                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2836
                                   ___________

United States of America,             *
                                      * Appeal from the United States
           Plaintiff - Appellee,      * District Court for the
                                      * Eastern District of Missouri.
     v.                               *
                                      *
Dan Kendall,                          *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: February 17, 2006
                                 Filed: May 2, 2006
                                  ___________

Before BYE, HEANEY, and MELLOY, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Dan Kendall appeals his sentence by arguing both the district court improperly
failed to apply the correct guidelines and the sentence is unreasonable. We reverse
and remand for resentencing.

                                          I

      Kendall pleaded guilty to knowingly possessing equipment, chemicals,
products, and materials used to manufacture methamphetamine in violation of 21
U.S.C. § 843(a)(6). He was originally sentenced to eighty-four months imprisonment
under the United States Sentencing Guidelines (U.S.S.G.) based on his Career
Offender status. His Career Offender designation was based on a prior conviction for
distribution of methamphetamine and a prior felony conviction for driving while
intoxicated.

      Kendall previously appealed the application and constitutionality of the
sentence. After his first sentencing, we decided United States v. Walker, 393 F.3d 819
(8th Cir. 2005), and United States v. McCall, 397 F.3d 1029 (8th Cir. 2005), which
held the crime driving while intoxicated was not a crime of violence—and thus
Kendall did not qualify as a career offender under U.S.S.G. § 4B1.1.1 We remanded
for resentencing. On remand, Kendall received the same sentence, eighty-four
months. Kendall appeals.

                                           II

       We review a decision to depart upward under the advisory guidelines for an
abuse of discretion. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).
The ultimate sentence is reviewed for reasonableness. United States v. Booker, 125
S.Ct. 767 (2005). We have likened post-Booker reasonableness review to the abuse
of discretion standard of review. United States v. Rogers, 423 F.3d 823, 829 (8th Cir.
2005).



      1
        Since then the court, sitting en banc, reconsidered McCall and held the felony
crime of driving while intoxicated can be a crime of violence. See United States v.
McCall, 439 F.3d 967 (8th Cir. 2006) (en banc). It is unclear from the state of the
record before us whether Kendall’s felony conviction for driving while intoxicated
qualifies as such. See McCall, 439 F.3d 967 (distinguishing between driving and
operating a motor vehicle, noting the Supreme Court of Missouri has construed the
Missouri DWI statutory term “operates” to include both driving a vehicle and merely
causing the vehicle to function by starting its engine, the latter of which does not risk
physical harm to others).

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                                          A

       Kendall first argues the district court improperly failed to determine whether
a traditional departure was available under U.S.S.G. § 4A1.3. He argues the district
court circumvented the policy of calculating whether an upward departure was
warranted under § 4A1.3 by instead varying upwards based on 18 U.S.C. § 3553(a).
See United States v. Haack, 403 F.3d 997, 1002-1003 (8th Cir. 2005) (“[T]he
sentencing court must first determine the appropriate guidelines sentencing range, .
. . Once the applicable range is determined, the court should then decide if a
traditional departure is appropriate under Part K and/or § 4A1.3 of the Federal
Sentencing Guidelines. Those considerations will result in a ‘guidelines sentence.’
Once the guidelines sentence is determined, the court shall then consider all other
factors set forth in § 3553(a) to determine whether to impose the sentence under the
guidelines or a non-guidelines sentence.”).

       Kendall’s argument is without merit. Kendall cites no authority for the
proposition a sentencing court is not entitled to vary upwards under § 3553(a) despite
failing to depart upwards under § 4A1.3. Cf. United States v. Shannon, 414 F.3d 921,
923 (8th Cir. 2005) (“Since Booker, we have explained that in imposing sentence
under the new regime, a district court should determine the advisory guideline
sentencing range, . . . [including] any appropriate departures from the guidelines. . .
. [and] also may vary from the advisory guideline range based on the factors set forth
in § 3553(a), so long as such a variance is reasonable.” (citations omitted)).

                                          B

       Kendall next argues his sentence was unreasonable under § 3553(a). He notes
the advisory range was twenty-seven to thirty-three months given his total offense
level of twelve with, assuming he is not a career offender, his eleven criminal history
points and thus criminal history category V. Nonetheless, he was sentenced to eighty-

                                         -3-
four months, an increase of 155%, or more than eight offense levels, from the
maximum guidelines range. This increase is “extraordinary.” See United States v.
Enriquez, 205 F.3d 345, 348 (8th Cir.2000) (observing a fifty percent downward
departure was an “extraordinary” sentence reduction) (cited in, e.g., United States v.
Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005)).

       An extraordinary departure “must be supported by extraordinary
circumstances.” United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). The
district court focused on the seriousness of methamphetamine manufacture and
Kendall’s criminal record in varying upwards. To the extent the district court
discussed the seriousness of methamphetamine manufacture, there is nothing which
sets Kendall’s case apart from any other methamphetamine case. Moreover, as the
district court noted, he was “low on the chain” and not actually involved in
methamphetamine manufacture.

        Regarding Kendall’s criminal record: at 17, he was convicted of second degree
burglary and stealing; at 22, he was convicted of careless driving and driving while
impaired; at 29, he was convicted of driving while intoxicated; at 30, he was convicted
of driving while intoxicated; at 32 he was convicted of the felony driving while
intoxicated (persistent offender) and misdemeanor possession of a controlled
substance. This is not the type of extraordinary record to justify an extraordinary
variance. Cf. United States v. Shannon, 414 F.3d 921, 924 (8th Cir. 2005) (upholding
a sentence of fifty-eight months when the defendant had an advisory guideline range
of six to twelve months because the defendant possessed a seriously under-represented
criminal history).

      A review of the 18 U.S.C. § 3553(a) factors demonstrate no extraordinary
circumstances exist here; the facts of this case do not warrant such a substantial
upward variance. Thus, the district court erred in sentencing Kendall to eighty-four
months imprisonment.

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                                 III

For the foregoing reasons, we reverse and remand for resentencing.
                ______________________________




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