                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1064
                                   ___________

United States of America,               *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Clinton L. McGhee,                      *
                                        * [PUBLISHED]
            Appellee.                   *
                                   ___________

                             Submitted: September 24, 2007
                                Filed: January 16, 2008
                                 ___________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Clinton McGhee pled guilty to possession with intent to distribute more than
50 grams of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1) and
(b)(1), and possession of a firearm in furtherance of a drug-trafficking offense, in
violation of 18 U.S.C. 924(c)(1). For reasons detailed in a 19-page sentencing
memorandum, the district court* sentenced McGhee to 132 months’ imprisonment on


      *
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
the drug charge and 60 months’ imprisonment on the firearms charge, to be served
consecutively. The government appeals, arguing that the district court abused its
discretion by departing by one criminal history category under USSG § 4A1.3, that
the court impermissibly took into account its disagreement with the sentencing
guidelines for crack cocaine, see United States v. Spears, 469 F.3d 1166 (8th Cir.
2006) (en banc), vacated, No. 06-9864, 2008 WL 59232 (U.S. Jan. 7, 2008), and that
while the other reasons cited by the district court were permissible considerations
under 18 U.S.C. § 3553(a), see United States v. Lazenby, 439 F.3d 928, 933-34 (8th
Cir. 2006), this court should reverse the district court’s “extraordinary variance” from
the pre-departure guidelines range of 235 to 293 months’ imprisonment on the drug
charge, because there were not “extraordinary circumstances” to justify it. See
Appellant’s Br. 19 (citing United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.
2005)).

       After United States v. Booker, 543 U.S. 220 (2005), we review a sentence to
determine whether it is unreasonable with regard to 18 U.S.C. § 3553(a), applying a
“deferential abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 591
(2007). We conclude that whether the district court’s decision to depart downward
under USSG § 4A1.3 is considered a “procedural” aspect of “calculating the
Guidelines range,” see 128 S. Ct. at 597 (punctuation omitted), or part of
“substantive” reasonableness review, see id. at 594 (rejecting a rule that requires
“proportional” justifications for “departures” from the guidelines range), it is evident
that the district court would have reached the same outcome under § 3553(a), and
there was no abuse of discretion in concluding that McGhee’s criminal history
differed meaningfully from the active violent behavior often associated with
defendants in criminal history category VI. See Leocal v. Ashcroft, 543 U.S. 1, 11
(2004). We further conclude that the district court did not abuse its discretion in
concluding that the crack cocaine guidelines yielded a sentence “greater than
necessary” to achieve the purposes of § 3553(a). See Kimbrough v. United States, 128
S. Ct. 558, 575 (2007). The government’s argument that the sentence is unreasonably

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lenient due to the absence of “extraordinary circumstances” fails in light of Gall.
There, while highlighting that a district court has responsibility in the first instance to
provide “sufficient justifications” that “explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate,” Gall, 128 S. Ct. at 594, the
Court also rejected “an appellate rule that requires ‘extraordinary’ circumstances to
justify a sentence outside the Guidelines range.” Id. at 595. Assuming the district
court’s variance from the advisory guidelines range on the drug count could be
characterized as “extraordinary,” we understand the Court’s opinion in Gall also to
preclude a requirement of “extraordinary circumstances” to justify an “extraordinary
variance,” for that was the only type of sentence outside the guidelines range to which
this court had applied an “extraordinary circumstances” requirement. See Kimbrough,
128 S. Ct. at 578 (Thomas, J., dissenting) (“Today in Gall v. United States, the Court
holds that a Court of Appeals may not require sentences that deviate substantially
from the Guidelines range to be justified by extraordinary circumstances.”). Applying
the “deferential abuse-of-discretion standard” described in Gall, and abiding by Gall’s
direction to refrain from “proportionality review,” we affirm the judgment of the
district court. See Gall, 128 S. Ct. at 597 (“The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.”).
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