## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ 05-1617

________________ United States of America, *
* Appellant, * * Appeal from the United States v. * District Court for the Southern * District of Iowa. Jeffrey Allen McDonald, *
* Appellee. *

________________ Submitted: December 12, 2005 Filed: September 5, 2006

________________ Before BYE, BEAM and GRUENDER, Circuit Judges.

________________ GRUENDER, Circuit Judge.

Jeffrey Allen McDonald (“Mc Donald”) pled guilty to two counts of attempting to manufacture methamphetamine in viol ation of 21 U.S.C. §§ 846 and 841(b)(1)(B) and one count of creating a substantial risk of harm to human life while manufacturing a controlled substance in violation of 21 U.S.C. § 858. After calculating an advisory United States Sentencing Commission Senten cing Guidelines sentencing range of 262 to 327 months, the district court sentenced McDonald to 132 months’ imprisonment—12 months longer than the statutory mandatory minimum-2- sentence and roughly 50 percent below th e guidelines sentencing range. The Government appeals. We remand for resentencing.

I. BACKGROUND

On January 2, 2004, law enforcement officers arrested McDonald after discovering that he was operating a metham phetamine lab in a crowded residential trailer park. On April 19, 2004, McDonald was arrested again. This time, during a traffic stop, police found him in possessi on of drug parapherna lia and materials necessary to manufacture methamphetamine. A subsequent search of McDonald’s residence yielded additional methamphetami ne manufacturing materials. McDonald faced state charges in Io wa following each arrest.

The state charges against McDonald were dismissed when a federal grand jury indicted McDonald in conn ection with his January and April 2004 arrests. In the district court, McDonald admitted his January 2004 offense and pled guilty to one count of attempting to manufacture methamphetamine. Because his methamphetamine lab created a serious risk of explosion in the crowded trailer park, McDonald also pled guilty to one count of creating a substantial risk to human life while manufacturing a controlled substan ce. Related to his April 2004 arrest, McDonald pled guilty to a second count of attempting to manufacture methamphetamine.

Because McDonald had previously been c onvicted of a felony drug offense, the district court determined that the st atutory mandatory minimum sentence for each count of attempting to manufacture methamphetamine was ten years. 21 U.S.C. § 841(b)(1)(B). The maximum availabl e sentence was life imprisonment. Id. Because1 “A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is . . . a controlled s ubstance offense; and (3) the defendant has at least two prior felony convictions of . . . a controlled substance offense.” Guidelines § 4B1.1.

2Pursuant to Guidelines § 4B1.1, ev ery career offender’s criminal history category is VI. As the district court noted, even without career offender status, McDonald’s criminal history category would have been V. Had McDonald not received a career offender enhancement, his total offense level (after an adjustment for acceptance of responsibility) would have been 31, and his guidelines sentencing range would have been 168 to 210 months.

-3- the district court determined thatMcDonald was a “career offender,” 1 McDonald’s criminal history category was VI. Guid elines § 4B1.1. Because the statutory maximum sentence for his crime was life imprisonment, McDonald’s adjusted base offense level was 37. Id. McDonald received a three-le vel adjustment for acceptance of responsibility. Accordingly, the district c ourt determined that the total offense level was 34. As a result, the advisory guide lines sentencing range was 262 to 327 months. 2

At McDonald’s sentencing hearing, McDonald’s brothe r, Rodney McDonald (“Rodney”), testified th at after McDonald was paroled from prison in 1998, McDonald stayed off drugs, worked as a mechanic and won custody of his two daughters. According to R odney, in 2001, one of McD onald’s daughters was killed in an automobile accident, and McDonald’s other daughter moved back in with her mother. Rodney testified that McDonald be gan drinking again, and he suggested that McDonald resumed his drug use. Rodney also stated that following McDonald’s prison term for the instant offenses, McDonald’s family would be supportive, and McDonald’s most recent empl oyer would be willing to rehi re McDonald “if he’s able to stay off drugs.”

Following Rodney’s testimony, the district court entertained McDonald’s attorney’s argument that: (i) the death of McDonald’s daughter, though not “an-4- excuse, . . . is clearly releva nt as to how Mr. McDonald got back into using meth;” (ii) McDonald manufactured methamphetamine “primarily to feed his habit;” (iii) McDonald’s criminal history was overstate d due to the career offender enhancement; (iv) McDonald is only 38 years old, has a “pretty good work history” and has strong family support; and (v) McDona ld began cooperating “very early on” after his arrest. McDonald’s lawyer argued that McDonaldshould be sentenced to the statutory mandatory minimum sentence of 120 months.

McDonald testified that he had been “mistreated in th e system,” he had already served time when his probation had been revoked in 1997, and “he stayed clean” beginning with his imprisonment in 1997 and up until his daughter died in 2001.

After also hearing from the Government, the district court discussed factors that, in its view, were relevant to McDona ld’s sentence. The district court viewed positively McDonald’s “employment for over a year’s period of time as well as his skills as a welder,” finding that “when [McD onald] is not feeding his addiction, he can compete in the private sector.” The di strict court considered the statement of McDonald’s previous employer, Ms. Schu lte of Schulte Construction. Schulte Construction employed McDona ld “as a mechanic and a laborer from March 17, ’02 through June 28, ’03.” Ms. Schulte told the probation office that McDonald “was an excellent employee, he was very know ledgeable, hardworking and punctual.” However, Ms. Schulte also “relate[d] how [McDonald’s] produc tivity and attendance declined.” The district cour t stated that it “assume[d] this is in conjunction with his addiction.” Ms. Schulte indicated thatshe might reconsider McDonald for employment following his imprisonment, if he can stay off drugs.

On the other hand, the district court found that McDonaldwas appropriately considered a career offender, speci fically disagreed with McDonald’s “characterization of his past activity as being innocuous” and not ed that McDonald’s activities placed the public at serious risk.3 Nellum refers to U NITED S TATES S ENTENCING C OMMISSION , M EASURING R ECIDIVISM : T HE C RIMINAL H ISTORY C OMPUTATION OF THE F EDERAL S ENTENCING G UIDELINES (2004), available at http://www.ussc.gov/publicat/Recidivism_General. pdf [hereinafter the “USSC Recidivism Study”].

-5- The district court made several co mments about McDonald’s psychological health and drug addiction. For instance, th e district court noted that McDonald had been diagnosed with depression and was taking medication. The district court also stated that “[s]pecific mention by me will be [made] of the Defendant’s long-time drug dependency and psychiatric diagnoses that have been made both in the past and in the future” and that “[t]he Defendant’s criminal history indicates that he has been addicted to methamphetamine.” The distri ct court concluded th at it was “pretty well convinced that the Defendant is a drug a ddict and has a great dependency on drugs . . . .” Nevertheless, the di strict court stated that Mc Donald’s addiction “does not forgive or relieve the serious implications of his drug manufacturing in this instance.”

The district court also addressed the d eath of McDonald’s daughter, stating that “[t]he personal tragedies of the Defendant have, according to the Defendant, been the triggering event. Whether or not that’s true, and the Court is in no position to know that, the Defendant apparently has no insi ght into his mental health problems, nor apparently does his family.”

Finally, the district court discusse d an unpublished opinion from the Northern District of Indiana, United States v. Nellum , No. 2:04-CR-30-PS, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005). Citing a United States Sentencing Commission study regarding recidivism, 3 the district court in Nellum varied downward from the guidelines sentencing range ba sed in part upon that court’ s prediction that Nellum was unlikely to recidivate due to his advanced age. Relying upon Nellum ’s reproduction of a portion of a chart from the USSC Recidi vism Study, the district court in the instant case stated that-6- [t]he likelihood of recidivism . . . reci divism rates decline consistently as age increases. Generally, the younger the offender, the more likely the offender recidivates. . . . [Quoting Nellum :] Among all offenders under the age of 21 recidivism rate is 35. 5, while offenders over the age of 50 have a recidivism rate of 9.5 percent. . . . According to the [criminal] history category III Defendants like Defendant Nellum the recidivism rates are as follows, and the Court is going to specifically refer to Mr. McDonald’s age as between 36 and 40, the recidivism rate is still 29.4 percent.
Based upon the district court’s analysis of McDonald’s age and its perceived relationship to the likelihood that McDonald would recidivate, the district court stated that “with the long sentence that is mandated by the Congress, hopefully the citizens will be protected from Mr. McDonald. He will be adequately deterred and the public won’t have further crimes committed by this Defendant.”

The district court then sentenced Mc Donald to 132 months’ imprisonment on each count of attempting to manufacture methamphetamine, as well as 120 months’ imprisonment for creating a substantial risk of harm to human life while manufacturing a controlled substance. McD onald’s sentences for all counts were to run concurrently. The distri ct court concluded by commenti ng that “[t]his . . ., I think, would be categorized by the Government as a very lenient sentence . . . .”

II. DISCUSSION

Following the Supreme Court’s decision in United States v. Booker , 543 U.S. 220 (2005), we review sentences to determin e “whether the distri ct court abused its discretion by imposing an unreasona ble sentence on the defendant.” United States v. Haack , 403 F.3d 997, 1003 (8th Cir. 2005). The guidelines sentencing range remains the “critical starting point” of our analysis, United States v. Mashek , 406 F.3d 1012, 1016 n.4 (8th Cir. 2005), and “[b]ecause the Gu idelines are fashioned taking the other § 3553(a) factors into account and are the product of years of careful study, the-7- guidelines sentencing range, though advi sory, is presumed reasonable,” United States v. Shafer , 438 F.3d 1225, 1227 (8th Cir. 2006).

Nevertheless, because the sentencing gui delines are advisory, “the [district] court has a range of choice , and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Haack , 403 F.3d at 1004 (quoting Kern v. TXO Prod. Corp. , 738 F.2d 968, 970 (8th Cir. 1984)). Critically, the “range of choice is limited.” Id. “[T]he farther the district court varies from the presumptively reasonable guide lines range, the more compelling the justification based on the § 3553(a) factors must be.” United States v. McMannus , 436 F.3d 871, 874 (8th Cir. 2006); see also United States v. Dalton , 404 F.3d 1029, 1033 (8th Cir. 2005) (holding in review of a dow nward departure that “[a]n extraordinary reduction must be supported by extraordinary circumstances”). A district court abuses its sentencing discretion if it

fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only appropriate factors but nevertheless commits a clear error of judgment by arriving at a senten ce that lies outside the limited range of choice dictated by the facts of the case.

Haack , 403 F.3d at 1004

.

The record reflects that the district court clearly articulated two reasons in support of the 130-month variance it awarde d McDonald: McDonald’s work history and the district court’s estimation of McD onald’s likelihood of recidivism. We find that neither reason is sufficient to suppor t the extraordinary sentence reduction.

During sentencing, with respect to McD onald’s employment history, the district court only “reference[d] [McDonald’s] empl oyment for over a year’s period of time [i.e., his 15 months with Schulte Construction] as well as his skills as a welder.” Even-8- assuming that a 15-month period of work c ould be an extraordinarily positive factor when assessing a 38 year-old defendant’s wo rk history, it is clear that McDonald’s work history was anything but exemplary, even during that brief period. To the contrary, the record indicates that, while McDonald at first attended work regularly, his attendance severely declin ed due to his drug habit. As his employer, Ms. Schulte, recounted, McDonald “became very lax in co ming to work on time, if he even showed up.” Moreover, there is no indication in th e record that McDonald was employed for the six months leading up to his January 2004 arrest. Accordingly, to the extent that McDonald’s work during the 15-month period discussed by the district court contributed to the sentencing variance, it cannot sustain the extraordinary variance in this case. Cf. United States v. Moreland , 437 F.3d 424, 437 (4th Cir. 2006) (“Moreland’s desultory pursuit of his education and his spotty employment history—six jobs over the cour se of seven years, with his last legitimate employment in 1999—can provide little confidence in his willingness to become a productive member of society, irrespective of his ability to do so.”).

The district court’s determination that McDonald was unlikely to recidivate following his abbreviated sentence—a determination that relied upon McDonald’s age and the USSC Recidivism Study—is similarly insufficient to warrant a variance of the magnitude awarded. The guidelines have already accounted for the likelihood of recidivism through the guidelines’ criminal history computation. See, e.g. , United States v. Gayle , 389 F.3d 406, 409 (2d Cir. 2004) (“Gayle’s criminal history category . . . serves as a proxy for his likelihood of recidivism.”); USSC Recidivism Study at 10 (“Both [Criminal History Categories] and criminal history points predict recidivism.”); id. at 13 (“[T]he criminal history computation is designed to predict recidivism.”). Indeed, the USSC Recidivism Study concluded that the guidelines’ criminal history accurately predicted the likelihood of recidivism. Id. at 15 (“Testing of the guidelines’ criminal history meas ure’s predictive powers shows that the aggregate Chapter Four provisions are perform ing as intended and designed. . . . The empirical evidence shows that criminal hi story as a risk measurement tool has-9- statistically significant power in dis tinguishing between recidivists and nonrecidivists.”).

We have previously cautioned against substantial variances predicated upon characteristics of the indivi dual defendant for which the guidelines calculation already
accounts. In United States v. Myers , 439 F.3d 415, 418 (8th Ci r. 2006), we rejected such a variance:

The only section 3553(a) factor id entified by the district court that weighs toward a more lenient sent ence is Myers’ lack of criminal history. Inasmuch as a guidelines sentence reflects a defendant’s criminal history, a wide divergen ce from the guidelines sentence based solely on this single criterion would conflict with the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.

See also United States v. Claiborne , 439 F.3d 479, 481 (8th Cir. 2006) (rejecting a variance based upon the defendant’s criminal history and other factors for which the guidelines already accounted). As Myers noted, substantial variances based upon factors already taken into account in a defendant’s guidelines sentencing range seriously undermine sentencing unifo rmity. 439 F.3d at 418. And as Booker stated, Congress’s clear intent is to make sent ences more uniform, and uniformity remains an important sentencing go al. 543 U.S. at 253-54; see also 18 U.S.C. § 3553(a)(6) (including “the need to avoid unwarrant ed sentence disparities among defendants with similar records who have been found guilty of similar conduct” among § 3553(a) factors). Accordingly, applying our reasoning from Myers , we conclude that the district court’s assessment of McDonald’s likelihood of recidivism based solely on his age and the USSC Recidivism Study cannot justify a wide divergence from the guidelines sentence in this case because the guidelines sentencing range already accounts for the likelihood of recidivism.4 The USSC Recidivism Study contains an exhibit detailing the percentage of offenders that recidivate within two year s of release. USSC Recidivism Study at 28 (Exhibit 9). The exhibit categorizes offende rs using two variables: age at sentencing and criminal history category. It contai ns one column for each of the six criminal history categories and rows that reflect offender age categories. Nellum , upon which the district court relied, re printed only one column of th e six-column chart—a column that set forth the recidivism rates for offe nders with a criminal history category of III. The district court clearly relied upon the limited portion of the study reproduced in Nellum . Sentencing Tr. at 27-28 (“Judge Si mon [from the Northern District of Indiana] quotes the United States Sentenci ng Commission’s own report . . . . As the report states, quote . . . . According to the history category III Defendants like Defendant Nellum the recidivism rates are as follows . . . .”).

-10- Moreover, we are unpersuaded by the district court’s use of the USSC Recidivism Study. As a preliminary matter, it appears that the district court simply adopted Nellum ’s recitation and application of the study. 4 But Nellum was a much different offender. 2005 WL 300073, at *3. Nellum was 57 years old when he was sentenced and would not be released until he was 65. Id. at *3. McDonald was only 38 at sentencing. After serving a 132-month sentence, McDonald would be 49. In other words, at the time that McDonald would be released , McDonald would still be eight years younger than Nellum was when Nellum was sentenced

.

Nor were the two defendants’ criminal histories comparable. Two misdemeanor crack possession convictions placed Nellum in his criminal history category of III. Id. at *4. McDonald, on the other hand, had a significant and steady history of committing crime. In additi on to his 2004 convictions, between 1990 and 2000, McDonald was convicted of methamphetamine possession three times (in 1990, 1995 and 1996); possession with intent to deliver methamphetamine twice (in 1994 and 1995); marijuana possession (in 1995); various theft offenses three times (once in 1994 and twice in 1995); providing fals e information to the police (in 1995); driving while intoxicated (in 1993); drivi ng while barred (in 2000); and driving on a suspended license three times (twice in 1994 and once in 1996). Starting with his first-11- felony conviction at age 24 and including the instant offenses, McDonald was convicted of 18 different crimes over th e succeeding 13-year period. McDonald’s convictions resulted in a variety of sent ences that included jail time, probation and court-ordered substance abuse treatment. In several instances, McDonald’s probation was revoked (or he was jailed for contempt of court) because he offended yet again.

Moreover, unlike Nellum, McDonald wa s a career offender. The Sentencing Commission created the career offender provisi on, Guidelines § 4B 1.1, in response to Congress’s directive to “assure that th e guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years ol d or older and . . . has previously been convicted of two or more prior felonies, eachof which is . . . an offense described in [21 U.S.C. § 841].” 28 U.S.C. § 994(h); see also United States v. Bell , 445 F.3d 1086, 1088-89 (8th Cir. 2006) (discussing the relationship between 28 U.S.C. § 994(h) and Guidelines § 4B1.1). Even without careeroffender status, McDonald would have faced a guidelines sentencing range of 168 to 210 months. See n.2, supra . Thus, the district court’s extraordinary variance down to 132 months not only negates Congress’s intent that careeroffenders serve sentences “at or near the [statutory] maximum term authorized,” 28 U.S.C. § 994(h), it also represents a significant downward variance from McDonald’s guide lines range without the career offender enhancement.

Even if the USSC Recidivism Study could be deemed to shed light on the likelihood that McDonald will recidivate (beyond his criminal history computation), the district court misinterpreted and misapp lied it. Contrary to the district court’s apparent interpretation of the USSC Recidi vism Study, the study in fact supports the guidelines’ determination that offenders like McDonald with a criminal history category of VI recidivate more often th an not. According to the USSC Recidivism Study, 51.3 percent of individuals with McD onald’s criminal history category, VI, and age at sentencing, 38, recidivated withintwo years of release. USSC Recidivism5 According to Exhibit 9 of the USSC Recidivism Study, 19.8 percent of offenders with a criminal history category of III who were over age 50 at sentencing (like Nellum) recidivated within two years. USSC Recidivism Study at 28. Of those offenders with a criminal history categor y of III who were be tween 36 and 40 years of age at sentencing, 29.4 percent recidivated within two years. Id. However, 51.3 percent of offenders with a criminal hist ory category of VI w ho were between 36 and 40 years of age at sentencing (like McD onald) recidivated within two years. Id.

6 We make no holding concerning whether the record in this case could support a downward variance of some lesser magnitude. The district court was unwilling to

-12- Study at 28 (Exhibit 9). Offenders under the age of 21 who were in McDonald’s criminal history category of VI recidivated 55 percent of the time—only 3.7 percent more often than offenders w ho were McDonald’s age. Id. The relevant statistics stand in distinct contrast to the districtcourt’s mistaken estimation that someone of McDonald’s age really only had a 29.4 pe rcent chance of recidivating—a conclusion reached by mistakenly using the statistics relating to a defendant with a criminal history category of III like Nellum, rather than VI like McDonald. 5

Even within those categories, the USSC Recidivism Study noted that characteristics other than age influence the likelihood of recidivism. Those who lacked “stable employment in the year prio r to their instant o ffense” and those who used “illicit drugs within one year prior to their instant offense have a higher recidivism rate.” Id. at 12-13. McDonald fits both of these categories. At bottom, the USSC Recidivism Study does not support a variance in this case.

We do not rule out the possibility that some extraordinary work history or individual characteristic related to age or the likelihood of recidivism could justify a variance in other cases. However, in this case, McDonald’s work history and the district court’s estimation of his likelihood of recidivism—whether considered separately or together—do not constitutethe type of compelling justifications necessary to justify a variance of the magnitude awarded here. 6 Accordingly, wevary based upon the death of McDonald’s daughter, as it was unable to determine if, as McDonald urged, the death of McDonald ’s daughter really was the triggering event for McDonald’s relapse into drug use. As the districtcourt stated, it was “in no position to know” whether there was a causal connection between the death of McDonald’s daughter and McDonald’s relapse.
The district court was less clear, however , with respect to McDonald’s other personal characteristics. Specifically, the district court’s ambiguous statement that “[s]pecific mention by me will be [made] of the Defendant’s long-time drug dependency and psychiatric dia gnoses” is equally consistent with the district court’s consideration and dismissal of those characteristics as it is with consideration and variance based upon them. Given the distri ct court’s detailed reliance on McDonald’s work history and the recidivism study, we ca nnot merely assume that the district court based its variance upon McDonald’s addiction or mental health. Cf. United States v. Gatewood , 438 F.3d 894, 896 (8th Cir. 2006) (“For th is court to properly carry out the appellate review mandated by Booker , it is essential that the district court explain the reasons why it has imposed a sentence outside the guidelines sentencing range in a particular case.”). In any event, the district court’s ambiguous statements regarding McDonald’s addiction and me ntal health do not support a variance of the magnitude awarded.

7 The dissent, following United States v. Meyer , 452 F.3d 998, 1000 n.3 (8th Cir. 2006) (Heaney, J., concurring), summarizes the results of our post- Booker sentencing review cases, including both departures and variances, and expresses concern that we have tended to affirm senten ces imposed above the advisory guidelines range (sixteen affirmed, one vacated) and vacate those be low the range (five affirmed, twenty-five vacated). We accept the dissent’s invitation “to take a critical look at how we dispose of such cases.” Post at 20. A closer look at the cases

listed in Meyer , as supplemented by the dissent, re veals several mundane explanations for the disparity.
First, the dissent’s list includes seve n sentences varying downward that were

-13- conclude that the district court “commit[ ted] a clear error of judgment by arriving at a sentence that lies outside the limited range of choice dictated by the facts of the case.” Haack , 403 F.3d at 1004. 7vacated by necessity because the sentencing court did not explain any reasoning for the downward variance. Shafer , 438 F.3d at 1227 (“For this court to properly carry out the appellate review mandated by Booker , it is essential that the district court explain why it imposed a sentence below the guidelines range . . . .”). This should occur with less frequency as sentencing courts have begun to comply with our only recently developed Booker -review jurisprudence. I ndeed, sentences vacated for absence of reasoning might well be affirmed when they appear be fore us again with the benefit of the sentencing court’s reasoning.
Second, the dissent’s list includes se ven sentences (five of which are not included in the previous paragraph) thatdepart or vary dow nward more than 100 months, but only one that departs or varies upward by that amount. Because extraordinary departures and variance s must be supported by extraordinary circumstances, McMannus , 436 F.3d at 874, it stands to reason that departures and variances of the largest magnitude have less of a likelihood of surviving appellate review.
Third, the list includes five sentences that were vacated where the sentencing court imposed no prison term at all, desp ite a lower end of the advisory guidelines range of 12, 24, 30, 46 and 63 months respectively. (In addition, one sentence varying downward from a low end of 12 months to no prison term was affirmed.) We have suggested that a variance to zero pris on time where the Sentencing Commission has found that substantial prison time is indicatedalso requires extraordinary justification. United States v. Gall , 446 F.3d 884, 889 (8th Cir. 2006). Finally, and most tellingly, statistic s published by the Sentencing Commission establish that, between the publication of Booker and February 2, 2006, sentencing courts in the Eighth Circuit pronounced 767 below-guidelines range sentences (169 departures and 598 variances; not counting those sponsored by the Government) and 94 above-guidelines range sent ences (17 departures and 77 variances), a ratio of more than 8:1 below-guidelines to above-guidelines sentences. See United States Sentencing Commission, F INAL R EPORT ON THE I MPACT OF U NITED S TATES V

. B OOKER ON F EDERAL S ENTENCINGD-20 (March 2006). Although the time frame in the dissent’s list of cases is not an exact match, the ratio of below-guidelines range sentences appealed to above-guidelines sentences appealed in the list is less than 2:1. These statistics indicate that about three- quarters of below-guidelines range sentences

-14-do not reach us for appellate review and are, thus, e ffectively affirmed, although not eligible for the dissent’s list. Furthermor e, one would expect that the limited number of below-guidelines sentences actually app ealed by the Government represent those that appear to be the most debatable, a nd, thus, the most likely to be overturned on appeal.

Based on this non-exhaustive list of fact ors, it appears that the discretion afforded to sentencing judges post- Booker is not “an escalator that only goes up.” Post at 20 (quoting United States v. Jones , No. 05-2289 (2d Cir. Aug. 2, 2006)).

-15- III. CONCLUSION

For the foregoing reasons, we vacate McDonald’s sentence as unreasonable and remand for resentencing cons istent with this opinion.

BYE, Circuit Judge, dissenting.

The majority concludes the district court abused its discretion by imposing a sentence of 132 months. I believe the di strict court acted properly, and because today's decision affords t oo little deference to the broad discretion visited upon sentencing courts under the now-advisory guideline system, I am compelled to respectfully dissent.

We have consistently stat ed "[u]nder the post-Booker advisory system, the Federal Sentencing Act 'require s a sentencing court to cons ider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.'" United States v. Archuleta , 412 F.3d 1003, 1006 (8th Cir. 2005) (quoting United States v. Booker , 125 S. Ct. 738, 757 (2005)). Nothing indicates the advisory Guidelines range is anything more than one factor, among many, the sentencing court is obligated to consider before imposing a sentence. We have held a sentence within the Guidelines range is presumptively reasonable, United States v. Lincoln , 413 F.3d 716, 717 (8th Cir. 2005), but have rej ected the notion "that the range of-16- reasonableness is essentially co-extensive with the Guidelines range" because such a rule "would effectively render the Guidelines mandatory." United States v. Winters , 416 F.3d 856, 861 (8th Cir. 2005). Instead, "[ w]e have been dir ected to review a sentence for reasonableness based on allthe factors listed in § 3553(a)(6). The Guidelines range is but one such factor . We cannot isolate possible sentencing disparity to the exclusion of all the other § 3553(a) factors." Id. (emphasis in original).

Under the mandatory Guidelines scheme, district courts were prohibited from considering a defendant's characteristics in"any manner other than as a basis for a Guidelines departure." United States v. Ryder , 414 F.3d 908, 920 (8th Cir. 2005). Now, § 3553(a) requires a district court to consider a defenda nt's characteristics independent of the guidelines. Id. ("Now coupled with the requirements in § 3553(a) . . . the district court would be well within its discretion to . . . consider . . . ages and medical conditions as non-Guidelines factors on remand"); see also United States v. Lamoreaux , 422 F.3d 750, 756 (8th Cir. 2005) (holding the district court properly considered non-Guidelines sentencing factors such as prior military service, wife's pregnancy, the need to care for other child ren and entrepreneurial spirit). Indeed, "[w]e believe it would seriously affect[] th e fairness, integrity, or public reputation of judicial proceedings 'to not allow the distri ct court to consider these factors now.'" Lamoreaux , 422 F.3d at 756 (quoting United St ates v. Rodriguez-Ceballos , 407 F.3d 937, 941-42 (8th Cir. 2005) (internal quotati ons omitted)). "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 impos ed." United States v. Claiborne , 439 F.3d 479, 480 (8th Cir. 2006) (quoting United States v. Johnson , 427 F.3d 423, 426-27 (7th Cir. 2005) (citation omitted)). A "ra nge of reasonableness" is w ithin the court's discretion. Id. (quoting United States v. Saenz , 428 F.3d 1159, 1165 (8th Cir. 2005)).-17- The exercise of a district court's sentencing discretion

[I]mplies the absence of a hard-and-fa st rule. The establishment of a clearly defined rule of ac tion would be the end of discretion , and yet discretion should not be a word for arbitrary will or inconsiderate action. Discretion means the equitable decision of what is just and proper under the circumstances.
The Styria v. Morgan , 186 U.S. 1, 9 (1902) (internal quotations omitted) (emphasis in original). "[Discretion] takes account of the law and the particular circumstances of the case and is directed by the reason and conscience of the judge to a just result." Burns v. United States , 287 U.S. 216, 223 (1932) (internal quotations omitted).

The record demonstrates the district c ourt carefully considered all the relevant circumstances and arrived at a just and proper result. I find nothing to suggest it strayed from the proper exercise of di scretion by taking into account improper or irrelevant factors or by i gnoring factors which should have been given significant weight. United States v. Haack , 403 F.3d 997, 1004 (8th Cir. 2005). Among other circumstances, the district court considered McDonald's criminal history and the serious nature of his current crimes; hi s addiction to methamphetamine and mental health problems; the need for treatment a nd rehabilitation; the tragic death of his daughter; his employment history; and the need to protect the public and impose a significant sentence to minimize the likeli hood of future criminal conduct. The eleven-year sentence imposed by the court represents a significant period of incarceration and reflects a reasoned attempt to arrive at a proper sentence in light of the myriad sentencing factors it was calle d upon to consider and balance. The sentence reflects the seriousness of the offe nse and specifically takes into account the need to protect the public until such time the likelihood of future criminal conduct would be minimized. The lengthy senten ce also provides McDonald the opportunity to receive the treatment and rehabilitation he needs to overcome his drug addiction and mental health problems and once agai n become a productive member of society.-18- I recognize another judge might have impos ed a different sentence but I find nothing to convince me the district court abused its discretion.

The majority holds the district court did not adequately explain the reasons behind the 132-month sentence. I disagree. We have repeatedly stated: "Nothing in § 3553(a) . . . requires 'robotic incantati ons' that each statutory factor has been considered." Lamoreaux , 422 F.3d at 756 (citations omitte d). Nor do we "require a district court to categorically rehearse eachof the section 3553(a) factors on the record when it imposes sentence so long as it is clear that they were considered." United States v. Dieken , 432 F.3d 906, 909 (8th Cir. 2006); see also United States v. Long Soldier , 431 F.3d 1120, 1123 (8th Cir. 2005) ("The re levant inquiry is not whether the district court quoted or cited § 3553(a); it is whether the district court actually considered the § 3553(a) factors.").

The majority also relies on the need to avoid unwarranted sentencing disparities as a basis for rejecting the district c ourt's sentence. Sentencing disparities were predicted by the Supreme Court in Booker :
[R]egardless, in this context, we must view fears of a "discordant symphony," "excessive disparities," and "havoc" (if they are not themselves "gross exaggerations") w ith a comparative eye. We cannot and do not claim that use of a "reasonableness" standard will provide the uniformity [in sentencing] that Congress originally sought to secure.

Booker , 543 U.S. at 263.

Accordingly, while uniformity remains an important component of sentencing, it cannot serve as the touchstone in a systemwhich orders district courts to consider and balance a multitude of other factors. Such an approach would simplify sentencing but undermine Booker . We are now the arbiters of a sentencing system driven by-19- reasonableness – a much more fluid sta ndard – and no longer have the luxury of treating sentencing like a mathematical equati on. We must be prepared to accept that with discretion comes some disparity. I am confident district courts exercise their discretion with wisdom and restraint and believe appellate courts should only rarely reverse such decisions.

I believe today's decision is symptomati c of the growing pa ins our courts are experiencing as we move away from a c onstitutionally infirm system of mandatory sentencing to the advisory system commanded by Booker . If we fail to implement the promise of Bookerand do not relinquish greater discretion to experienced district court judges whose proximity to sentenci ng renders them eminently more qualified to appreciate the subtleties of each case, we will find ourselves the architects of a new – and equally unconstitutional – de facto mandatory sentencing system crafted from the ashes of the last.

I also wish to lend my voice to the concerns expressed by Judge Heaney in United States v. Meyer , 452 F.3d 998, 1000 n.3 (8th Cir. 2006). I too have noticed our court routinely affirms sentences abovethe Guidelines range, while reversing most sentences imposed be low the Guidelines range.

Judge Heaney noted that since Booker , our court has affirmed twelve sentences in excess of the recommended Guidelines range but revers ed only one. To his list of cases affirming sentences in excess of the Guidelines range, I add the following: United States v. Maurstad , 2006 WL 1997148 (8th Cir. July 19, 2006), United States v. Hacker , 450 F.3d 808 (8th Cir. 2006), United States v. Donelson , 450 F.3d 768 (8th Cir. 2006), and United States v. Porter , 439 F.3d 845 (8th Cir. 2006). My research reveals no additional cases in which the c ourt reversed a sentence in excess of the recommended Guidelines range. Thus, by my count, we have affirmed sixteen above Guidelines cases while reversing only one.-20- Judge Heaney further noted the court has reversed sixteen sentences which were below the Guidelines range and affirmed thr ee. To his list of cases reversing below Guidelines sentences, I add the fo llowing: United States v. Collier , No. 05-2198, slip op. (8th Cir. Aug. 10, 2006) , United States v. Brown , 2006 WL 2192716 (8th Cir. Aug. 4, 2006), United States v. Robinson , 2006 WL 2011226 (8th Cir. July 20, 2006), United States v. Lee , 2006 WL 2011170 (8th Cir. July 20, 2006), United States v. Medearis , 451 F.3d 918 (8th Cir. 2006), United States v. Rivera , 439 F.3d 446 (8th Cir. 2006), United States v. Myers , 439 F.3d 415 (8th Cir. 2006), United States v. Feemster , 435 F.3d 881 (8th Cir. 2006), and United States v. Coyle , 429 F.3d 1192 (8th Cir. 2006). To his list of cases affirming below Guidelines sentences, I add: United States v. Krutsinger , 449 F.3d 827 (8th Cir. 2006). Thus, by my count, we have reversed twenty-five below Guidelin es sentences while affirming only four.

Like Judge Heaney, I recognize other cons iderations may explain the disparity. Nonetheless, I believe it shoul d be the catalyst for the court to take a critical look at how we dispose of such cases.

If we are to be deferential wh en the Government persuades a district judge to render a non-Guide lines sentence somewhat above the Guidelines range, we must be simi larly deferential when a defendant persuades a district judge to render a non-Guidelines sentence somewhat below the Guidelines range. Obvi ously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up.

United States v. Jones , 2006 WL 2167171, at *4 (2d Cir. Aug. 2, 2006).

For these reasons, I respectfully dissent.

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