                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1344
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  John Wesley Jones

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: September 21, 2012
                             Filed: December 11, 2012
                                  ____________

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       John Wesley Jones pled guilty to interference with interstate commerce through
robbery by threats or violence in violation of 18 U.S.C. §§ 2 and 1951(a); brandishing
a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1);
felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1);
and escape from federal custody in violation of 18 U.S.C. § 751(a). The district
court1 initially determined Jones qualified for the career offender enhancement and
sentenced him to 384 months imprisonment, which was within the advisory guideline
range. After an error in Jones’s criminal history was discovered on appeal, the
government conceded Jones did not qualify for the career offender enhancement, and
we remanded the case for re-sentencing. The district court again imposed a sentence
of 384 months imprisonment, which, without the career offender enhancement,
represents an upward variance of 90 months from the advisory guideline range. Jones
appeals his sentence, arguing the district court abused its discretion in imposing the
same sentence on remand even though the career offender enhancement no longer
applied. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                          I.

      Jones’s convictions stem from his armed robbery of ATM Solutions, Inc., a
company that supplies funds and collects deposits for banking institutions in the St.
Louis, Missouri, area. On August 2, 2010, Jones and three co-conspirators rushed
two ATM Solutions guards, took their guns, forced them at gunpoint to unlock the
ATM Solutions vault, and then stole approximately $6 million in cash. Police
apprehended Jones the next day after he nearly crashed into an unmarked police car
while transporting $1.4 million of the stolen money and then attempted to flee the
scene. After being indicted and detained, Jones escaped from federal custody, but
authorities apprehended him two days later. He eventually pled guilty to four
offenses related to the armed robbery and escape.

      On May 12, 2011, the district court held a sentencing hearing. After
confirming neither party had any objections to the Presentence Investigation Report
(“PSR”), the court adopted its factual findings. The PSR identified Jones as a career


      1
       The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

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offender due to multiple previous convictions involving robbery, burglary, and
assault. See United States Sentencing Commission, Guidelines Manual, §4B1.1. The
court calculated the advisory guideline range to be 346 to 411 months and determined
the appropriate sentence was 384 months imprisonment. In reaching this number, the
court commented on the seriousness of Jones’s crimes, the fact that he previously
committed crimes involving violence and firearms, and the fact that he committed
many of his crimes while on probation or parole for other offenses.

       Jones appealed his sentence, arguing he was not a career offender because
some of his previous convictions should have been counted as a single offense since
there was no intervening arrest and he was sentenced on the same day. After
investigating Jones’s assertion, the government conceded Jones did not qualify for
the career offender enhancement, and we remanded the case for re-sentencing.
United States v. Jones, No. 11-2144 (8th Cir. Dec. 19, 2011).

       The district court held a new sentencing hearing on February 2, 2012. Without
the career offender enhancement, the district court calculated the advisory guideline
range to be 264 to 294 months imprisonment. The court commented that “the only
difference between the sentencing today and the sentencing last May is that you don’t
meet the ‘career offender’ designation under the guidelines.” The court noted that
“[t]he nature and circumstances and the seriousness of the crimes that you committed
are the same today as they were in May of 2011,” that Jones “exhibited a persistence
in criminal activity,” that his “prior crimes have included firearms possession and use
as well as escaping from custody,” and “that the prior sentences of imprisonment that
you’ve received—and even one as long as 20 years—haven’t done anything to deter
you from criminal conduct.” The court determined the earlier sentence of 384 months
imprisonment still “was appropriate to address the goals of punishment, deterrence,
and incapacitation, after taking into account your history and characteristic[s] as well
as the nature and circumstances of the offense.” The court again sentenced Jones to
384 months imprisonment, and he filed the instant appeal.

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                                          II.

       “We review a district court’s sentence for abuse of discretion.” United States
v. David, 682 F.3d 1074, 1076 (8th Cir. 2012). First, we must determine whether the
district court committed any significant procedural error. Id. Second, “we review the
substantive reasonableness of the sentence, considering the totality of the
circumstances.” Id. at 1077. Jones does not argue the district court committed
procedural error. Thus, we consider only whether his sentence of 384 months
imprisonment, a 90-month upward variance from the advisory guidelines range, is
substantively unreasonable. We give great deference to the district court, and “it will
be the unusual case when we reverse a district court sentence as substantively
unreasonable.” Id.

       Jones first argues the district court abused its discretion by imposing the same
sentence on remand, even though his advisory guideline range was lower due to the
absence of the career offender enhancement. However, the fact that a district court
imposes the same sentence on remand despite a change in the advisory guideline
range does not, by itself, make the sentence substantively unreasonable. See United
States v. Braggs, 511 F.3d 808, 811-13 (8th Cir. 2008) (upholding imposition of same
sentence on remand, even though original sentence was reversed due to erroneous
application of two-level sentencing enhancement); cf. United States v. Evans, 314
F.3d 329, 330-31 (8th Cir. 2002) (upholding imposition of same sentence on remand,
even though original sentence involved Ex Post Facto Clause violation since it was
based on increases to statutory maximums passed after commission of offenses).

       Jones next argues the upward variance makes his sentence substantively
unreasonable because it places his penalty on par with defendants to whom he is not
similar. “[T]he district court is prohibited from presuming that the Guidelines range
is reasonable” and instead “must ‘make an individualized assessment based on the
facts presented.’” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en

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banc) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)). The district court may
vary from the guidelines as long as it “‘consider[s] the extent of the deviation and
ensure[s] that the justification is sufficiently compelling to support the degree of the
variance.’” Id. (quoting Gall, 552 U.S. at 50). An upward variance may be warranted
where the defendant has demonstrated a “‘contemptuous disregard’ for the law” or
“where a defendant repeats his or her criminal conduct shortly after completing
punishment for a previous offense.” David, 682 F.3d at 1077; see also Braggs, 511
F.3d at 811-13 (upholding upward variance when district court explained defendant’s
pattern of criminal behavior indicated she would not be deterred by guideline
sentence). “Although we may consider the extent of the district court’s variance, we
give due deference to the court’s decision that the [18 U.S.C.] § 3553(a) factors, on
a whole, justify the extent of the variance.” David, 682 F.3d at 1077.

       Here, the record shows the district court imposed Jones’s sentence based on its
careful evaluation of the section 3553(a) factors. At both the May 2011 and February
2012 sentencing hearings, the district court expressed grave concern about the
seriousness of Jones’s offenses and the fact that he committed similar offenses in the
past. At the February 2012 hearing, the court also noted that a previous sentence of
20 years imprisonment had not been enough to deter Jones from continuing to commit
serious, violent offenses. In fact, according to Jones’s PSR, he committed the instant
offenses while still on parole under that earlier 20-year sentence. “[A] sentencing
court has wide latitude to weigh the § 3553(a) factors and assign some factors greater
weight than others in determining an appropriate sentence.” Id. We believe the
district court’s justifications for Jones’s sentence “rest largely on the kind of
defendant-specific determinations that are within the special competence of
sentencing courts.” United States v. Foy, 617 F.3d 1029, 1038 (8th Cir. 2010)
(internal quotation marks omitted). Accordingly, we hold the district court did not
abuse its discretion in sentencing Jones to 384 months imprisonment.




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                            III.

For the reasons explained above, we affirm.
                ______________________________




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