somewhat excessive, we3 There is a bit of irony in Lyons’s cha llenge to the 180-month sentence, because success in the appeal could well result in a longer sentence on remand. The district court ruled that Lyons was not a career offender for purposes of USSG § 4B1.1, because his conviction for driving while in toxicated was not a “crime of violence,” see United States v. Walker , 393 F.3d 819 (8th Cir. 2005), but since then, we have held that this offense is a crime of violence. United States v. Spudich , 443 F.3d 986, 987 (8th Cir. 2006) (per curiam). If the pr esent sentence were deemed unreasonable on this record, and if the government on remand presented evidence from acceptable sources showing that Lyons’s conviction fo r drunk driving necessarily rested on the fact that he was driving while intoxicated, see United States v. McCall , 439 F.3d 967, 974 (8th Cir. 2006) (en banc); cf . PSR ¶ 97, then Lyons would qualify as a career offender. His advisory guideline rangewould be 188-235 months’ imprisonment, see USSG § 4B1.1(b)(B); 18 U.S.C. § 2113(d), and a sentence even longer than that imposed by the district court woul d be “presumptively reasonable.” United States v. Lincoln , 413 F.3d 716, 717-18 (8th Cir.), cert. denied , 126 S. Ct. 840 (2005).
-5- do not believe it was unreasonable for the district court to exercise its additional discretion under Booker to arrive at a sentence of 180 months. Id . Although we have characterized an upward varian ce of this magnitude as “e xtraordinary,” and such an extraordinary variance must be supporte d by extraordinary circumstances, the combination of Lyons’s aggravated criminal history and the violence of the instant offense are sufficiently extraordinary to justify the sentence imposed. Cf. United States v. Kendall , 446 F.3d 782, 784-85 (8th Cir. 2006) (holding upward variance unreasonable where defendant was “low in the chain” of methamphetamine manufacturing, and criminal history included a burglary as a juvenile, several driving offenses, and a misdemeanor drug offense). 3

Lyons also contends that the district court’s decision to vary from the advisory guideline range based on the authority announced in Booker violates the Ex Post Facto Clauses of the Constitution. These provisions do not apply to judicial decisions, so we interpret Lyons’ argument to invoke the Due Process Clause of the Fifth Amendment, and the “concepts of no tice, foreseeability, and in particular the right to fair warning.” Rogers v. Tennessee , 532 U.S. 451, 456-57, 459 (2001). As-6- noted, there is a substantial argument that the district court could have imposed the same sentence prior to Booker , based on a traditional guidelines departure. See USSG § 4A1.3; United States v. Paulus , 419 F.3d 693, 698-99 (7th Cir. 2005). In any event, Lyons’s due process contention is foreclosed by circuit precedent. United States v. Counce , 445 F.3d 1016, 1019 (8th Cir. 2006) (per curiam); United States v. Wade , 435 F.3d 829, 832 (8th Cir. 2006) (per curiam).

The judgment of the district court is affirmed.

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