                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-4268
                                  ___________

United States of America,              *
                                       *
           Plaintiff - Appellant,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of South Dakota.
Kendall Myron Robinson,                *
                                       *
           Defendant - Appellee.       *
                                  ___________

                             Submitted: May 15, 2006
                                 Filed: July 20, 2006
                                 ___________

Before, LOKEN, Chief Judge, MELLOY and COLLOTON, Circuit Judges.
                              ___________

MELLOY, Circuit Judge.

       Kendall Robinson pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court calculated the advisory
sentencing Guidelines range to be 63 to 78 months. After considering the factors
enumerated in 18 U.S.C. § 3553(a), the district court sentenced Robinson to 5 years
probation, a $7,500 fine, and a $100 special assessment. The government timely
appealed the sentence as unreasonable under United States v. Booker, 543 U.S. 220
(2005). We reverse.
                                           I.

       Robinson conceded that he was a convicted felon in possession of a shotgun
while hunting in October 2004. He was hunting on his own property with a valid
hunting license. Robinson pled guilty and was sentenced by the district court.
Following our instructions on how to engage in sentencing post-Booker, the district
court first correctly calculated Robinson’s advisory Guidelines sentence range and
then considered the other 18 U.S.C. § 3553(a) factors.

       Under the United States Sentencing Guidelines, Robinson’s base offense level
was 24. U.S.S.G. § 2K2.1(a)(4). Robinson maintained his plea of not guilty until the
day of trial. As a result, he received a two-level reduction for acceptance of
responsibility, rather than a three-level reduction. U.S.S.G. § 3E1.1. His resulting
adjusted offense level was 22. Robinson had seven criminal history points. This
placed him in criminal history category IV. The resulting advisory Guidelines range
of 63 to 78 months imprisonment was not contested.

        At sentencing, the district court emphasized the context of the conduct that gave
rise to the possession charge. After contrasting Robinson’s conduct with that of other
defendants charged with being felons in possession of firearms, the court said, “the
conduct in this case by Mr. Robinson did not cause or threaten the harm or evil sought
to be prevented by this federal statute, 18 United States Code, Section 922(g)(1). He
did not use a firearm in an unsafe manner or any illegal fashion.”

      The court also noted the current state of Robinson’s life, including the facts that
he was engaged and gainfully employed. The court recounted Robinson’s lengthy
criminal history, but explained that his felony convictions occurred when he was a
young man and that Robinson had avoided recent criminal activity other than the
charge at issue. The court said, “I think there’s no doubt that during the last couple
of years [Robinson] has turned his life around.”

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       The crimes for which Robinson had been convicted included multiple minor
offenses as well as third-degree burglary at age nineteen, burglary and escape from
custody at age twenty, third-degree burglary, escape, aggravated assault and
possession of a firearm by a felon at age twenty-four, and third-degree burglary at age
twenty-nine. His only convictions in his thirties were reckless driving at age thirty-
two and reckless driving and attempt to elude law enforcement at thirty-three. His
only conviction in the past decade was for possession of marijuana in 2002 at age
forty-one.

        After describing the nature of the crime and Robinson’s characteristics, the
court read through the list of § 3553(a) factors. It then discussed how each applied to
Robinson. It believed that the “seriousness of the offense” weighed in favor of
Robinson. It explained that no further deterrent was required for him, that a sentence
was not necessary to protect the public from him, that incarceration was not needed
to provide him with further educational or vocational training, and that restitution was
not at issue. It further believed that the “just punishment” factor greatly weighed in
Robinson’s favor. On the other hand, the court felt that the factor of promoting
respect for the law weighed in favor of a sentence within the Guidelines range. The
court said the matter of disparate sentences for similarly situated defendants was a
“concern” for the court. On this issue, the court balanced Robinson’s criminal history
with the fact that he had committed a “technical offense.”

       The district court ultimately chose to sentence Robinson to five years probation,
rather than any incarceration. The court also imposed a mandatory $100 assessment
and the minimum $7,500 fine.

                                          II.

       “When the district court has correctly determined the Guidelines sentencing
range, as in this case, we review the resulting sentence for reasonableness, a standard

                                          -3-
akin to our traditional review for abuse of discretion.” United States v. Claiborne, 439
F.3d 479, 481 (8th Cir. 2006). “A sentencing court abuses its discretion if 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 in weighing those factors.”
United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005) (citing United
States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).

       Although the sentencing Guidelines are no longer mandatory, the advisory
sentencing range produced by a correct application of the Guidelines is presumptively
reasonable. Claiborne, 439 F.3d at 481. “[T]he farther the district court varies from
the presumptively reasonable guidelines range, the more compelling the justification
based on the § 3553(a) factors must be.” United States v. McMannus, 436 F.3d 871,
874 (8th Cir. 2006) (citing United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.
2005) (“An extraordinary [sentencing] reduction must be supported by extraordinary
circumstances.”)).

       There is no question that the reduction in this case was substantial. The lower
end of the advisory sentencing range was 63 months, but the sentence imposed
required no incarceration. Robinson urges us to consider cases involving felons in
possession of firearms where we affirmed sentences significantly less than the
advisory sentencing ranges. In United States v. White Buffalo, 10 F.3d 575, 577 (8th
Cir. 1993), we affirmed a downward departure to probation where the low end of the
Guidelines range was 18 months. In United States v. One Star, 9 F.3d 60 (8th Cir.
1993), we affirmed a downward departure to probation where the low end of the
Guidelines range was 33 months. Id. at 61-62. However, in One Star, we stated that
“the district court’s decision to depart and the extent of its departure no doubt
approach the outer limits of its sentencing discretion under the Guidelines . . . .” Id.
at 62.



                                          -4-
      We recognize that pre-Booker departures and post-Booker variances are not the
same. As Booker made clear, the Guidelines are just one of the § 3553(a) factors to
be considered in determining a reasonable sentence. There may well be cases that
would not justify a departure under the Guidelines but which are appropriate for a
variance. Likewise, there may be cases in which a combination of a Guidelines
departure and other § 3553(a) factors may produce a lower reasonable sentence than
a departure alone.

       Under the district court’s analysis, this case falls in the latter category. That is,
under the One Star and White Buffalo precedent, a departure would be justified.
However, the extent of the variance in this case is much greater than the degree of
departure in One Star which we said was approaching the outer limit. In One Star, the
court departed downward twelve levels. Id. at 61. Here, the difference between the
sentence and the advisory range is akin to a minimum departure of nineteen levels.
In this case, we cannot identify other § 3553(a) factors that would justify such an
extraordinary variance beyond the departures approved in White Buffalo and One
Star. The factors identified by the district court are essentially the same as those
factors used to justify the departures in those cases.

       The district court stated that Robinson had a “terrible” criminal history and that
“it could be argued that his criminal history category is actually higher than a IV.”
However, the court did not give sufficient weight to this criminal history in imposing
the sentence. The court instead focused primarily on Robinson’s conduct in the past
few years. Even in cases where a rehabilitation is “dramatic and hopefully
permanent” a district court cannot place too much emphasis on that fact. United
States v. Gall, 446 F.3d 884, 890 (8th Cir. 2006) (citing United States v. Lazenby, 439
F.3d 928, 933 (8th Cir. 2006) (quoting Haack, 403 F.3d at 1004)).

      The district court also failed to give sufficient weight to the issue of disparate
sentences for the same criminal conduct. While a sentence below the range of 63 to

                                            -5-
78 months for Robinson may be warranted, as in White Buffalo and One Star,
imposing only probation in this case creates a sentencing disparity even when
compared to those prior cases where leniency was granted.

       The variance in this case is greater than the variance in United States v.
Medearis, — F.3d —, 2006 WL 1736387 (8th Cir. June 27, 2006), of which we
disapproved. As in this case, the defendant in Medearis was convicted of a § 922(g)
violation. The district court granted a variance from an advisory Guidelines range of
46 to 57 months imprisonment and imposed 5 years probation. Our court reversed,
emphasizing that the district court failed to give proper weight to the seriousness of
the offense and the requirement to avoid unwarranted sentencing disparities among
defendants found guilty of similar conduct. Id. at *2. The district court similarly
erred in this case by not giving those factors sufficient weight.

       We also find that the district court gave undue weight to the fact that Robinson
was hunting with the firearm at issue. Although Robinson did not engage in
“unlawful use” of the firearm, the statute under which he was charged does not require
any use. His possession alone was unlawful. The Sentencing Commission has
recognized that some felons who are in possession of firearms solely for “lawful
sporting purposes” are entitled to reduced sentences. U.S.S.G. § 2K2.1(b)(2).
However, the Sentencing Commission specifically denied such relief to felons like
Robinson who have two or more felony convictions for crimes of violence. Id. §
2K2.1(a)(1), (b)(2).

      We do not assert that a variance from the advisory Guidelines range would be
inappropriate in this case. A sentence varying from the Guidelines range may be
reasonable so long as the sentencing judge offers appropriate justification using the
§ 3553(a) factors. United States v. Lazenby, 439 F.3d 928, 932 (8th Cir. 2006). We
hold only that the extraordinary variance of imposing probation when the low end of
the advisory range is 63 months “is not supported by comparably extraordinary

                                         -6-
circumstances.” Id. (finding unreasonable a sentence of 12 months and 1 day when
the low end of the advisory range was 70 months and a similarly situated co-
conspirator was sentenced to 87 months).

                                        III.

      For the foregoing reasons, we remand to the district court for re-sentencing.
                      ______________________________




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