                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3946
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Phillip Bradley Sadler

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                              Submitted: May 8, 2017
                                Filed: July 25, 2017
                                    [Published]
                                  ____________

Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

PER CURIAM.

      Following the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015), the district court1 resentenced Phillip Bradley Sadler to an


      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
above-Guidelines range sentence of 102 months’ imprisonment for being a felon in
possession of a firearm. On appeal, Sadler argues that the district court considered an
improper sentencing factor when it commented that although “Sadler does not
technically qualify as an armed career criminal, . . . he is exactly the type of defendant
that Congress had in mind when it passed the [Armed Career Criminal Act (ACCA)].”
We affirm.

                                    I. Background
        Sadler was charged in a one-count indictment with being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). He entered into a plea agreement
with the government in which he agreed that he was subject to the ACCA’s sentence-
enhancing penalties. See 18 U.S.C. § 924(e)(1). At sentencing, the district court
classified Sadler as an armed career criminal and sentenced him to 180 months’
imprisonment.

       Shortly thereafter, the Supreme Court held in Johnson that the ACCA’s
residual clause is unconstitutionally vague. 135 S. Ct. at 2557. Because of Johnson,
Sadler’s prior conviction for fleeing a peace officer in a motor vehicle no longer
qualified as a predicate violent felony for purposes of the ACCA. As a result, Sadler
no longer had three predicate felonies and was not an armed career criminal. In
Sadler’s appeal of his 180-month sentence, the government conceded Johnson error
and moved to remand the case for resentencing. We granted that motion.

         At resentencing, the district court calculated an advisory Guidelines range of
63 to 78 months’ imprisonment. The government sought a sentence at the high end
of the Guidelines range, stating that “the upper end of the guidelines range
is . . . appropriate at least as a beginning point when it comes to . . . an applicable
sentence in this case.” After hearing from the parties, reviewing the case filings, and
considering the presentence report, the district court imposed an above-Guidelines
sentence of 102 months’ imprisonment.

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       The court arrived at this sentence after “consider[ing] all of the Section 3553(a)
factors, including the nature and circumstances of the offense and the history and
characteristics of the defendant.” The court justified the upward variance based on
Sadler’s “very long and . . . very violent criminal history,” noting that this is “his
ninth felony conviction and his 27th overall conviction as an adult.” The court
pointed out that “[m]any of his convictions have involved him endangering or
threatening to endanger the lives of others.” But “[b]ecause of the highly artificial
way that the ACCA is now applied,” the court commented that “Sadler does not
technically qualify as an armed career criminal” despite being “exactly the type of
defendant that Congress had in mind when it passed the Act.” The court noted the
lack of “impact” that “[n]umerous jail sentences, including a sentence of 72 months,
and numerous terms of court supervision” have had on Sadler.

       Although the court acknowledged the “terrible tragedy” that Sadler
experienced “as a young teenager when he found his father’s body after his father had
taken his own life” and Sadler’s struggles “with significant mental, emotional, and
substance abuse problems,” the court found it time for Sadler to “take responsibility
for his own decisions.” Because Sadler had done so poorly on supervision in the past
and because the court saw “no evidence that a lower sentence would do anything
except expose the public to more danger,” the court did “not believe that a sentence
below 102 months would be adequate to protect the public or to accomplish the other
objectives of 3553(a), particularly in light of the failure of multiple prior prison
sentences.”

                                 II. Discussion
      On appeal, Sadler argues that the district court considered an improper
sentencing factor when it commented that although “Sadler does not technically
qualify as an armed career criminal, . . . he is exactly the type of defendant that
Congress had in mind when it passed the [ACCA].”



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       “We review a district court’s sentence in two steps: first, we review for
significant procedural error; and second, if there is no significant procedural error, we
review for substantive reasonableness.” United States v. O’Connor, 567 F.3d 395,
397 (8th Cir. 2009). We review for an abuse of discretion the substantive
reasonableness of a sentence. Id. “A district court abuses its discretion and imposes
an unreasonable sentence when it fails to consider a relevant factor that should have
received significant weight; gives significant weight to an improper or irrelevant
factor; or considers only the appropriate factors but commits a clear error of
judgment.” Id. (quoting United States v. Saddler, 538 F.3d 879, 890 (8th Cir. 2008)).

       Sadler does not expressly characterize the district court’s consideration of an
allegedly improper factor as a procedural error or as a substantive challenge to his
sentence. “We recognize the existence of a . . . line of authority that categorizes a
district court’s consideration of an allegedly improper or irrelevant factor as a
procedural error rather than a challenge to substantive reasonableness.” Id. at 397 n.3.
Even if we construe Sadler’s objection to his sentence as procedural error, we would
review it only for plain error because Sadler did not raise this objection during
sentencing. Id. at 397. “Plain error is an error that is plain and that affects a
defendant’s substantial rights.” Id. Only if the plain error “seriously affects the
fairness, integrity or public reputation of judicial proceedings” will we correct the
error. Id. (quoting United States v. Roundtree, 534 F.3d 876, 878 (8th Cir. 2008)).

       Here, we find no error, plain or otherwise, in the district court’s imposition of
Sadler’s 102-month sentence, nor do we find the sentence substantively unreasonable.
Contrary to Sadler’s claim, the district court did not indicate that it was using the
ACCA as the basis for its decision. Instead, the record shows that the driving force
behind Sadler’s sentence was his “very long and . . . very violent criminal history,”
“the failure of multiple prior prison sentences . . . to have any appreciable deterrent
effect on Mr. Sadler,” and the need to protect the public from Sadler. The district
court was permitted to conclude that the Guidelines did not adequately account for

                                          -4-
Sadler’s prior criminal history or likelihood to reoffend. See United States v. Barrett,
552 F.3d 724, 726 (8th Cir. 2009) (“Section 3553(a) allows courts to vary upward
based on an underrepresented criminal history or recidivism.”).

       As to the district court’s ACCA reference, the court correctly
recognized—consistent with Johnson—that Sadler did not “technically qualify as an
armed career criminal.” The district court’s passing remark that Sadler “is exactly the
type of defendant that Congress had in mind when it passed the Act” did not
undermine this recognition. Prior to Johnson, Sadler’s Guidelines range under
§ 4B1.4 (Armed Career Criminal) was 188 to 235 months’ imprisonment. The district
court’s imposition of the 102-month sentence did not attempt to match the prior
Guidelines range. As a result, we conclude that “the remark’s effect on the ultimate
sentence was negligible.” United States v. Wrice, 855 F.3d 832, 832 (8th Cir. 2017)
(per curiam).

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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