                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3994
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Tarone M. Jones,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 22, 2009
                                 Filed: March 3, 2010
                                  ___________

Before RILEY, SMITH, and GRUENDER, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       A jury convicted Tarone Jones of being a felon in possession of a shotgun and
a semi-automatic pistol, in violation of 18 U.S.C. § 922(g)(1). The district court1
granted the government's upward departure motion for underrepresented criminal
history and imposed a 240-month sentence. On appeal, Jones argues that the district
court erred in failing to consider the harshness of the advisory Guidelines range before
granting the government's upward departure motion. We disagree and affirm the
judgment of the district court.

      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
                                     I. Background
       The charges against Jones arose from the Storm Lake, Iowa Police Department's
investigation into a quarrel at Jones's apartment involving a sawed-off shotgun and a
semi-automatic pistol. Officers discovered the semi-automatic pistol hidden in Jones's
apartment and the sawed-off shotgun hidden in another apartment in the same
complex. Jones was charged and convicted of being a felon in possession of a firearm.

      Jones's presentence investigation report assigned Jones 19 criminal history
points. Additionally, he had four convictions or adjudications that did not result in any
criminal history points. Jones's criminal history also included four convictions for
"violent felonies" within the meaning of U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e).
Specifically, two armed robbery offenses on June 30, 1999, against two separate
victims; an October 31, 2002 assault and battery of a police officer; and a November
28, 2005 assault and battery of a police officer.

       At sentencing, the district court set Jones's Guidelines range between 235 and
293 months' imprisonment based upon an offense level of 33 and a category VI
criminal history. The court also found Jones to be an armed career criminal. After a
brief colloquy, the district court granted the government's upward departure motion
pursuant to U.S.S.G. § 4A1.3(a)(1) for substantial underrepresentation of Jones's
dangerousness and recidivism and departed upward two levels. The court noted
Jones's six additional criminal history points (it takes 13 points to qualify for criminal
history category VI) and observed the remarkable rapidity with which Jones
committed crimes. The court then departed upward two additional levels to account
for the six extra points. This resulted in an advisory Guidelines range of 292 to 365
months' imprisonment. The court then granted Jones's variance motion and reduced
his sentence to 240 months.




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                                      II. Discussion
       On appeal, Jones claims that the court abused its discretion by considering the
government's upward departure motion independently from the calculated Guidelines
range. Jones maintains that in his case a § 4A1.3 enhancement was unnecessary
because his status as an armed career criminal established both a higher statutory
punishment and higher Guidelines punishment than otherwise would have been
applicable for the underlying offense. Jones further contends that the district court's
isolation of the narrow underrepresentation inquiry from all other considerations
essentially nullifies the discretion that § 4A1.3(a)(1) grants to the sentencing court.
Finally, Jones argues that the district court's subsequent downward departure does not
render this error harmless simply because it stated that its 240-month sentence was
"sufficient but not greater than necessary."

       This court reviews a district court's decision to depart pursuant to § 4A1.3 for
an abuse of discretion. United States v. Azure, 536 F.3d 922, 930 (8th Cir. 2008).
"Section 4A1.3 permits an upward departure if 'reliable information indicates that the
defendant's criminal history category substantially underrepresents the seriousness of
the defendant's criminal history or the likelihood that the defendant will commit other
crimes.'" Id. (quoting U.S.S.G. § 4A1.3(a)(1)).

       Our review of Jones's criminal history convinces us that the district court did
not err when it increased his offense level by two levels and sentenced him to 240
months' imprisonment. Jones's criminal history is extensive. Remarkably, he amassed
all 19 of his criminal history points in just ten years. These offenses have not been
petty. They evidence Jones's aggressive and violent tendencies. One encounter
between Jones and his mother illustrates his violent disposition. After returning to his
mother's home intoxicated, Jones found the door locked. He then kicked the door and
demanded that it be opened. He threatened to "bust" his mother's "face in" if she did
not comply. Jones's conviction for this assaultive conduct did not count among Jones's
four convictions for "violent felonies" within the meaning of U.S.S.G. § 4B1.4 and 18

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U.S.C. § 924(e). On this record, the district court's upward departure, which, after all,
leaves Jones's sentence well below the statutory maximum for the offense of
conviction, was not unreasonable.

       Neither are we persuaded by Jones's argument that the district court erred by
independently considering the applicable Guidelines range and the government's
upward departure motion. Jones cites no authority for this proposition, and in fact, our
post-Booker cases appear to reject Jones's sentencing approach. "First, the district
court must determine the appropriate sentencing range under the Guidelines. Next, the
district court must decide if a traditional departure under the Guidelines is appropriate,
thus creating an advisory guidelines sentencing range. Finally, the district court must
consider the § 3553(a) factors to determine a sentence." United States v. Plaza, 471
F.3d 928, 930 (8th Cir. 2006) (internal quotations and citations omitted). Accordingly,
contrary to Jones's contention, we have indicated that the Guidelines and departures
are to be considered sequentially. Furthermore, we have stated:

      When contemplating and structuring such a departure, the district court
      should consider both the nature and extent of a defendant's criminal
      history. In deciding the likelihood that a defendant may commit other
      crimes, a court may take into account any evidence of obvious
      incorrigibility and conclude that leniency has not been effective.

United States v. Walking Eagle, 553 F.3d 654, 657 (8th Cir. 2009) (internal
quotations, alterations, and citations omitted).

       Similarly, Jones's contention that the district court ignored the discretionary
nature of § 4A1.3(a)(1) is unsupported by the record. Without such evidence this
argument fails because district courts are presumed to know and apply sentencing law.
See United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009) ("We presume that
district judges know the law and understand their obligation to consider all of the §
3553(a) factors.") (internal quotations and citations omitted).

                                           -4-
      We need not address Jones's argument that any error related to the departure
was not harmless, as we find no error in the district court's analysis.

                                  III. Conclusion
      The judgment of the district court is affirmed.
                     ______________________________




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