                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2875
                                   ___________

United States of America,                 *
                                          *
             Appellant,                   *
                                          *   Appeal from the United States
      v.                                  *   District Court for the
                                          *   District of Minnesota.
Todd Douglas Miller,                      *
                                          *
             Appellee.                    *

                                   ___________

                             Submitted: February 13, 2007
                                Filed: May 2, 2007
                                 ___________

Before O'CONNOR, Associate Justice (Ret.),1 WOLLMAN, and SMITH, Circuit
      Judges.
                              ___________

SMITH, Circuit Judge.

       Todd D. Miller pleaded guilty to aiding and abetting possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C.
§ 2. The district court determined that Miller's Guidelines range was 37 to 46 months'
imprisonment but imposed a sentence of three years' probation, with conditions,



      1
       The Honorable Sandra Day O'Connor, Associate Justice, Supreme Court of the
United States (Ret.), sitting by designation.
including that Miller be confined to home detention for the first 12 months. The
government appeals the sentence. We reverse.

                                    I. Background
       Miller was actively involved in a cocaine distribution conspiracy on Indian
reservations and other communities in northern Minnesota. On June 17, 2005, Miller
was arrested and ordered detained in connection with a three-count federal indictment.
On February 1, 2006, Miller pleaded guilty, pursuant to a plea agreement, to aiding
and abetting possession with intent to distribute cocaine. The plea agreement
stipulated that Miller possessed 26.4 grams of cocaine seized from his vehicle on one
occasion, that he intended to distribute the drugs, and that he knew his actions were
unlawful. The plea agreement further stipulated that Miller had possessed and
distributed between 500 and 2,000 grams of cocaine during his involvement in the
conspiracy. In exchange for Miller's guilty plea, the remaining two counts in the
indictment were dismissed. On March 1, 2006, Miller was released on bond, prior to
sentencing. At the time of his release, Miller had spent approximately eight and one-
half months in pretrial detention.

       At sentencing, the district court determined that Miller's Guidelines range was
37 to 46 months based upon an adjusted offense level of 21 and a criminal history
Category I. The court then varied downward to sentence Miller to three years'
probation, with conditions, including that Miller be confined to home detention for the
first 12 months.2 The court fully explained its justifications for the sentence in a five-
page Statement of Reasons filed with the sentencing judgment. In the Statement of




      2
       In addition to the home detention and the typical probation conditions such as
mandatory drug testing, the court also conditioned Miller's probation on him
continuing to take and successfully complete college courses in pursuit of an
associate's degree.

                                           -2-
Reasons, the court noted that post-Booker3 the Guidelines were no longer mandatory,
but that the court was nonetheless required to take into account the applicable
Guidelines range and the pertinent Sentencing Commission policy statements to
impose a sentence sufficient, but not greater than necessary, to comply with the
sentencing purposes set out in 18 U.S.C. § 3553(a). The court further noted that it
must:

      consider[] the nature and circumstances of the offense and the history
      and characteristics of the defendant; the kinds of sentences available; the
      need to avoid unwarranted sentencing disparities among defendants with
      similar records who have been found guilty of similar conduct; and the
      need to provide restitution to any victims of the offense.

       The district court based the sentence of three years' probation on the following
factors: (1) the sentence was sufficient to carry out the court's purposes in sentencing
as stated in § 3553(a); (2) the sentence would adequately punish and deter Miller from
committing future crimes; (3) Miller had already spent almost nine months in custody
before being released on bond; (4) Miller had immediately sought and obtained
gainful employment upon his release, which demonstrated his commitment to future
achievements; (5) Miller had shown great respect for the court's orders by obtaining
tribal membership, as previously ordered by the court; (6) Miller had obtained his
GED since his arrest; (7) since being released on bond, Miller had enrolled in college
courses; (8) Miller displayed remorse for his crime and respect for the laws he
violated; (9) Miller would present little risk to the general public because he would be
supervised through home monitoring systems; (10) Miller had a difficult childhood;
(11) Miller had accepted full responsibility for his actions; (12) Miller had one child
at home and another on the way, and the court believed the public would benefit from
keeping Miller at home with his children; and (13) Miller had the family support to
assist him in remaining law-abiding and making appropriate decisions for himself and


      3
       United States v. Booker, 543 U.S. 220 (2005).

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his family. The court emphasized that it had taken all of these factors into
consideration, placing particular significance on Miller's achievements since his arrest
(GED, employment, college, tribal membership, etc.) and the fact that he had already
served almost nine months for the offense, and determined that a sentence of three
years' probation was reasonable.

       The government appeals, arguing that the sentence is unreasonable because the
district court failed to give significant weight to certain relevant factors, gave too
much weight to other relevant factors, and gave significant weight to improper factors.
We reverse.

                                     II. Discussion
       Neither party contests the district court's calculation of the Guidelines range.
The government appeals only the variance from the 37 to 46 months Guidelines range
to the sentence imposed. "When there is no dispute about the applicable guideline
range, the issue we examine on appeal is whether the sentence imposed is 'reasonable'
in light of the factors articulated in 18 U.S.C. § 3553(a)." United States v.
Gonzalez-Alvarado, 477 F.3d 648, 650 (8th Cir. 2007) (quoting United States v.
Bryant, 446 F.3d 1317, 1319 (8th Cir. 2006)). A sentence within the Guidelines range
is presumptively reasonable. United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.
2006), cert. granted, ___ U.S. ____, 127 S. Ct. 551, 166 L.Ed.2d 406 (2006).
Sentences outside of the Guidelines range are reasonable as long as the judge offers
appropriate justifications under the factors in § 3553(a). Gonzalez-Alvarado, 477 F.3d
at 650 (citing Claiborne, 439 F.3d at 481). However, such a sentence:

      may be unreasonable if a sentencing court fails to consider a relevant
      factor that should have received significant weight, gives significant
      weight to an improper factor or irrelevant factor, or considers only
      appropriate factors but nevertheless commits a clear error of judgment
      by arriving at a sentence that lies outside the limited range of choice
      dictated by the facts of the case.

United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006).

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       In reviewing the sentence, we must determine: (1) "whether the district court's
decision to grant a § 3553(a) variance from the appropriate guidelines range is
reasonable" and (2) "whether the extent of any § 3553(a) variance . . . is reasonable."
United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005). Here, the government
only takes issue with the extent of the variance. As to that issue, "[t]he further the
district court varies from the presumptively reasonable guideline range, the more
compelling the justification based on the 3553(a) factors must be." Bryant, 446 F.3d
at 1319. "An extraordinary reduction must be supported by extraordinary
circumstances." Id. (citing United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.
2005)).

       The district court sentenced Miller to three years' probation, with 12 months'
in-home detention, but no imprisonment beyond time served. On its face, the
probationary sentence imposed constituted a 100% downward variance from the
Guidelines range. See United States v. Ture, 450 F.3d 352, 357 (8th Cir. 2006) (stating
that a sentence of probation but no imprisonment "amounts to a 100% variance from
the Guidelines range"). When Miller's eight and one-half months in pretrial detention
is considered, the sentence would be a 77% variance from the low end of the
Guidelines range. Whether viewed as 100% or 77%, the variance is atypical and is
greater than the Eighth Circuit has generally deemed reasonable.

       Although the district court recited the § 3553(a) factors and stated that it took
those factors into consideration in formulating the sentence imposed, the court failed
to give certain factors significant weight. The court failed to accord significant weight
to the seriousness of Miller's offense and to the need to avoid unwarranted sentencing
disparities. The sentence imposed also does not adequately promote respect for federal
drug laws, provide just punishment, or ensure adequate deterrence to drug dealers. See
U.S.C. § 3553(a)(2), (4), (6). Giving due weight to these factors, we conclude that a
sentence of eight and one-half months imprisonment with three years of
probation—much less a sentence with no term of imprisonment—is unreasonable in
this case.
                                          -5-
       First, the court did not properly weigh the seriousness of Miller's offense.
Before his arrest, Miller had been actively involved in the distribution of substantial
quantities of powder and crack cocaine on the Red Lake Indian Reservation. Miller
stipulated to voluntarily obtaining and distributing between 500 and 2,000 grams of
cocaine. The sentence of eight and one-half months "time served" plus probation is
inadequate for such a serious offense on the instant record. See Gall, 446 F.3d at 890
(finding sentence imposed inadequate considering seriousness of defendant's
involvement in drug distribution conspiracy).

       Second, the court failed to properly weigh whether the sentence would result
in unwarranted sentencing disparities. See Bryant, 446 F.3d at 1319 ("The sentencing
guidelines are indeed no longer mandatory, but they continue to be guideposts that
must be respected, lest we see a return to the unwarranted sentencing disparities that
resulted in the adoption of the guidelines themselves."). "Congress has made avoiding
unwarranted disparity a legislative priority." United States v. Lazenby, 439 F.3d 928,
933 (8th Cir. 2006). The disparity between Miller's time-served-plus-probation
sentence and the sentence of the typical defendant with a similar record who has been
convicted of similar conduct does not reflect Congress's sentencing priority. See id.

       Third, although the court stated that the sentence would "adequately punish and
deter Miller from committing future crimes," the court failed to weigh the sentence's
effect of deterring others. As "[g]eneral deterrence . . . is one of the key purposes of
sentencing, . . . the district court abused its discretion when it failed to give that matter
its proper weight." United States v. Medearis, 451 F.3d 918, 920–21 (8th Cir. 2006).

       In determining the sentence imposed, the district court placed "particular
significance" on Miller's achievements since his arrest. Such conduct is relevant in
evaluating the § 3553(a) factors. See Lazenby, 439 F.3d at 932; cf. United States v.
Kapitzke, 130 F.3d 820, 923–24 (8th Cir. 1997) (stating that atypical post-offense
rehabilitation may support guidelines downward departure). However, a defendant's
rehabilitation "cannot be allowed to trump all the other considerations listed in §
3553(a)." Medearis, 451 F.3d at 921. Miller's rehabilitation, taken together with the
                                            -6-
other relevant factors, does not justify the extent of the variance granted. While
Miller's "post-offense rehabilitation is dramatic and hopefully permanent," the
sentence imposed for Miller's involvement in the distribution of between 500 and
2,000 grams of cocaine, "lies outside the limited range of choice dictated by the facts
of the case." Lazenby, 439 F.3d at 933 (quoting United States v. Haack, 403 F.3d 997,
1004 (8th Cir. 2005)); Gall, 446 F.3d at 890. Therefore we conclude the district court
imposed an unreasonable sentence in this case.

                                   III. Conclusion
      Accordingly, we vacate the judgment of the district court and remand for
resentencing consistent with this opinion.
                       ______________________________




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