                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1098
                                    ___________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *   Appeal from the United States
      v.                                   *   District Court for the
                                           *   Northern District of Iowa.
Bradley Yahnke,                            *
                                           *
             Appellant.
                                    ___________

                              Submitted: November 18, 2004
                                 Filed: February 1, 2005 (Corrected March 22, 2005)
                                  ___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Bradley Linn Yahnke pleaded guilty to maintaining a place for manufacturing,
storing, distributing, and using methamphetamine, in violation of 21 U.S.C. § 856 and
18 U.S.C. § 2. In the presentence investigation report, he received a total offense
level of 17, with a criminal-history category of five points, or category III, according
to the United States Sentencing Guidelines. The district court,1 sua sponte, upwardly
departed two criminal-history categories, sentencing Yahnke to 57 months, plus three
years supervised release and a $100 special assessment. Yahnke attacks not the

      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
legality of the guidelines, but only the final sentence. Jurisdiction being proper under
18 U.S.C. § 3742 and 28 U.S.C. § 1291, this court affirms.


       Before United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 (Jan. 12, 2005),
this court reviewed de novo whether the district court based an upward departure on
a permissible factor. See United States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003),
citing PROTECT Act, Pub. L. No. 108-21, § 401(d), 117 Stat. 650 (2003) (amending
18 U.S.C. § 3742(e)). The "sentencing court's factual findings [were then] . . .
review[ed] for clear error and the reasonableness of a permissible departure for abuse
of discretion." Id.


      The Supreme Court in Booker excises section 3742(e) and any de novo review
of sentences. See Booker, 2005 WL 50108, at *24-25. This court now reviews
sentences for "unreasonable[ness]." Id. at *25.

      Section 3553(a) remains in effect, and sets forth numerous factors that
      guide sentencing. Those factors in turn will guide appellate courts . . .
      in determining whether a sentence is unreasonable.
      ....
      . . . The district courts, while not bound to apply the Guidelines, must
      consult those Guidelines and take them into account when sentencing.
      See 18 U.S.C.A. §§ 3553(a)(4), (5) (Supp. 2004). . . . The courts of
      appeals review sentencing decision for unreasonableness.

Id. at *25, 27 (internal citation omitted).


      In this case, the district court followed U.S.S.G. § 4A1.3(a), finding Yahnke's
criminal-history category substantially underrepresented the seriousness of his
criminal history and the likelihood of recidivism. After Booker, this court determines
whether a sentence is unreasonable based on the factors in section 3553(a). Two of


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those factors are "the history and characteristics of the defendant" and the "need . .
. to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(1),
(a)(2)(C). Although the district court labeled its reasons in terms of the sentencing
guidelines, the sentence is based on a consideration of the factors in section 3553(a).


       The district court based a one-category departure on Yahnke's prior second-
degree murder conviction, despite the crime's prior consideration in computing his
criminal history. As Yahnke notes, other circuits applied section 4A1.3 only "when
the defendant has committed crimes or conduct that the criminal history calculation
instructions . . . fail specifically to consider." See United States v. Henderson, 993
F.2d 187, 189 (9th Cir. 1993), quoting United States v. Morrison, 946 F.2d 484, 496
(7th Cir. 1991), cert denied, 506 U.S. 1039 (1992). But compare United States v.
Rivera, 879 F.2d 1247, 1255 (5th Cir.) (approving upward departure for murder that
also increased criminal-history points), cert denied, 493 U.S. 998 (1989).


       The district court's interpretation of section 4A1.3 is reasonable. Neither the
guidelines nor the commentary prohibit considering convictions also used to award
criminal-history points. Treating alike defendants with similar criminal histories (or
likelihood to recidivate) is based on the factors in section 3553(a). See 18 U.S.C. §
3553(a)(2)(C), (a)(6). Thus, some categories of crimes, such as murder, would be
underrepresented by an inflexible 3-point addition for any sentence over one year and
one month. See U.S.S.G. § 4A1.1(a).


       Yahnke was previously sentenced to 50 years for murder, and paroled after
serving only about 7 years. The violent nature of the murder conviction, the length
of the sentence, and the time actually served support a finding that Yahnke's criminal-
history category substantially underrepresented the seriousness of his criminal
history. See 18 U.S.C. § 3553(a)(1), (a)(2)(C).



                                         -3-
       The district court also found that Yahnke's parole violations and other
uncharged criminal conduct justified an increase in his criminal history. The
guidelines suggest that a district court increase a defendant's criminal history based
upon information of uncharged criminal conduct similar to the instant offense—
which a district court would now consider as part of the "defendant's history" and
"recidivism" factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(C); U.S.S.G. §
4A1.3(a)(2)(E).


       The district court found that Yahnke had four parole violations, including three
failed urinalysis tests.2 Yahnke also admitted numerous other incidents of criminal
conduct—all drug-related but not charged—for which he originally received no
criminal-history points. The district court reasonably considered Yahnke's continued
drug-related, uncharged conduct as proof that his criminal-history category
substantially underrepresented the seriousness of his criminal history and potential
for recidivism. See 18 U.S.C. § 3553(a)(1), (a)(2)(C).


      The district court assessed Yahnke one criminal-history category for the murder
conviction. The district court then evaluated the parole violations and uncharged
conduct as if each instance resulted in a conviction. United States v. Leaf, 306 F.3d
529, 533 (8th Cir. 2002) (increase in criminal-history category upheld where the


      2
        Yahnke asserts that the record does not show the violations resulted in
conviction, as the district court assumed. However, the district court was not required
to find that the parole violations resulted in conviction, because Yahnke admits the
violations occurred, both by not objecting to the presentence investigation report and
in his brief to this court. See Booker, 2005 WL 50108, at *16 ("Any fact (other than
a prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt."); see also
United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993) (district court may accept as
true all undisputed factual statements in a presentence investigation report).

                                         -4-
district court evaluated each instance of uncharged conduct as if resulting in a
conviction). The court concluded that, although the parole violations and uncharged
conduct "would, individually, warrant an upward departure by a full criminal history
category," it would depart only one additional category. United States v. Yahnke,
297 F.Supp.2d 1173, 1195 (N.D. Iowa 2003). Based on the record, the district court's
sentence is reasonable and not an abuse of discretion.


      The sentence imposed by the district court is affirmed.
                      ______________________________




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