                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2865
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Richard James Jackson

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                             Submitted: June 11, 2018
                               Filed: July 10, 2018
                                  [Unpublished]
                                  ____________

Before WOLLMAN, KELLY, and STRAS, Circuit Judges.
                          ____________

PER CURIAM.

     Richard J. Jackson pleaded guilty to involuntary manslaughter in violation of
18 U.S.C. §§ 1112 and 1153. The district court1 sentenced him to 60 months’

      1
       The Honorable Ralph R. Erickson, then Chief Judge, United States District
Court for District of North Dakota, now Circuit Judge for the United States Court of
Appeals for the Eighth Circuit.
imprisonment to be followed by three years’ supervised release and ordered Jackson
to pay $18,399.09 in restitution as well as a $100 special assessment. Jackson alleges
procedural error in his sentence and challenges its substantive reasonableness,
claiming that the district court erred in departing upward from the United States
Sentencing Guidelines (Guidelines or U.S.S.G.). We affirm.

       On May 21, 2016, Jackson was driving 59 miles per hour in a 40 mile per hour
zone on the Spirit Lake Indian Reservation when he struck and killed a five-year-old
child. Jackson left the scene of the accident and drove to his apartment to call 911.
Law enforcement went to his apartment, where Jackson admitted his conduct. He was
then transported to a medical facility for a blood draw, which indicated that his blood
alcohol content was 0.197.

      Jackson pleaded guilty to involuntary manslaughter in an open plea. The
presentence report (PSR) determined that Jackson had a total offense level of 19 and
a criminal history category of II, resulting in an advisory Guidelines range of 33 to
41 months’ imprisonment. The district court departed upward three categories to a
criminal history category of V under U.S.S.G. § 4A1.3(a)(2)(A). It determined that
Jackson’s new Guidelines range was 57 to 71 months’ imprisonment and then
imposed the above-mentioned sentence.

       We review sentences for abuse of discretion. United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc). “In reviewing [Jackson’s] sentence, we first
ensure that the district court did not commit significant procedural error, such as an
improper calculation of the advisory sentencing guidelines range; then, absent
significant procedural error, we review the sentence for substantive reasonableness.”
United States v. Jenkins, 578 F.3d 745, 748 (8th Cir. 2009).




                                         -2-
       Jackson first argues that the district court committed procedural error by failing
to adequately explain the upward departure. “Upward departures under § 4A1.3(a)
are applicable if ‘reliable information indicates the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes.’” United States
v. Vasquez, 552 F.3d 734, 738 (8th Cir. 2009) (quoting United States v. Mosby, 543
F.3d 438, 441-42 (8th Cir. 2008); U.S.S.G. § 4A1.3(a)(1)). “In making this
determination, the court may consider prior sentences ‘not used in computing the
criminal history category (e.g., sentences for foreign and tribal offenses).’” United
States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir. 2011) (quoting U.S.S.G. §
4A1.3(a)(2)(A)). “The court is also free to ‘weigh the similarity of past offenses to
the instant offense, and the possibility that repeated offenses of a similar nature
indicate a heightened need for deterrence.’” Id. at 1037-38 (quoting United States v.
Mentzos, 462 F.3d 830, 841 (8th Cir. 2006)).

       Under § 4A1.3, the district court “first must proceed along the criminal history
axis of the sentencing matrix, comparing the defendant’s criminal history with the
criminal histories of other offenders in each higher category. . . .” United States v.
Azure, 536 F.3d 922, 931 (8th Cir. 2008) (internal quotations omitted). “This process
does not ‘require a ritualistic exercise in which the sentencing court mechanically
discusses each criminal history category it rejects en route to the category it selects.’”
Id. (quoting United States v. Day, 998 F.2d 622, 625 (8th Cir. 1993)).

      At sentencing, the district court recited Jackson’s lengthy criminal history,
which included a federal conviction in which he was assigned three criminal history
points for striking a person in the head with a steel pipe, an assault and battery
conviction in 1987, a domestic abuse conviction in 1996, an assault and battery
conviction in 2004, and a domestic abuse conviction in 2005. In addition, the court
found that Jackson has had at least ten driving under the influence convictions, one



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actual physical control of a vehicle while intoxicated conviction, at least fifteen
driving under suspension or revocation convictions, twenty-six public intoxication
convictions, two other liquor violations, and has not had a valid driver’s license since
1987. The court also noted that the only time Jackson has had periods of sobriety has
been when there is “a big hammer hanging over his head.” In light of these
circumstances, the court concluded that,

      [T]he defendant’s criminal history is well-established. . . . [T]he nature
      of the offense is established and the harm is exactly the kind of harm
      that you’re trying to head off. . . . [Jackson has] a prior DUI with a minor
      in the vehicle and was sentenced and still we have this conduct. I
      believe his criminal history is substantially underrepresented and I
      would look at 4A1.3(a)(2)(A) and I would move him up actually three
      levels to Criminal History Category V.

        Jackson relies on United States v. Sullivan, 853 F.3d 475 (8th Cir. 2017) and
United States v. Azure, 536 F.3d 922 (8th Cir. 2008), in which we held that the
district court abused its discretion when it departed upward without providing
sufficient indicia of why the intermediate criminal history categories were
inappropriate. In Sullivan, the court departed upward from a criminal history
category II to a criminal history category VI, relying on conduct that had not resulted
in convictions and on state court sentences that the district court thought to have been
too lenient. 853 F.3d at 480. In Azure, the district court departed from the lowest
criminal history (I) to the highest (VI). 536 F.3d at 932. It also relied on
questionably relevant evidence (i.e. that Azure was a playground bully in elementary
school), it erred in applying the burden of proof on a self-defense charge, and it relied
on uncharged conduct that included alcohol related assaults and mutual aggression.
Id. at 931-33.




                                          -4-
       This case is not like Sullivan or Azure, however. The district court here
departed upward only three criminal history categories. It did not rely on uncharged
or irrelevant conduct, but rather grounded its decision on numerous tribal court
convictions. Additionally, unlike Azure in which we noted that the defendant’s
underlying violent conduct was potentially exacerbated by alcohol, the majority of
Jackson’s previous conduct was centered around alcohol and thus tends to show the
seriousness of his offense and a greater need for deterrence. See United States v.
Herr, 202 F.3d 1014, 1016-17 (8th Cir. 2000) (“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.” (internal
quotation and marks omitted)).

        Although the district court did not specifically mention that it had considered
each intermediate criminal history category, we conclude that it adequately explained
its rationale for the sentence imposed. See United States v. Walking Eagle, 553 F.3d
654, 658 (8th Cir. 2009) (holding that even though the district court did not explicitly
consider intermediate criminal history categories, it adequately explained an upward
departure based on the defendant’s underrepresented criminal history and his
likelihood of re-offending). After taking into account Jackson’s extensive criminal
history, his history of violence, and the repeated nature of his alcohol-related
offenses, the district court ultimately departed upwards because “[t]he maximum
penalty in this case probably [was] not sufficient to fit this particular crime” and the
public needs to be “protect[ed] from further crimes of the defendant.” We thus
conclude that no procedural error occurred at sentencing and that the district court’s
otherwise adequate explanation for departing upward was not undercut by its lack of
mention that it had moved incrementally up the Guidelines range to find an
appropriate advisory sentence.




                                          -5-
        We similarly reject Jackson’s argument that the district court imposed a
substantively unreasonable sentence by failing to appropriately weigh the sentencing
factors set forth in 18 U.S.C. § 3553(a). Jackson contends that the district court gave
too little weight to his efforts towards rehabilitation, his need to continue
rehabilitative treatment, the adverse consequences to his continuing self-rehabilitation
and his restitutionary efforts that would stem from a lengthy prison sentence, and that
it was Jackson’s speed—not his reaction time—that caused the accident. At
sentencing, however, the district court acknowledged that Jackson’s post-incident
sobriety gave reason to hope for his continued sobriety and that it would take into
consideration Jackson’s argument that his braking reflexes were not greatly
diminished. Against those mitigating factors, however, the district court weighed the
fact that Jackson knew his actions were illegal but chose to drive well over the speed
limit while intoxicated and without a license. It also found that “[Jackson] still poses
a genuine risk to the community because we still don’t have an indication that he’s
going to be able to maintain sobriety if he doesn’t have some huge consequence
hanging over his head.” See United States v. Grace, No. 17-1572, 2018 WL
3080301, at *1 (8th Cir. June 20, 2018) (concluding that repeated behavior following
prior convictions justifies an upward variance “to afford adequate deterrence”
(quoting § 3553(a)(2)(B))). Having articulated its consideration of the § 3553(a)
factors adequately and balanced them appropriately, the district court did not abuse
its discretion in sentencing Jackson as it did. See United States v. Gasaway, 684 F.3d
804, 808 (8th Cir. 2012) (holding that the district court may balance the § 3553(a)
factors as it deems appropriate).

      The judgment is affirmed.
                     ______________________________




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