                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3665
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                 Quentin L. Posey

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                         Submitted: November 11, 2019
                           Filed: February 12, 2020
                                [Unpublished]
                                 ___________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

PER CURIAM.

      Following the entry of his guilty plea to two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the
district court1 sentenced Quentin L. Posey to 192 months imprisonment. Posey
appeals, arguing the district court imposed a substantively unreasonable sentence.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I.

        In October 2016, Kansas City, Missouri police officers stopped a vehicle in
which Posey was a passenger. Upon exiting the vehicle, a firearm fell from Posey’s
pant leg. The officers also found 35 grams of marijuana, a digital scale, and several
sandwich bags near Posey’s seat. Posey was charged with being a felon in possession
of a firearm and was released on bond. In December 2016, while out on bond, Posey
was arrested as a suspect in a homicide investigation. At the time of this arrest, Posey
was in possession of a firearm, 28 grams of marijuana, and a digital scale. On
December 15, 2016, a superseding indictment charged Posey with two counts of
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). In March 2018, Posey pled guilty to both counts.

       The presentence report (PSR) calculated a base offense level of 14 and applied
a four-level enhancement pursuant to USSG § 2K2.1(b)(6)(B) for possession of a
firearm in connection with the felony offense of marijuana distribution. Because
Posey committed additional offenses on pretrial release, the PSR did not recommend
a reduction for acceptance of responsibility. The PSR calculated Posey’s criminal
history category as Category IV based on several prior convictions, including one for
theft of public property. This conviction stemmed from Posey’s involvement in a
scheme, while serving in the United States Marine Corps, in which he diverted travel
reimbursement payments into his own account. For this conviction, Posey was
sentenced to 15 months imprisonment and 3 years of supervised release, which was


      1
       The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.

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later revoked after several supervised release violations. During the same year as his
theft conviction, Posey was also convicted in North Carolina state court of being an
accessory after the fact to both armed robbery and second degree kidnapping. He
received a 15 to 18 month sentence for these convictions. In addition to these felony
convictions, Posey has several misdemeanor convictions, including convictions for
resisting a public officer, assault, and child abuse. Based on Posey’s offense level
and criminal history score, the PSR calculated his United States Sentencing
Guidelines range as 41 to 51 months imprisonment for each count. After adopting
the Guidelines calculation, the district court varied upward and sentenced Posey to
two consecutive terms of 96 months imprisonment for a total of 192 months. This
appeal of the 192-month sentence followed.

                                           II.

       Posey argues the district court imposed a substantively unreasonable sentence
because the nature of the instant offenses did not warrant such a significant upward
variance, the Guidelines range properly accounted for his criminal history, and there
were serious mitigating factors. “We review a sentence for substantive
reasonableness by applying an abuse-of-discretion standard.” United States v.
Moore, 565 F.3d 435, 437-38 (8th Cir. 2009). “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. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). We presume
a sentence is substantively reasonable if it is within the Guidelines range, but we do
not presume a sentence is unreasonable if it is outside the Guidelines range. Rita v.
United States, 551 U.S. 338, 354-55 (2007). “If [the district judge] decides that an
outside-Guidelines sentence is warranted, he must consider the extent of the deviation
and ensure that the justification is sufficiently compelling to support the degree of the
variance.” Gall v. United States, 552 U.S. 38, 50 (2007).

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       While the district court imposed a significant upward variance from Posey’s
Guidelines range, its justifications for doing so were sufficiently compelling to
support the variance. In light of Posey’s criminal history, the district court cited the
need to promote respect for the law, provide deterrence, and protect the public as
justifications for the variance. Nevertheless, Posey asserts that the extent of the
variance was not justified because the Guidelines range accounted for the vast
majority of Posey’s extensive criminal history. However, our case law “does not
prohibit courts from determining that the weight the Guidelines assigned to a
particular factor was insufficient, but rather counsels courts to take care in doing so.”
United States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018) (per curiam) (rejecting
appellant’s reliance on United States v. Martinez, 821 F.3d 984 (8th Cir. 2016), to
argue that the court could not consider offense conduct, accounted for by the
Guidelines, in varying upward). “Indeed, we have stated repeatedly that factors that
have already been taken into account in calculating the advisory Guidelines range can
nevertheless form the basis of a variance.” Id. (internal quotation marks omitted).

       Here, in varying upward, the district court relied on factors not fully accounted
for by the Guidelines. See id. (finding variance “[wa]s supported by factors not
accounted for, either in full or in part, by the Guidelines”). In particular, the court
considered the fact that Posey committed his second felon-in-possession offense
while on pretrial release for the first felon-in-possession offense. The Guidelines
partially accounted for this second offense because the PSR denied Posey an
acceptance of responsibility reduction due to the fact he committed the second
offense while on pretrial release. However, when combined with Posey’s various
supervised release violations and resisting a public officer convictions, the district
court was justified in concluding that the denial of the reduction did not fully account
for the seriousness of the second offense, which demonstrated a continued lack of
respect for the law and public safety. Further, the district court considered the
leniency that Posey had been afforded when sentenced for his prior felony
convictions. For each conviction, Posey was sentenced to less than 2 years

                                          -4-
imprisonment. Based on the length of these sentences and Posey’s subsequent
commission of new offenses, the district court was justified in concluding Posey had
not been effectively deterred by his previous sentences.

       Posey also argues that the district court failed to weigh properly the nature of
the instant offenses and the mitigating factors. However, the sentencing transcript
demonstrates that the district court considered the nature of the felon-in-possession
offenses as well as Posey’s background. Notwithstanding these factors, the district
court found more significant Posey’s criminal history, which includes the special
circumstances noted above. “While the district court clearly ‘assign[ed] . . . greater
weight’ to [Posey’s criminal history] than it did to other factors, under § 3553(a), it
had ‘wide latitude’ to do so.” United States v. Wisecarver, 911 F.3d 554, 558 (8th
Cir. 2018) (first alteration and omission in original) (quoting United States v.
Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). We conclude that the district court did
not abuse its discretion in imposing a 192-month sentence.

      The judgment is affirmed.
                     ______________________________




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