                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3409
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Timothy Rush

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                          Submitted: November 16, 2015
                             Filed: January 22, 2016
                                  [Unpublished]
                                 ____________

Before SMITH, BYE, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

      Timothy L. Rush pled guilty to one count of possessing a firearm and
ammunition while an unlawful user of a controlled substance, and one count of
possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. §§
922(g)(3), 922(g)(1), and 924(a)(2). The district court1 sentenced Rush to 60 months’

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
imprisonment. Rush appeals his sentence. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

       Rush was an unlawful user of marijuana when officers patted him down and
seized from his waist a Beretta pistol (which he admitted stealing). Three years later,
officers responded to a report of a man with a gun. Rush matched the description and
fled when officers approached him. Running away, he threw down a .380 pistol
(which he admitted taking without the owner’s consent). The district court granted
an upward departure, increasing the Guideline range from 37-46 months to 57-71
months. The court sentenced Rush to concurrent 60-month sentences for each count.

       Rush asserts no procedural error. See Gall v. United States, 552 U.S. 38, 51
(2007) (the appellate court “must first ensure that the district court committed no
significant procedural error”). This court reviews “the substantive reasonableness of
the sentence [] under an abuse-of-discretion standard.” Id. An abuse of discretion
happens if a district court “(1) fails to consider a relevant factor that should have
received significant weight; (2) gives significant weight to an improper or irrelevant
factor; or (3) considers only the appropriate factors but in weighing those factors
commits a clear error of judgment.” United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (internal quotations omitted).

       Rush primarily attacks the upward departure. The Government counters that
any departure error is harmless because the district court said it would impose the
same sentence as a variance under 18 U.S.C. § 3553(a). Rush invokes United States
v. Davis, 690 F.3d 912, 929 (8th Cir. 2012), vacated, 133 S.Ct. 2852 (2013) (vacating
in light of Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013)), aff'd, 736 F.3d 783,
785 (8th Cir. 2013). In Davis, the district court failed to retroactively apply the Fair
Sentencing Act. Davis, 690 F.3d at 928. This court initially found that error harmless
because “Davis also fails to point to anything suggesting the district court would
impose a different sentence on remand.” Id. at 929. On remand from the Supreme
Court, this court again affirmed the sentence. Davis, 736 F.3d at 785. This court


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found harmless any Alleyne error because the district court did not base the sentence
on the mandatory minimum and closely analyzed the section 3553(a) factors. Id.

       Similarly here, any error in departing under the Guidelines was harmless. See
United States v. Grandon, 714 F.3d 1093, 1098 (8th Cir. 2013) (“Because we
conclude the district court did not abuse its substantial discretion in varying upward
to 132 months imprisonment, any error in alternatively imposing an upward departure
would be harmless because the district court would have imposed the same sentence
absent the error.”) (internal quotations omitted). The district court “carefully
consider[ed] each and every [section 3553(a)] factor” and varied based on Rush’s
serious criminal history, the likelihood of recidivism, and the danger to the
community. The court cited “lenient treatment by the state courts” that failed to
change Rush’s behavior, Rush’s “complete disrespect for the laws and for the
individuals who enforce the laws,” and Rush’s “usual thing” of running from police.
The court emphasized Rush’s history of possessing stolen and defaced
firearms—including a sawed-off shotgun—as well as his 14 criminal offenses as an
adult. The district court considered the nature and circumstances of the offense,
highlighting the possession of at least one stolen firearm. The district court did not
abuse its discretion in varying upward by fourteen months from the original Guideline
range of 37-46 months. See United States v. Bridges, 569 F.3d 374, 379 (8th Cir.
2009) (“The district court has wide latitude to weigh the § 3553(a) factors in each
case and assign some factors greater weight than others in determining an appropriate
sentence.”).

                                    *******

      The judgment is affirmed.
                     ______________________________




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