                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3276
                                   ___________

United States of America,
                                        *
              Plaintiff-Appellee,       *
                                        * Appeal from the United States
       v.                               * District Court for the Eastern
                                        * District of Missouri.
Rodger Roberson, also known             *
as Pistol, also known as P,             * [UNPUBLISHED]
also known as D,                        *
                                        *
              Defendant-Appellant.      *
                                   ___________

                             Submitted: June 8, 2009
                                Filed: June 22, 2009
                                 ___________

Before BYE, HANSEN, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Rodger Roberson appeals the district court’s1 sentence of 120 months
imprisonment following his plea of guilty to being a Felon in Possession of a Firearm
in violation of 18 U.S.C. § 922(g)(1). We affirm.




      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
                                           I

       On October 14, 2007, an off-duty police officer was driving with his girlfriend
in his personal vehicle, a Chevrolet Cavalier, in St. Louis, Missouri. As he was
stopped at a traffic light before entering Interstate 70, the police officer observed a
silver Chevrolet Tracker, operated by Roberson, approach from behind. Roberson did
not know the driver of the Cavalier was a police officer. As they entered the entrance
ramp onto Interstate 70, Roberson pulled next to the Cavalier and retrieved a .38
caliber revolver from inside the car. For no discernable reason, Roberson pointed the
revolver at the passenger window of the Cavalier and fired three times, shooting out
the passenger side window and shooting two holes in the passenger side door of the
Cavalier. Remarkably, the police officer and his girlfriend were not physically
injured. The police officer returned fire, injuring a passenger in the backseat of the
Tracker, and Roberson drove away.

      Later that morning, St. Louis police detectives were called to Barnes Jewish
Hospital for a reported gunshot victim. The victim stated that he was riding in the
backseat of a silver Chevy Tracker being operated by Roberson when he was shot.
According to the victim, he, Roberson, and two other people were returning from East
St. Louis, Illinois, and Roberson transported the revolver he used in the shooting
across state lines. Roberson apparently became belligerent at the driver of the
Cavalier, and, despite attempts by the other occupants of the car to calm Roberson
down, he shot at the Cavalier. When interviewed, the other two occupants of the car
confirmed this version of the events.

       A review of Roberson’s criminal history revealed that he has previously been
convicted in the Eastern District of Missouri of possession of a firearm with an
obliterated serial number. That conviction stemmed from an incident on May 28,
2006, when police officers attempted to arrest Roberson for traffic violations.
Roberson led the officers on a high-speed chase, which ended with Roberson crashing


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his vehicle. As the officers pulled Roberson from his vehicle, they discovered a .38
caliber revolver with an obliterated serial number. Roberson was sentenced in the
Eastern District of Missouri to ten months imprisonment and two years of supervised
release.

       Based on this prior felony conviction, Roberson was indicted with being a felon
in possession of a firearm. Following his indictment, Roberson’s supervised release
for his prior felony conviction was revoked, and he was sentenced to eighteen months
imprisonment. On July 22, 2008, Roberson pleaded guilty to the felon-in-possession
charge.       Pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 2K2.1(c)(1)(A), which requires a court to cross reference a defendant’s base offense
level if the defendant used or possessed a firearm in conjunction with another crime
for which the offense level is higher, Roberson’s base offense level was 27,
correlating with the base offense level for attempted murder. Roberson’s offense level
was adjusted down to 24 for his acceptance of responsibility. Roberson’s Criminal
History Category was IV, resulting in part from an increase because Roberson
committed the instant offense within two years of being released from his prior felony
conviction. This created a Guidelines range of 77 to 96 months imprisonment.
Roberson and the government agreed in the plea agreement to argue for a within-
Guidelines sentence to be served consecutively to the eighteen-month sentence
previously imposed for the supervised release violation.

      At sentencing, the district judge varied upward and imposed the statutory
maximum of 120 months imprisonment. The court enumerated several reasons for its
sentence:

      Usually one prior felony doesn’t like stand out, but here a prior felony
      where law enforcement officials attempting to arrest him for violating
      traffic laws results in a high speed chase which results in a traffic
      accident shows incredible disregard for the safety of law enforcement
      and other citizens . . . [A]nd within a matter of months after he is


                                         -3-
      released, he commits an act of this violent nature . . . . Protect the public,
      I mean one of the hardest things about this is the randomness of the act.
      Most crimes are not random. There are very specific victims for very
      specific reasons. Rarely do we see such a random act of violence of such
      an extreme nature.

      ...

      [H]e has both, a lack of respect for law enforcement evidenced by his
      first conviction and the total random act of violence against an ordinary
      citizen, both of which had the possibility of death, to roll a car, cause an
      automobile accident because he is leaving, fleeing, a traffic stop or to
      open fire into a random vehicle. The possibility of death for people just
      doing their job or just driving down the street is not an acceptable risk,
      and I don’t think the guidelines in this case fully took into consideration
      the nature, the short nature, of his history being as violent as it is as risky
      to law enforcement and citizens; I mean the ultimate consequence of
      losing someone’s life over what, a traffic violation. You didn’t like the
      way someone was driving.

The court also noted that one kilogram of heroin or one thousand marijuana plants
would require a mandatory minimum of 120 months imprisonment.

      Roberson now appeals, arguing the district court’s upward variance was
unreasonable.

                                            II

       We review Roberson’s sentence for an abuse of discretion and consider both
the procedural soundness and substantive reasonableness of the sentence imposed.
See United States v. Zech, 553 F.3d 663, 665-66 (8th Cir. 2009) (standard of review).
Roberson does not argue the district court committed any procedural error, only that
it imposed a substantively unreasonable sentence. We review “the ultimate sentence,
whether inside or outside the guidelines range, for reasonableness under an abuse of


                                           -4-
discretion standard.” United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.
2009). An abuse of discretion may occur “when (1) a court fails to consider a relevant
factor that should have received significant weight; (2) a court gives significant weight
to an improper or irrelevant factor; or (3) a court considers only the appropriate factors
but in weighing those factors commits a clear error of judgment.” United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (internal quotation omitted). A district
court does not automatically abuse its discretion by varying upward from the advisory
Guidelines range. In such cases, we “may consider the extent of the deviation, but
must give due deference to the district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of the variance.” Gall v. United States, 128 S. Ct. 586, 597
(2007).

       Roberson argues the district court’s rationale for varying upward was based on
the violent nature of the instant offense and his prior felony conviction, both of which
were already taken into account in calculating his Guidelines range. Additionally,
Roberson argues his sentence creates unwarranted sentencing disparities and was
based on the district court’s improper consideration of mandatory minimum sentences
for drug offenses.

       Considering the totality of the evidence, however, we conclude the district court
did not abuse its discretion in sentencing Roberson to the statutory maximum of 120
months imprisonment. The district court concluded the Guidelines did not take into
account Roberson’s violent tendencies, particularly his deliberate disregard for the
safety of others during random acts of violence. While it is true the Guidelines
accounted for the seriousness of the instant offense and Roberson’s recent conviction,
the district court did not abuse its discretion in concluding the Guidelines did not
account for the extreme, dangerous, and random nature of the acts. Specifically,
Roberson embarked on a dangerous high-speed car chase that led to his prior
conviction, and, within months of being released from prison for that offense, he
attempted to kill two people in another vehicle apparently because he was upset at the


                                           -5-
manner in which they were driving. Moreover, given the danger Roberson poses to
society, his 120-month sentence does not create unwarranted sentencing disparities
with others convicted of being a felon in possession of a firearm. Finally, although
the district court did briefly mention the mandatory minimum sentences for drug
offenses, it is clear from the record the court did not base its sentence on any improper
considerations. Rather, the court gave a lengthy explanation, excerpted above,
justifying Roberson’s sentence based on the nature of the offense and his criminal
history. In sum, we conclude the district court did not abuse its discretion in
sentencing Roberson.

                                           III

      Accordingly, we affirm.
                     ______________________________




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