                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                ________________

                                     05-1617
                                ________________

United States of America,                 *
                                          *
             Appellant,                   *
                                          *       Appeal from the United States
      v.                                  *       District Court for the Southern
                                          *       District of Iowa.
Jeffrey Allen McDonald,                   *
                                          *
             Appellee.                    *

                                ________________

                            Submitted: December 12, 2005
                                Filed: September 5, 2006
                                ________________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Jeffrey Allen McDonald (“McDonald”) pled guilty to two counts of attempting
to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)
and one count of creating a substantial risk of harm to human life while manufacturing
a controlled substance in violation of 21 U.S.C. § 858. After calculating an advisory
United States Sentencing Commission Sentencing Guidelines sentencing range of 262
to 327 months, the district court sentenced McDonald to 132 months’
imprisonment—12 months longer than the statutory mandatory minimum
sentence and roughly 50 percent below the guidelines sentencing range. The
Government appeals. We remand for resentencing.

I.    BACKGROUND

        On January 2, 2004, law enforcement officers arrested McDonald after
discovering that he was operating a methamphetamine lab in a crowded residential
trailer park. On April 19, 2004, McDonald was arrested again. This time, during a
traffic stop, police found him in possession of drug paraphernalia and materials
necessary to manufacture methamphetamine. A subsequent search of McDonald’s
residence yielded additional methamphetamine manufacturing materials. McDonald
faced state charges in Iowa following each arrest.

       The state charges against McDonald were dismissed when a federal grand jury
indicted McDonald in connection with his January and April 2004 arrests. In the
district court, McDonald admitted his January 2004 offense and pled guilty to one
count of attempting to manufacture methamphetamine.                  Because his
methamphetamine lab created a serious risk of explosion in the crowded trailer park,
McDonald also pled guilty to one count of creating a substantial risk to human life
while manufacturing a controlled substance. Related to his April 2004 arrest,
McDonald pled guilty to a second count of attempting to manufacture
methamphetamine.

       Because McDonald had previously been convicted of a felony drug offense, the
district court determined that the statutory mandatory minimum sentence for each
count of attempting to manufacture methamphetamine was ten years. 21 U.S.C. §
841(b)(1)(B). The maximum available sentence was life imprisonment. Id. Because




                                        -2-
the district court determined that McDonald was a “career offender,”1 McDonald’s
criminal history category was VI. Guidelines § 4B1.1. Because the statutory
maximum sentence for his crime was life imprisonment, McDonald’s adjusted base
offense level was 37. Id. McDonald received a three-level adjustment for acceptance
of responsibility. Accordingly, the district court determined that the total offense level
was 34. As a result, the advisory guidelines sentencing range was 262 to 327 months.2

       At McDonald’s sentencing hearing, McDonald’s brother, Rodney McDonald
(“Rodney”), testified that after McDonald was paroled from prison in 1998,
McDonald stayed off drugs, worked as a mechanic and won custody of his two
daughters. According to Rodney, in 2001, one of McDonald’s daughters was killed
in an automobile accident, and McDonald’s other daughter moved back in with her
mother. Rodney testified that McDonald began drinking again, and he suggested that
McDonald resumed his drug use. Rodney also stated that following McDonald’s
prison term for the instant offenses, McDonald’s family would be supportive, and
McDonald’s most recent employer would be willing to rehire McDonald “if he’s able
to stay off drugs.”

       Following Rodney’s testimony, the district court entertained McDonald’s
attorney’s argument that: (i) the death of McDonald’s daughter, though not “an

      1
         “A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is . . . a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of . . . a controlled
substance offense.” Guidelines § 4B1.1.
      2
        Pursuant to Guidelines § 4B1.1, every career offender’s criminal history
category is VI. As the district court noted, even without career offender status,
McDonald’s criminal history category would have been V. Had McDonald not
received a career offender enhancement, his total offense level (after an adjustment
for acceptance of responsibility) would have been 31, and his guidelines sentencing
range would have been 168 to 210 months.
                                            -3-
excuse, . . . is clearly relevant as to how Mr. McDonald got back into using meth;” (ii)
McDonald manufactured methamphetamine “primarily to feed his habit;” (iii)
McDonald’s criminal history was overstated due to the career offender enhancement;
(iv) McDonald is only 38 years old, has a “pretty good work history” and has strong
family support; and (v) McDonald began cooperating “very early on” after his arrest.
McDonald’s lawyer argued that McDonald should be sentenced to the statutory
mandatory minimum sentence of 120 months.

      McDonald testified that he had been “mistreated in the system,” he had already
served time when his probation had been revoked in 1997, and “he stayed clean”
beginning with his imprisonment in 1997 and up until his daughter died in 2001.

        After also hearing from the Government, the district court discussed factors
that, in its view, were relevant to McDonald’s sentence. The district court viewed
positively McDonald’s “employment for over a year’s period of time as well as his
skills as a welder,” finding that “when [McDonald] is not feeding his addiction, he can
compete in the private sector.” The district court considered the statement of
McDonald’s previous employer, Ms. Schulte of Schulte Construction. Schulte
Construction employed McDonald “as a mechanic and a laborer from March 17, ’02
through June 28, ’03.” Ms. Schulte told the probation office that McDonald “was an
excellent employee, he was very knowledgeable, hardworking and punctual.”
However, Ms. Schulte also “relate[d] how [McDonald’s] productivity and attendance
declined.” The district court stated that it “assume[d] this is in conjunction with his
addiction.” Ms. Schulte indicated that she might reconsider McDonald for
employment following his imprisonment, if he can stay off drugs.

       On the other hand, the district court found that McDonald was appropriately
considered a career offender, specifically disagreed with McDonald’s
“characterization of his past activity as being innocuous” and noted that McDonald’s
activities placed the public at serious risk.

                                          -4-
       The district court made several comments about McDonald’s psychological
health and drug addiction. For instance, the district court noted that McDonald had
been diagnosed with depression and was taking medication. The district court also
stated that “[s]pecific mention by me will be [made] of the Defendant’s long-time
drug dependency and psychiatric diagnoses that have been made both in the past and
in the future” and that “[t]he Defendant’s criminal history indicates that he has been
addicted to methamphetamine.” The district court concluded that it was “pretty well
convinced that the Defendant is a drug addict and has a great dependency on drugs .
. . .” Nevertheless, the district court stated that McDonald’s addiction “does not
forgive or relieve the serious implications of his drug manufacturing in this instance.”

       The district court also addressed the death of McDonald’s daughter, stating that
“[t]he personal tragedies of the Defendant have, according to the Defendant, been the
triggering event. Whether or not that’s true, and the Court is in no position to know
that, the Defendant apparently has no insight into his mental health problems, nor
apparently does his family.”

       Finally, the district court discussed an unpublished opinion from the Northern
District of Indiana, United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073
(N.D. Ind. Feb. 3, 2005). Citing a United States Sentencing Commission study
regarding recidivism,3 the district court in Nellum varied downward from the
guidelines sentencing range based in part upon that court’s prediction that Nellum was
unlikely to recidivate due to his advanced age. Relying upon Nellum’s reproduction
of a portion of a chart from the USSC Recidivism Study, the district court in the
instant case stated that



      3
        Nellum refers to UNITED STATES SENTENCING COMMISSION, MEASURING
RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING
GUIDELINES (2004), available at http://www.ussc.gov/publicat/Recidivism_General.
pdf [hereinafter the “USSC Recidivism Study”].
                                          -5-
      [t]he likelihood of recidivism . . . recidivism rates decline consistently as
      age increases. Generally, the younger the offender, the more likely the
      offender recidivates. . . . [Quoting Nellum:] Among all offenders under
      the age of 21 recidivism rate is 35.5, while offenders over the age of 50
      have a recidivism rate of 9.5 percent. . . . According to the [criminal]
      history category III Defendants like Defendant Nellum the recidivism
      rates are as follows, and the Court is going to specifically refer to Mr.
      McDonald’s age as between 36 and 40, the recidivism rate is still 29.4
      percent.

       Based upon the district court’s analysis of McDonald’s age and its perceived
relationship to the likelihood that McDonald would recidivate, the district court stated
that “with the long sentence that is mandated by the Congress, hopefully the citizens
will be protected from Mr. McDonald. He will be adequately deterred and the public
won’t have further crimes committed by this Defendant.”

      The district court then sentenced McDonald to 132 months’ imprisonment on
each count of attempting to manufacture methamphetamine, as well as 120 months’
imprisonment for creating a substantial risk of harm to human life while
manufacturing a controlled substance. McDonald’s sentences for all counts were to
run concurrently. The district court concluded by commenting that “[t]his . . ., I think,
would be categorized by the Government as a very lenient sentence . . . .”

II.   DISCUSSION

       Following the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), we review sentences to determine “whether the district court abused its
discretion by imposing an unreasonable sentence on the defendant.” United States v.
Haack, 403 F.3d 997, 1003 (8th Cir. 2005). The guidelines sentencing range remains
the “critical starting point” of our analysis, United States v. Mashek, 406 F.3d 1012,
1016 n.4 (8th Cir. 2005), and “[b]ecause the Guidelines are fashioned taking the other
§ 3553(a) factors into account and are the product of years of careful study, the

                                           -6-
guidelines sentencing range, though advisory, is presumed reasonable,” United States
v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006).

        Nevertheless, because the sentencing guidelines are advisory, “the [district]
court has a range of choice, and . . . its decision will not be disturbed as long as it
stays within that range and is not influenced by any mistake of law.” Haack, 403 F.3d
at 1004 (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
Critically, the “range of choice is limited.” Id. “[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); see also United States v. Dalton, 404 F.3d 1029, 1033
(8th Cir. 2005) (holding in review of a downward departure that “[a]n extraordinary
reduction must be supported by extraordinary circumstances”). A district court abuses
its sentencing 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 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.

Haack, 403 F.3d at 1004.

       The record reflects that the district court clearly articulated two reasons in
support of the 130-month variance it awarded McDonald: McDonald’s work history
and the district court’s estimation of McDonald’s likelihood of recidivism. We find
that neither reason is sufficient to support the extraordinary sentence reduction.

        During sentencing, with respect to McDonald’s employment history, the district
court only “reference[d] [McDonald’s] employment for over a year’s period of time
[i.e., his 15 months with Schulte Construction] as well as his skills as a welder.” Even

                                           -7-
assuming that a 15-month period of work could be an extraordinarily positive factor
when assessing a 38 year-old defendant’s work history, it is clear that McDonald’s
work history was anything but exemplary, even during that brief period. To the
contrary, the record indicates that, while McDonald at first attended work regularly,
his attendance severely declined due to his drug habit. As his employer, Ms. Schulte,
recounted, McDonald “became very lax in coming to work on time, if he even showed
up.” Moreover, there is no indication in the record that McDonald was employed for
the six months leading up to his January 2004 arrest. Accordingly, to the extent that
McDonald’s work during the 15-month period discussed by the district court
contributed to the sentencing variance, it cannot sustain the extraordinary variance in
this case. Cf. United States v. Moreland, 437 F.3d 424, 437 (4th Cir. 2006)
(“Moreland’s desultory pursuit of his education and his spotty employment
history—six jobs over the course of seven years, with his last legitimate employment
in 1999—can provide little confidence in his willingness to become a productive
member of society, irrespective of his ability to do so.”).

         The district court’s determination that McDonald was unlikely to recidivate
following his abbreviated sentence—a determination that relied upon McDonald’s age
and the USSC Recidivism Study—is similarly insufficient to warrant a variance of the
magnitude awarded. The guidelines have already accounted for the likelihood of
recidivism through the guidelines’ criminal history computation. See, e.g., United
States v. Gayle, 389 F.3d 406, 409 (2d Cir. 2004) (“Gayle’s criminal history category
. . . serves as a proxy for his likelihood of recidivism.”); USSC Recidivism Study at
10 (“Both [Criminal History Categories] and criminal history points predict
recidivism.”); id. at 13 (“[T]he criminal history computation is designed to predict
recidivism.”). Indeed, the USSC Recidivism Study concluded that the guidelines’
criminal history accurately predicted the likelihood of recidivism. Id. at 15 (“Testing
of the guidelines’ criminal history measure’s predictive powers shows that the
aggregate Chapter Four provisions are performing as intended and designed. . . . The
empirical evidence shows that criminal history as a risk measurement tool has

                                          -8-
statistically significant power in distinguishing between recidivists and non-
recidivists.”).

      We have previously cautioned against substantial variances predicated upon
characteristics of the individual defendant for which the guidelines calculation already
accounts. In United States v. Myers, 439 F.3d 415, 418 (8th Cir. 2006), we rejected
such a variance:

      The only section 3553(a) factor identified by the district court that
      weighs toward a more lenient sentence is Myers’ lack of criminal
      history. Inasmuch as a guidelines sentence reflects a defendant’s
      criminal history, a wide divergence from the guidelines sentence based
      solely on this single criterion would conflict with the need to avoid
      unwarranted sentence disparities among defendants with similar records
      who have been found guilty of similar conduct.

See also United States v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006) (rejecting a
variance based upon the defendant’s criminal history and other factors for which the
guidelines already accounted). As Myers noted, substantial variances based upon
factors already taken into account in a defendant’s guidelines sentencing range
seriously undermine sentencing uniformity. 439 F.3d at 418. And as Booker stated,
Congress’s clear intent is to make sentences more uniform, and uniformity remains
an important sentencing goal. 543 U.S. at 253-54; see also 18 U.S.C. § 3553(a)(6)
(including “the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct” among § 3553(a)
factors). Accordingly, applying our reasoning from Myers, we conclude that the
district court’s assessment of McDonald’s likelihood of recidivism based solely on his
age and the USSC Recidivism Study cannot justify a wide divergence from the
guidelines sentence in this case because the guidelines sentencing range already
accounts for the likelihood of recidivism.



                                          -9-
       Moreover, we are unpersuaded by the district court’s use of the USSC
Recidivism Study. As a preliminary matter, it appears that the district court simply
adopted Nellum’s recitation and application of the study.4 But Nellum was a much
different offender. 2005 WL 300073, at *3. Nellum was 57 years old when he was
sentenced and would not be released until he was 65. Id. at *3. McDonald was only
38 at sentencing. After serving a 132-month sentence, McDonald would be 49. In
other words, at the time that McDonald would be released, McDonald would still be
eight years younger than Nellum was when Nellum was sentenced.

       Nor were the two defendants’ criminal histories comparable. Two
misdemeanor crack possession convictions placed Nellum in his criminal history
category of III. Id. at *4. McDonald, on the other hand, had a significant and steady
history of committing crime. In addition to his 2004 convictions, between 1990 and
2000, McDonald was convicted of methamphetamine possession three times (in 1990,
1995 and 1996); possession with intent to deliver methamphetamine twice (in 1994
and 1995); marijuana possession (in 1995); various theft offenses three times (once
in 1994 and twice in 1995); providing false information to the police (in 1995);
driving while intoxicated (in 1993); driving while barred (in 2000); and driving on a
suspended license three times (twice in 1994 and once in 1996). Starting with his first


      4
         The USSC Recidivism Study contains an exhibit detailing the percentage of
offenders that recidivate within two years of release. USSC Recidivism Study at 28
(Exhibit 9). The exhibit categorizes offenders using two variables: age at sentencing
and criminal history category. It contains one column for each of the six criminal
history categories and rows that reflect offender age categories. Nellum, upon which
the district court relied, reprinted only one column of the six-column chart—a column
that set forth the recidivism rates for offenders with a criminal history category of III.
The district court clearly relied upon the limited portion of the study reproduced in
Nellum. Sentencing Tr. at 27-28 (“Judge Simon [from the Northern District of
Indiana] quotes the United States Sentencing Commission’s own report . . . . As the
report states, quote . . . . According to the history category III Defendants like
Defendant Nellum the recidivism rates are as follows . . . .”).
                                           -10-
felony conviction at age 24 and including the instant offenses, McDonald was
convicted of 18 different crimes over the succeeding 13-year period. McDonald’s
convictions resulted in a variety of sentences that included jail time, probation and
court-ordered substance abuse treatment. In several instances, McDonald’s probation
was revoked (or he was jailed for contempt of court) because he offended yet again.

       Moreover, unlike Nellum, McDonald was a career offender. The Sentencing
Commission created the career offender provision, Guidelines § 4B1.1, in response
to Congress’s directive to “assure that the guidelines specify a sentence to a term of
imprisonment at or near the maximum term authorized for categories of defendants
in which the defendant is eighteen years old or older and . . . has previously been
convicted of two or more prior felonies, each of which is . . . an offense described in
[21 U.S.C. § 841].” 28 U.S.C. § 994(h); see also United States v. Bell, 445 F.3d 1086,
1088-89 (8th Cir. 2006) (discussing the relationship between 28 U.S.C. § 994(h) and
Guidelines § 4B1.1). Even without career offender status, McDonald would have
faced a guidelines sentencing range of 168 to 210 months. See n.2, supra. Thus, the
district court’s extraordinary variance down to 132 months not only negates
Congress’s intent that career offenders serve sentences “at or near the [statutory]
maximum term authorized,” 28 U.S.C. § 994(h), it also represents a significant
downward variance from McDonald’s guidelines range without the career offender
enhancement.

       Even if the USSC Recidivism Study could be deemed to shed light on the
likelihood that McDonald will recidivate (beyond his criminal history computation),
the district court misinterpreted and misapplied it. Contrary to the district court’s
apparent interpretation of the USSC Recidivism Study, the study in fact supports the
guidelines’ determination that offenders like McDonald with a criminal history
category of VI recidivate more often than not. According to the USSC Recidivism
Study, 51.3 percent of individuals with McDonald’s criminal history category, VI, and
age at sentencing, 38, recidivated within two years of release. USSC Recidivism

                                         -11-
Study at 28 (Exhibit 9). Offenders under the age of 21 who were in McDonald’s
criminal history category of VI recidivated 55 percent of the time—only 3.7 percent
more often than offenders who were McDonald’s age. Id. The relevant statistics
stand in distinct contrast to the district court’s mistaken estimation that someone of
McDonald’s age really only had a 29.4 percent chance of recidivating—a conclusion
reached by mistakenly using the statistics relating to a defendant with a criminal
history category of III like Nellum, rather than VI like McDonald.5

       Even within those categories, the USSC Recidivism Study noted that
characteristics other than age influence the likelihood of recidivism. Those who
lacked “stable employment in the year prior to their instant offense” and those who
used “illicit drugs within one year prior to their instant offense have a higher
recidivism rate.” Id. at 12-13. McDonald fits both of these categories. At bottom, the
USSC Recidivism Study does not support a variance in this case.

       We do not rule out the possibility that some extraordinary work history or
individual characteristic related to age or the likelihood of recidivism could justify a
variance in other cases. However, in this case, McDonald’s work history and the
district court’s estimation of his likelihood of recidivism—whether considered
separately or together—do not constitute the type of compelling justifications
necessary to justify a variance of the magnitude awarded here.6 Accordingly, we


      5
        According to Exhibit 9 of the USSC Recidivism Study, 19.8 percent of
offenders with a criminal history category of III who were over age 50 at sentencing
(like Nellum) recidivated within two years. USSC Recidivism Study at 28. Of those
offenders with a criminal history category of III who were between 36 and 40 years
of age at sentencing, 29.4 percent recidivated within two years. Id. However, 51.3
percent of offenders with a criminal history category of VI who were between 36 and
40 years of age at sentencing (like McDonald) recidivated within two years. Id.
      6
      We make no holding concerning whether the record in this case could support
a downward variance of some lesser magnitude. The district court was unwilling to
                                          -12-
conclude that the district court “commit[ted] 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.” Haack, 403 F.3d at 1004.7


vary based upon the death of McDonald’s daughter, as it was unable to determine if,
as McDonald urged, the death of McDonald’s daughter really was the triggering event
for McDonald’s relapse into drug use. As the district court stated, it was “in no
position to know” whether there was a causal connection between the death of
McDonald’s daughter and McDonald’s relapse.

       The district court was less clear, however, with respect to McDonald’s other
personal characteristics. Specifically, the district court’s ambiguous statement that
“[s]pecific mention by me will be [made] of the Defendant’s long-time drug
dependency and psychiatric diagnoses” is equally consistent with the district court’s
consideration and dismissal of those characteristics as it is with consideration and
variance based upon them. Given the district court’s detailed reliance on McDonald’s
work history and the recidivism study, we cannot merely assume that the district court
based its variance upon McDonald’s addiction or mental health. Cf. United States v.
Gatewood, 438 F.3d 894, 896 (8th Cir. 2006) (“For this court to properly carry out the
appellate review mandated by Booker, it is essential that the district court explain the
reasons why it has imposed a sentence outside the guidelines sentencing range in a
particular case.”). In any event, the district court’s ambiguous statements regarding
McDonald’s addiction and mental health do not support a variance of the magnitude
awarded.
      7
       The dissent, following United States v. Meyer, 452 F.3d 998, 1000 n.3 (8th Cir.
2006) (Heaney, J., concurring), summarizes the results of our post-Booker sentencing
review cases, including both departures and variances, and expresses concern that we
have tended to affirm sentences imposed above the advisory guidelines range (sixteen
affirmed, one vacated) and vacate those below the range (five affirmed, twenty-five
vacated). We accept the dissent’s invitation “to take a critical look at how we dispose
of such cases.” Post at 20. A closer look at the cases

listed in Meyer, as supplemented by the dissent, reveals several mundane explanations
for the disparity.

      First, the dissent’s list includes seven sentences varying downward that were
                                          -13-
vacated by necessity because the sentencing court did not explain any reasoning for
the downward variance. Shafer, 438 F.3d at 1227 (“For this court to properly carry
out the appellate review mandated by Booker, it is essential that the district court
explain why it imposed a sentence below the guidelines range . . . .”). This should
occur with less frequency as sentencing courts have begun to comply with our only
recently developed Booker-review jurisprudence. Indeed, sentences vacated for
absence of reasoning might well be affirmed when they appear before us again with
the benefit of the sentencing court’s reasoning.

      Second, the dissent’s list includes seven sentences (five of which are not
included in the previous paragraph) that depart or vary downward more than 100
months, but only one that departs or varies upward by that amount. Because
extraordinary departures and variances must be supported by extraordinary
circumstances, McMannus, 436 F.3d at 874, it stands to reason that departures and
variances of the largest magnitude have less of a likelihood of surviving appellate
review.

       Third, the list includes five sentences that were vacated where the sentencing
court imposed no prison term at all, despite a lower end of the advisory guidelines
range of 12, 24, 30, 46 and 63 months respectively. (In addition, one sentence varying
downward from a low end of 12 months to no prison term was affirmed.) We have
suggested that a variance to zero prison time where the Sentencing Commission has
found that substantial prison time is indicated also requires extraordinary justification.
United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006).

       Finally, and most tellingly, statistics published by the Sentencing Commission
establish that, between the publication of Booker and February 2, 2006, sentencing
courts in the Eighth Circuit pronounced 767 below-guidelines range sentences (169
departures and 598 variances; not counting those sponsored by the Government) and
94 above-guidelines range sentences (17 departures and 77 variances), a ratio of more
than 8:1 below-guidelines to above-guidelines sentences. See United States
Sentencing Commission, FINAL REPORT ON THE IMPACT OF UNITED STATES V. BOOKER
ON FEDERAL SENTENCING D-20 (March 2006). Although the time frame in the
dissent’s list of cases is not an exact match, the ratio of below-guidelines range
sentences appealed to above-guidelines sentences appealed in the list is less than 2:1.
These statistics indicate that about three-quarters of below-guidelines range sentences
                                           -14-
III. CONCLUSION

      For the foregoing reasons, we vacate McDonald’s sentence as unreasonable
and remand for resentencing consistent with this opinion.

BYE, Circuit Judge, dissenting.

      The majority concludes the district court abused its discretion by imposing a
sentence of 132 months. I believe the district court acted properly, and because
today's decision affords too little deference to the broad discretion visited upon
sentencing courts under the now-advisory guideline system, I am compelled to
respectfully dissent.

       We have consistently stated "[u]nder the post-Booker advisory system, the
Federal Sentencing Act 'requires a sentencing court to consider Guidelines ranges, but
it permits the court to tailor the sentence in light of other statutory concerns as well.'"
United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005) (quoting United
States v. Booker, 125 S. Ct. 738, 757 (2005)). Nothing indicates the advisory
Guidelines range is anything more than one factor, among many, the sentencing court
is obligated to consider before imposing a sentence. We have held a sentence within
the Guidelines range is presumptively reasonable, United States v. Lincoln, 413 F.3d
716, 717 (8th Cir. 2005), but have rejected the notion "that the range of


do not reach us for appellate review and are, thus, effectively affirmed, although not
eligible for the dissent’s list. Furthermore, one would expect that the limited number
of below-guidelines sentences actually appealed by the Government represent those
that appear to be the most debatable, and, thus, the most likely to be overturned on
appeal.

      Based on this non-exhaustive list of factors, it appears that the discretion
afforded to sentencing judges post-Booker is not “an escalator that only goes up.”
Post at 20 (quoting United States v. Jones, No. 05-2289 (2d Cir. Aug. 2, 2006)).
                                           -15-
reasonableness is essentially co-extensive with the Guidelines range" because such a
rule "would effectively render the Guidelines mandatory." United States v. Winters,
416 F.3d 856, 861 (8th Cir. 2005). Instead, "[w]e have been directed to review a
sentence for reasonableness based on all the factors listed in § 3553(a)(6). The
Guidelines range is but one such factor. We cannot isolate possible sentencing
disparity to the exclusion of all the other § 3553(a) factors." Id. (emphasis in
original).

         Under the mandatory Guidelines scheme, district courts were prohibited from
considering a defendant's characteristics in "any manner other than as a basis for a
Guidelines departure." United States v. Ryder, 414 F.3d 908, 920 (8th Cir. 2005).
Now, § 3553(a) requires a district court to consider a defendant's characteristics
independent of the guidelines. Id. ("Now coupled with the requirements in § 3553(a)
. . . the district court would be well within its discretion to . . . consider . . . ages and
medical conditions as non-Guidelines factors on remand"); see also United States v.
Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (holding the district court properly
considered non-Guidelines sentencing factors such as prior military service, wife's
pregnancy, the need to care for other children and entrepreneurial spirit). Indeed,
"[w]e believe it would seriously affect[] the fairness, integrity, or public reputation of
judicial proceedings 'to not allow the district court to consider these factors now.'"
Lamoreaux, 422 F.3d at 756 (quoting United States v. Rodriguez-Ceballos, 407 F.3d
937, 941-42 (8th Cir. 2005) (internal quotations omitted)). "Sentences varying from
the guidelines range . . . are reasonable so long as the judge offers appropriate
justification under the factors specified in 18 U.S.C. § 3553(a). How compelling that
justification must be is proportional to the extent of the difference between the
advisory range and the sentence imposed." United States v. Claiborne, 439 F.3d 479,
480 (8th Cir. 2006) (quoting United States v. Johnson, 427 F.3d 423, 426-27 (7th Cir.
2005) (citation omitted)). A "range of reasonableness" is within the court's discretion.
Id. (quoting United States v. Saenz, 428 F.3d 1159, 1165 (8th Cir. 2005)).



                                            -16-
      The exercise of a district court's sentencing discretion

      [I]mplies the absence of a hard-and-fast rule. The establishment of a
      clearly defined rule of action would be the end of discretion, and yet
      discretion should not be a word for arbitrary will or inconsiderate action.
      Discretion means the equitable decision of what is just and proper under
      the circumstances.

The Styria v. Morgan, 186 U.S. 1, 9 (1902) (internal quotations omitted) (emphasis
in original). "[Discretion] takes account of the law and the particular circumstances
of the case and is directed by the reason and conscience of the judge to a just result."
Burns v. United States, 287 U.S. 216, 223 (1932) (internal quotations omitted).

       The record demonstrates the district court carefully considered all the relevant
circumstances and arrived at a just and proper result. I find nothing to suggest it
strayed from the proper exercise of discretion by taking into account improper or
irrelevant factors or by ignoring factors which should have been given significant
weight. United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). Among other
circumstances, the district court considered McDonald's criminal history and the
serious nature of his current crimes; his addiction to methamphetamine and mental
health problems; the need for treatment and rehabilitation; the tragic death of his
daughter; his employment history; and the need to protect the public and impose a
significant sentence to minimize the likelihood of future criminal conduct. The
eleven-year sentence imposed by the court represents a significant period of
incarceration and reflects a reasoned attempt to arrive at a proper sentence in light of
the myriad sentencing factors it was called upon to consider and balance. The
sentence reflects the seriousness of the offense and specifically takes into account the
need to protect the public until such time the likelihood of future criminal conduct
would be minimized. The lengthy sentence also provides McDonald the opportunity
to receive the treatment and rehabilitation he needs to overcome his drug addiction
and mental health problems and once again become a productive member of society.

                                          -17-
I recognize another judge might have imposed a different sentence but I find nothing
to convince me the district court abused its discretion.

       The majority holds the district court did not adequately explain the reasons
behind the 132-month sentence. I disagree. We have repeatedly stated: "Nothing in
§ 3553(a) . . . requires 'robotic incantations' that each statutory factor has been
considered." Lamoreaux, 422 F.3d at 756 (citations omitted). Nor do we "require a
district court to categorically rehearse each of the section 3553(a) factors on the record
when it imposes sentence so long as it is clear that they were considered." United
States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006); see also United States v. Long
Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005) ("The relevant inquiry is not whether the
district court quoted or cited § 3553(a); it is whether the district court actually
considered the § 3553(a) factors.").

      The majority also relies on the need to avoid unwarranted sentencing disparities
as a basis for rejecting the district court's sentence. Sentencing disparities were
predicted by the Supreme Court in Booker:

      [R]egardless, in this context, we must view fears of a "discordant
      symphony," "excessive disparities," and "havoc" (if they are not
      themselves "gross exaggerations") with a comparative eye. We cannot
      and do not claim that use of a "reasonableness" standard will provide the
      uniformity [in sentencing] that Congress originally sought to secure.

Booker, 543 U.S. at 263.



       Accordingly, while uniformity remains an important component of sentencing,
it cannot serve as the touchstone in a system which orders district courts to consider
and balance a multitude of other factors. Such an approach would simplify sentencing
but undermine Booker. We are now the arbiters of a sentencing system driven by

                                           -18-
reasonableness – a much more fluid standard – and no longer have the luxury of
treating sentencing like a mathematical equation. We must be prepared to accept that
with discretion comes some disparity. I am confident district courts exercise their
discretion with wisdom and restraint and believe appellate courts should only rarely
reverse such decisions.

       I believe today's decision is symptomatic of the growing pains our courts are
experiencing as we move away from a constitutionally infirm system of mandatory
sentencing to the advisory system commanded by Booker. If we fail to implement the
promise of Booker and do not relinquish greater discretion to experienced district
court judges whose proximity to sentencing renders them eminently more qualified
to appreciate the subtleties of each case, we will find ourselves the architects of a new
– and equally unconstitutional – de facto mandatory sentencing system crafted from
the ashes of the last.

      I also wish to lend my voice to the concerns expressed by Judge Heaney in
United States v. Meyer, 452 F.3d 998, 1000 n.3 (8th Cir. 2006). I too have noticed
our court routinely affirms sentences above the Guidelines range, while reversing
most sentences imposed below the Guidelines range.

       Judge Heaney noted that since Booker, our court has affirmed twelve sentences
in excess of the recommended Guidelines range but reversed only one. To his list of
cases affirming sentences in excess of the Guidelines range, I add the following:
United States v. Maurstad, 2006 WL 1997148 (8th Cir. July 19, 2006), United States
v. Hacker, 450 F.3d 808 (8th Cir. 2006), United States v. Donelson, 450 F.3d 768 (8th
Cir. 2006), and United States v. Porter, 439 F.3d 845 (8th Cir. 2006). My research
reveals no additional cases in which the court reversed a sentence in excess of the
recommended Guidelines range. Thus, by my count, we have affirmed sixteen above
Guidelines cases while reversing only one.



                                          -19-
       Judge Heaney further noted the court has reversed sixteen sentences which were
below the Guidelines range and affirmed three. To his list of cases reversing below
Guidelines sentences, I add the following: United States v. Collier, No. 05-2198, slip
op. (8th Cir. Aug. 10, 2006), United States v. Brown, 2006 WL 2192716 (8th Cir.
Aug. 4, 2006), United States v. Robinson, 2006 WL 2011226 (8th Cir. July 20, 2006),
United States v. Lee, 2006 WL 2011170 (8th Cir. July 20, 2006), United States v.
Medearis, 451 F.3d 918 (8th Cir. 2006), United States v. Rivera, 439 F.3d 446 (8th
Cir. 2006), United States v. Myers, 439 F.3d 415 (8th Cir. 2006), United States v.
Feemster, 435 F.3d 881 (8th Cir. 2006), and United States v. Coyle, 429 F.3d 1192
(8th Cir. 2006). To his list of cases affirming below Guidelines sentences, I add:
United States v. Krutsinger, 449 F.3d 827 (8th Cir. 2006). Thus, by my count, we
have reversed twenty-five below Guidelines sentences while affirming only four.

     Like Judge Heaney, I recognize other considerations may explain the disparity.
Nonetheless, I believe it should be the catalyst for the court to take a critical look at
how we dispose of such cases.

             If we are to be deferential when the Government persuades a
      district judge to render a non-Guidelines sentence somewhat above the
      Guidelines range, we must be similarly deferential when a defendant
      persuades a district judge to render a non-Guidelines sentence somewhat
      below the Guidelines range. Obviously, the discretion that Booker
      accords sentencing judges to impose non-Guidelines sentences cannot be
      an escalator that only goes up.




United States v. Jones, 2006 WL 2167171, at *4 (2d Cir. Aug. 2, 2006).


      For these reasons, I respectfully dissent.
                      ______________________________

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