                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2690
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                   Robert Robinson

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                              Submitted: May 13, 2019
                                Filed: June 11, 2019
                                   [Unpublished]
                                   ____________

Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

      Robert Robinson pleaded guilty to uttering counterfeit securities after he used,
and directed others to use, counterfeit $100 bills to buy various merchandise at
ubiquitous stores such as Kohls, Petsmart, Bed, Bath & Beyond, and Big Lots, in
October 2017. Although Robinson's calculated Guidelines range was only 8-14
months, the district court1 found that since Robinson had previously committed
burglary and identity theft in state courts for which he was prosecuted without getting
much, if any, jail time, the court should vary upward in this matter to a sentence of
36 months. The court stated that the Guidelines were "not the least bit relevant to
both the conduct in the instant case and his persistent felonious conduct for the last
five years." Robinson challenges the procedural and substantive reasonableness of
this sentence. Robinson alleges the district court procedurally erred by making
clearly erroneous factual findings, referencing the court's statements about Robinson
not receiving much in the way of prison time for his previous sentences, and its
statement that the Guidelines were "not relevant."

       We review sentences, inside or outside the Guidelines range, under the
deferential abuse-of-discretion standard.2 United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc). We "first ensure that the district court committed no
significant procedural error." Gall v. United States, 552 U.S. 38, 51 (2007). As

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
      2
        We question whether Robinson adequately preserved his procedural challenge
so as to avoid plain error review. Although counsel mentioned that he wanted to
challenge procedural and substantive reasonableness after the court pronounced its
sentence, when the court asked counsel to specify his procedural challenge, counsel
responded, "[y]our Honor, actually substantively I would like to specify if I may."
Sentencing Tr. at 8 (emphasis added). Cf. United States v. MacInnis, 607 F.3d 539,
542 (8th Cir. 2010) (holding that while counsel had previously questioned the district
court's computation of the defendant's criminal history category, counsel "conceded
this objection at the . . . sentencing hearing" by not raising it despite several
opportunities to do so). Although Robinson generically raised a procedural challenge
at the sentencing hearing, when the district court reasonably asked counsel to specify
how the court had procedurally erred, he was only willing to specify the substantive
challenge. However, the government does not argue that plain error review is
appropriate, and the result is the same under either plain error or the usual procedural
review, which we employ.

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relevant here, procedural error includes basing a sentence on clearly erroneous facts.
Id. A district court abuses its discretion when it (1) fails to consider a relevant factor
that should have received substantial weight; (2) gives too much weight to an
improper or irrelevant factor; or (3) actually considers correct factors but commits a
clear error in judgment in weighing them. Feemster, 572 F.3d at 461.

       Robinson focuses his procedural argument on the district court's alleged
consideration of improper facts when the court discussed Robinson's previous state
court jail sentences, which the court intimated were too short. However, Robinson
mischaracterizes the record by arguing that the district court did not understand that
Robinson had served incrementally longer sentences with each prior offense. The
district court credited the unobjected-to findings in the presentence investigation
report (PSR) and thus knew that Robinson had previously gone to jail three times and
the accompanying length of each of those three sentences; the court nonetheless
believed that the previous sentences were not long enough to get Robinson's
"attention." Indeed, the PSR indicated Robinson served seven days for his first
offense (burglary); six months for his second offense (identity theft); and 316 days
for his third offense (counterfeit credit/debit device). Indeed, these relevant facts
were known and appropriately considered by the district court.

        Although we question the district court's statement that the Guidelines were
"not the least bit relevant" to Robinson's current or prior offenses, the remark is
somewhat taken out of context, and we note that the court did not procedurally err in
its calculation of the Guidelines sentence. It simply decided that an upward variance
was appropriate. This distinguishes the matter from United States v. Sullivan, 853
F.3d 475, 480 (8th Cir. 2017), wherein the district court sua sponte increased the
defendant's criminal history category in order to achieve the desired sentence.
Although the court in both Sullivan and the instant case made similar comments about
the leniency of the defendants' prior state court sentences, the Sullivan court



                                           -3-
procedurally erred by recalculating the Guidelines criminal history category and
departing upwards. Id. Here there was no such procedural error.

      In the absence of a procedural error, we "then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard." Gall,
552 U.S. at 51. Having reviewed the sentencing transcript, the PSR, and the
arguments of counsel, we find that the district court did not abuse its discretion in
varying upward and sentencing Robinson to 36 months in prison in this matter. Thus,
we affirm.
                       ______________________________




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