United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2198

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United States of America, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Mario Claiborne, *

*

Defendant - Appellee. *

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Submitted: December 13, 2005

Filed: February 27, 2006

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Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.

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LOKEN, Chief Judge.

Mario Claiborne pleaded guilty to two counts of possessing and distributing

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 844(a). The district court

determined that Claiborne’s advisory guidelines sentencing range is 37 to 46 months

in prison and imposed a 15-month sentence. The government appeals the sentence as

unreasonable under 18 U.S.C. § 3553(a). We agree and remand for resentencing.

In May 2003, Claiborne was arrested for attempting to sell 0.23 grams of

cocaine base to an undercover police officer. Six months later, police approached

Claiborne engaged in what appeared to be a drug deal. He fled through the house next
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door, throwing down a plastic baggie containing 5.03 grams of cocaine base.

Claiborne was charged with and pleaded guilty to distributing cocaine base during the

first incident and possessing cocaine base during the second.

At sentencing, the district court granted Claiborne “safety valve” relief from the

five year mandatory minimum sentence under 18 U.S.C. § 844(a). See 18 U.S.C.

§ 3553(f); U.S.S.G. §§ 2D1.1(b)(7), 5C1.2. The court also rejected the government’s

position that he should receive a two-level increase for reckless endangerment because

he fled through a nearby residence. See U.S.S.G. § 3C1.2. These rulings resulted in

a guidelines sentencing range of 37 to 46 months in prison, which is not at issue on

appeal. Recognizing that the guidelines are advisory under United States v. Booker,

543 U.S. 220 (2005), the district court sentenced Claiborne to 15 months in prison,

concluding that “the 37 month low end of the range is, in my view, excessive” because

of Claiborne’s lack of criminal history, young age, the small quantity of drugs

involved, and the court’s opinion that Claiborne was not likely to commit similar

crimes in the future. The government appeals, arguing that 15 months is an

unreasonable downward variance from the guidelines range.

Under Booker, the sentencing guidelines are no longer a mandatory regime.

Instead, the district court must take the advisory guidelines into account together with

other sentencing factors enumerated in 18 U.S.C. § 3553(a). 543 U.S. at 259-60. In

fashioning an appropriate sentence, the district court must first calculate the applicable

guidelines sentencing range. United States v. Haack, 403 F.3d 997, 1002-03 (8th

Cir.), cert. denied 126 S.Ct. 276 (2005). The court may then impose a sentence

outside the range in order to “tailor the sentence in light of the other statutory

concerns” in § 3553(a). Booker, 543 U.S. at 245-46. When the district court has

correctly determined the guidelines sentencing range, as in this case, we review the

resulting sentence for reasonableness, a standard akin to our traditional review for

abuse of discretion. 
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The Guidelines were fashioned taking the other § 3553(a) factors into account

and are the product of years of careful study. Thus, the guidelines sentencing range,

though advisory, is presumed reasonable. See United States v. Lincoln, 413 F.3d 716,

717 (8th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

When the district court varies from the guidelines range based upon its analysis of the

§ 3553(a) factors, we must examine whether “the district court's decision to grant a

§ 3553(a) variance from the appropriate guidelines range is reasonable, and whether

the extent of any § 3553(a) variance . . . is reasonable.” United States v. Mashek, 406

F.3d 1012, 1017 (8th Cir. 2005); see Haack, 403 F.3d at 1004. “Sentences varying

from the guidelines range . . . are reasonable so long as the judge offers appropriate

justification under the factors specified in 18 U.S.C. § 3553(a). How compelling that

justification must be is proportional to the extent of the difference between the

advisory range and the sentence imposed.” United States v. Johnson, 427 F.3d 423,

426-27 (7th Cir. 2005) (citation omitted). A "range of reasonableness" is within the

court's discretion. United States v. Saenz, 428 F.3d 1159, 1165 (8th Cir. 2005).

 

Here, the district court imposed a 15-month sentence when the bottom of

Claiborne’s advisory guidelines range was 37 months. This is a sixty percent

downward variance. “An extraordinary reduction must be supported by extraordinary

circumstances.” United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). We

conclude that the sixty percent reduction granted to Claiborne was an extraordinary

variance that is not supported by comparably extraordinary circumstances.

Claiborne’s lack of criminal history was taken into account when the safety valve

eliminated an otherwise applicable mandatory minimum sentence. The small amount

of crack cocaine seized during his two offenses was taken into account in determining

his guidelines range. Substantially reducing the resulting guidelines range sentence

based upon drug quantity is unreasonable because it is a fair inference that Claiborne

distributed additional quantities of cocaine during the six months between the two

occasions interdicted by the police. Similarly, while the district court properly

focused on the likelihood Claiborne would commit further crimes in the future, the
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fact that he committed a second serious drug offense six months after his first arrest

demonstrates that Claiborne has not earned an extraordinary downward variance from

a guidelines sentence that already reflects substantial leniency.

For the foregoing reasons, we conclude that the sentence is unreasonable and

remand to the district court for resentencing.

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