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 (“McDonald”) pled guilty to two counts of attempting

to manufacture methamphetamine in violation 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 Sentencing 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
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sentence and roughly 50 percent below the 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 methamphetamine 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 possession of drug paraphernalia and materials

necessary to manufacture methamphetamine. A subsequent search of McDonald’s

residence yielded additional methamphetamine manufacturing materials. McDonald

faced state charges in Iowa following each arrest. 

The state charges against McDonald were dismissed when a federal grand jury

indicted McDonald in connection 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 substance. Related to his April 2004 arrest,

McDonald pled guilty to a second count of attempting to manufacture

methamphetamine.

Because McDonald had previously been convicted of a felony drug offense, the

district court determined that the statutory mandatory minimum sentence for each

count of attempting to manufacture methamphetamine was ten years. 21 U.S.C. §

841(b)(1)(B). The maximum available sentence was life imprisonment. Id. Because
1

 “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 substance offense; and

(3) the defendant has at least two prior felony convictions of . . . a controlled

substance offense.” Guidelines § 4B1.1.

2

 Pursuant to Guidelines § 4B1.1, every 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.

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the district court determined that McDonald was a “career offender,”1 McDonald’s

criminal history category was VI. Guidelines § 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-level adjustment for acceptance

of responsibility. Accordingly, the district court determined that the total offense level

was 34. As a result, the advisory guidelines sentencing range was 262 to 327 months.2

At McDonald’s sentencing hearing, McDonald’s brother, Rodney McDonald

(“Rodney”), testified that 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 Rodney, in 2001, one of McDonald’s daughters was killed

in an automobile accident, and McDonald’s other daughter moved back in with her

mother. Rodney testified that McDonald began 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 employer would be willing to rehire 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
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excuse, . . . is clearly relevant 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 overstated 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) McDonald began cooperating “very early on” after his arrest.

McDonald’s lawyer argued that McDonald should be sentenced to the statutory

mandatory minimum sentence of 120 months. 

McDonald testified that he had been “mistreated in the 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 McDonald’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 [McDonald] is not feeding his addiction, he can

compete in the private sector.” The district court considered the statement of

McDonald’s previous employer, Ms. Schulte of Schulte Construction. Schulte

Construction employed McDonald “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 knowledgeable, hardworking and punctual.”

However, Ms. Schulte also “relate[d] how [McDonald’s] productivity and attendance

declined.” The district court stated that it “assume[d] this is in conjunction with his

addiction.” Ms. Schulte indicated that she might reconsider McDonald for

employment following his imprisonment, if he can stay off drugs.

On the other hand, the district court found that McDonald was appropriately

considered a career offender, specifically disagreed with McDonald’s

“characterization of his past activity as being innocuous” and noted that McDonald’s

activities placed the public at serious risk. 
3 Nellum refers to UNITED STATES SENTENCING COMMISSION, MEASURING

RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING

GUIDELINES (2004), available at http://www.ussc.gov/publicat/Recidivism_General.

pdf [hereinafter the “USSC Recidivism Study”]. 

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The district court made several comments about McDonald’s psychological

health and drug addiction. For instance, the 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 district court concluded that it was “pretty well

convinced that the Defendant is a drug addict and has a great dependency on drugs .

. . .” Nevertheless, the district court stated that McDonald’s addiction “does not

forgive or relieve the serious implications of his drug manufacturing in this instance.”

The district court also addressed the death 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 insight into his mental health problems, nor

apparently does his family.”

Finally, the district court discussed 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 based 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 Recidivism Study, the district court in the

instant case stated that
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[t]he likelihood of recidivism . . . recidivism 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 McDonald 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. McDonald’s sentences for all counts were to

run concurrently. The district court concluded by commenting 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 determine “whether the district court abused its

discretion by imposing an unreasonable 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 Guidelines are fashioned taking the other

§ 3553(a) factors into account and are the product of years of careful study, the
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guidelines sentencing range, though advisory, is presumed reasonable,” United States

v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006). 

Nevertheless, because the sentencing guidelines 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 guidelines 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 downward 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 sentence 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 awarded McDonald: McDonald’s work history

and the district court’s estimation of McDonald’s likelihood of recidivism. We find

that neither reason is sufficient to support the extraordinary sentence reduction. 

During sentencing, with respect to McDonald’s employment history, the district

court only “reference[d] [McDonald’s] employment 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
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assuming that a 15-month period of work could be an extraordinarily positive factor

when assessing a 38 year-old defendant’s work 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 declined due to his drug habit. As his employer, Ms. Schulte,

recounted, McDonald “became very lax in coming to work on time, if he even showed

up.” Moreover, there is no indication in the 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 course 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 measure’s predictive powers shows that the

aggregate Chapter Four provisions are performing as intended and designed. . . . The

empirical evidence shows that criminal history as a risk measurement tool has
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statistically significant power in distinguishing between recidivists and nonrecidivists.”). 

We have previously cautioned against substantial variances predicated upon

characteristics of the individual defendant for which the guidelines calculation already

accounts. In United States v. Myers, 439 F.3d 415, 418 (8th Cir. 2006), we rejected

such a variance:

The only section 3553(a) factor identified by the district court that

weighs toward a more lenient sentence is Myers’ lack of criminal

history. Inasmuch as a guidelines sentence reflects a defendant’s

criminal history, a wide divergence 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 uniformity. 439 F.3d at 418. And as Booker stated,

Congress’s clear intent is to make sentences more uniform, and uniformity remains

an important sentencing goal. 543 U.S. at 253-54; see also 18 U.S.C. § 3553(a)(6)

(including “the need to avoid unwarranted 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 years of release. USSC Recidivism Study at 28

(Exhibit 9). The exhibit categorizes offenders using two variables: age at sentencing

and criminal history category. It contains one column for each of the six criminal

history categories and rows that reflect offender age categories. Nellum, upon which

the district court relied, reprinted only one column of the six-column chart—a column

that set forth the recidivism rates for offenders 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 Simon [from the Northern District of

Indiana] quotes the United States Sentencing 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 . . . .”).

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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 addition 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 false information to the police (in 1995);

driving while intoxicated (in 1993); driving while barred (in 2000); and driving on a

suspended license three times (twice in 1994 and once in 1996). Starting with his first
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felony conviction at age 24 and including the instant offenses, McDonald was

convicted of 18 different crimes over the succeeding 13-year period. McDonald’s

convictions resulted in a variety of sentences 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 was a career offender. The Sentencing

Commission created the career offender provision, Guidelines § 4B1.1, in response

to Congress’s directive to “assure that the 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 old or older and . . . has previously been

convicted of two or more prior felonies, each of 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 career offender 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 career offenders 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 guidelines 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 misapplied it. Contrary to the district court’s

apparent interpretation of the USSC Recidivism Study, the study in fact supports the

guidelines’ determination that offenders like McDonald with a criminal history

category of VI recidivate more often than not. According to the USSC Recidivism

Study, 51.3 percent of individuals with McDonald’s criminal history category, VI, and

age at sentencing, 38, recidivated within two years of release. USSC Recidivism
5

 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 category of III who were between 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 history category of VI who were between 36 and

40 years of age at sentencing (like McDonald) 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

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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 who were McDonald’s age. Id. The relevant statistics

stand in distinct contrast to the district court’s mistaken estimation that someone of

McDonald’s age really only had a 29.4 percent 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 prior to their instant offense” 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 constitute the type of compelling justifications

necessary to justify a variance of the magnitude awarded here.6

 Accordingly, we
vary 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 district court 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 diagnoses” 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 district court’s detailed reliance on McDonald’s

work history and the recidivism study, we cannot 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 this 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 mental 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 sentences imposed above the advisory guidelines range (sixteen

affirmed, one vacated) and vacate those below 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, reveals several mundane explanations

for the disparity. 

First, the dissent’s list includes seven sentences varying downward that were

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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 1004.7
vacated 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. Indeed, sentences vacated for

absence of reasoning might well be affirmed when they appear before us again with

the benefit of the sentencing court’s reasoning.

Second, the dissent’s list includes seven sentences (five of which are not

included in the previous paragraph) that depart or vary downward more than 100

months, but only one that departs or varies upward by that amount. Because

extraordinary departures and variances 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, despite 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 prison time where the Sentencing Commission has

found that substantial prison time is indicated also requires extraordinary justification.

United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006).

Finally, and most tellingly, statistics 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 sentences (17 departures and 77 variances), a ratio of more

than 8:1 below-guidelines to above-guidelines sentences. See United States

Sentencing Commission, FINAL REPORT ON THE IMPACT OF UNITED STATES V.BOOKER

ON FEDERAL SENTENCING D-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

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do not reach us for appellate review and are, thus, effectively affirmed, although not

eligible for the dissent’s list. Furthermore, one would expect that the limited number

of below-guidelines sentences actually appealed by the Government represent those

that appear to be the most debatable, and, thus, the most likely to be overturned on

appeal.

Based on this non-exhaustive list of factors, 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)).

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III. CONCLUSION

For the foregoing reasons, we vacate McDonald’s sentence as unreasonable

and remand for resentencing consistent 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 district court acted properly, and because

today's decision affords too 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 stated "[u]nder the post-Booker advisory system, the

Federal Sentencing Act 'requires a sentencing court to consider 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 rejected the notion "that the range of
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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 directed to review a

sentence for reasonableness based on all the 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 defendant'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 children and entrepreneurial spirit). Indeed,

"[w]e believe it would seriously affect[] the fairness, integrity, or public reputation of

judicial proceedings 'to not allow the district court to consider these factors now.'"

Lamoreaux, 422 F.3d at 756 (quoting United States v. Rodriguez-Ceballos, 407 F.3d

937, 941-42 (8th Cir. 2005) (internal quotations 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 imposed." 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 "range of reasonableness" is within the court's discretion.

Id. (quoting United States v. Saenz, 428 F.3d 1159, 1165 (8th Cir. 2005)).
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The exercise of a district court's sentencing discretion 

[I]mplies the absence of a hard-and-fast rule. The establishment of a

clearly defined rule of action 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 court 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 discretion by taking into account improper or

irrelevant factors or by ignoring 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; his addiction to methamphetamine and mental

health problems; the need for treatment and 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 likelihood 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 called upon to consider and balance. The

sentence reflects the seriousness of the offense 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 sentence also provides McDonald the opportunity

to receive the treatment and rehabilitation he needs to overcome his drug addiction

and mental health problems and once again become a productive member of society.
-18-

I recognize another judge might have imposed 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 incantations' that each statutory factor has been

considered." Lamoreaux, 422 F.3d at 756 (citations omitted). Nor do we "require a

district court to categorically rehearse each of 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 relevant 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 court'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") with 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 system which 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 standard – and no longer have the luxury of

treating sentencing like a mathematical equation. 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 symptomatic of the growing pains our courts are

experiencing as we move away from a constitutionally infirm system of mandatory

sentencing to the advisory system commanded by Booker. If we fail to implement the

promise of Booker and do not relinquish greater discretion to experienced district

court judges whose proximity to sentencing 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 above the Guidelines range, while reversing

most sentences imposed below the Guidelines range.

Judge Heaney noted that since Booker, our court has affirmed twelve sentences

in excess of the recommended Guidelines range but reversed 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 court 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 three. To his list of cases reversing below

Guidelines sentences, I add the following: 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 Guidelines sentences while affirming only four.

Like Judge Heaney, I recognize other considerations may explain the disparity.

Nonetheless, I believe it should be the catalyst for the court to take a critical look at

how we dispose of such cases. 

If we are to be deferential when the Government persuades a

district judge to render a non-Guidelines sentence somewhat above the

Guidelines range, we must be similarly deferential when a defendant

persuades a district judge to render a non-Guidelines sentence somewhat

below the Guidelines range. Obviously, 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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