                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1857
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Adam Rouillard,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 18, 2006
                                Filed: January 26, 2007
                                 ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Adam Rouillard (Rouillard) pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sua sponte departed
and varied upward, sentencing Rouillard to 120 months’ imprisonment. Rouillard
appealed. We reverse and remand for resentencing.

I.    BACKGROUND
      On November 29, 2004, a police officer initiated a traffic stop of a car. At the
time of the stop, Rouillard, a passenger in the car, possessed a semi-automatic
handgun. Rouillard later pled guilty to being a felon in possession of a firearm.
        The United States Probation Office prepared a presentence investigation report
(PSR), detailing Rouillard’s criminal history.1 At age 12, Rouillard had juvenile
adjudications for third-degree and fourth-degree criminal mischief and for being under
the influence of toxic vapors. Rouillard’s adult convictions include: (1) at age 18,
carrying a concealed weapon, possessing a controlled substance (first offense), third-
degree theft, possessing burglary tools, tampering with records, failing to comply with
and eluding officers, driving without a license, fraudulent use of registration, and
having an improper muffler; (2) at age 19, possessing a controlled substance (second
offense) and eluding officers; (3) at age 20, driving with a suspended license; (4) at
age 21, possessing a controlled substance (third offense), failing to appear, and
permitting an unauthorized driver; (5) at age 22, carrying a concealed weapon, driving
with a suspended license, and driving with no insurance; (6) at age 24, public
intoxication, littering, and driving with a suspended license; and (7) at age 25,
possessing a controlled substance (fourth offense), possessing drug paraphernalia
(twice), drunk driving, having an open container, and false reporting. Rouillard’s
criminal history also shows several other arrests, including at age 22, an arrest for
going armed with intent, terrorism, criminal gang participation, and reckless use of a
firearm. The record also demonstrates Rouillard repeatedly violated the terms of his
probation, was charged with contempt of court for failing to pay his court-ordered
fines, continually received suspended sentences, and rarely served more than a month
in jail. Rouillard was 26 years old at the time of his sentencing for the present offense.

      Rouillard’s PSR calculated a criminal history score of 13. This score excluded
2 criminal history points under U.S.S.G. § 4A1.1(c) and excepted several convictions
under § 4A1.2(c)(1), (c)(2), and (e)(4). This calculation resulted in a criminal history
category VI. Being a felon in possession of a firearm has a base offense level of 14.
See U.S.S.G. § 2K2.1(a)(6). Rouillard received a two-level reduction for acceptance

      1
       We accept as true the facts set forth in the PSR because Rouillard never
objected to the PSR’s specific factual allegations. See United States v. Wintermute,
443 F.3d 993, 1005 (8th Cir. 2006).

                                           -2-
of responsibility, resulting in a total offense level of 12 and an advisory Guidelines
sentencing range of 30 to 37 months’ imprisonment.

       The district court sua sponte departed upward pursuant to § 4A1.3, describing
Rouillard’s behavior as a “continuous pattern” of criminal conduct. Based on the
frequency of Rouillard’s convictions and incorrigibility, the district court concluded
Rouillard’s criminal history calculation “certainly under[-]represents the likelihood
[Rouillard] will commit other crimes because [Rouillard has] just been on a criminal
rampage since he turned 18.” Accordingly, the district court departed upward 4 levels
to an offense level of 16. An offense level of 16 and a criminal history category VI
resulted in an advisory Guidelines range sentence of 46 to 57 months’ imprisonment.

      The district court then stated:

             Under the nature and circumstances of [Rouillard], the nature and
      circumstances of the offenses, and the history and characteristics of
      [Rouillard] under 18 U.S.C. § 3553(a), [Rouillard’s] extensive criminal
      history beginning at age 12 actually, his prior felony convictions for theft
      in the third degree, drug possession third offense, and drug possession
      fourth offense, his extensive substance abuse history, his history of
      probation violations, fact that he owes $23,000 in child support
      arrearages, his minimum employment history. . . .

             So based on all those factors, I’m departing [sic] upward.

Thereafter, the district court sua sponte varied upward to the statutory maximum
sentence of 120 months’ imprisonment, reasoning the statutory maximum sentence
was necessary in this case “to reflect the seriousness, to promote respect for the law,
and to provide just punishment for the offense.”

     Rouillard appeals. Rouillard contends the district court should have sentenced
him within the advisory Guidelines range and erred by departing and varying upward


                                          -3-
based on his criminal history. The government contends Rouillard’s extensive and
dangerous criminal past and repeated violations of the terms of his probation justify
the upward departure, however, the government concedes no factors justify the extent
of the upward variance, which the government alleges results in unwarranted
sentencing disparities.

II.    DISCUSSION
       After United States v. Booker, 543 U.S. 220 (2005), the sentencing court first
must calculate the advisory Guidelines sentencing range. United States v. Ture, 450
F.3d 352, 356 (8th Cir. 2006). After the Guidelines range has been calculated, the
sentencing court should consider whether any traditional departures are appropriate
in determining the Guidelines range sentence. United States v. Bueno, 443 F.3d 1017,
1022 (8th Cir. 2006). Calculating an appropriate Guidelines range sentence is “the
critical starting point,” United States v. Mashek, 406 F.3d 1012, 1016 n.4 (8th Cir.
2005), to appraise any sentence because the Guidelines incorporate the other § 3553(a)
factors and “are the product of years of careful study,” United States v. McDonald,
461 F.3d 948, 952-53 (8th Cir. 2006) (quoting United States v. Shafer, 438 F.3d 1225,
1227 (8th Cir. 2006)), petition for cert. filed, ___ U.S.L.W. ___ (Nov. 28, 2006) (No.
06-8086). Only after the sentencing court has calculated a Guidelines range sentence
should the court consider the other factors set forth at § 3553(a) to determine whether
to impose a non-Guidelines range sentence. United States v. Haack, 403 F.3d 997,
1003 (8th Cir.), cert. denied, 126 S. Ct. 276 (2005).

      A.    Guidelines Range Calculation
      We review de novo the district court’s interpretation and application of the
advisory Guidelines and review for clear error its findings of fact. United States v.
Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005). Before departing, the district court
concluded Rouillard’s Guidelines sentencing range was 30 to 37 months’
imprisonment. Both Rouillard and the government agree the district court properly



                                         -4-
calculated the advisory Guidelines sentencing range before it departed. Accordingly,
we only review the departure and variance.

       B.     Departure
       We review for abuse of discretion any departures from the advisory sentencing
Guidelines. Mashek, 406 F.3d at 1017. “Although the sentencing court cannot
consider a defendant’s prior arrest record itself as the basis for an upward departure,”
United States v. Hacker, 450 F.3d 808, 812 (8th Cir. 2006) (citing U.S.S.G.
§ 4A1.3(a)(2), (3)), the sentencing court may consider prior arrests if the PSR sets
forth the “specific facts underlying the arrests,” United States v. Hawk Wing, 433 F.3d
622, 628 (8th Cir. 2006); see Hacker, 450 F.3d at 812. Here, Rouillard’s prior arrest
record qualifies as “[p]rior similar adult conduct not resulting in a criminal
conviction” under § 4A1.3(a)(2)(E) because the PSR described Rouillard’s arrest in
detail, indicating Rouillard and other gang members approached an occupied
automobile and Rouillard threatened to blow the occupant’s head off, someone fired
a short barreled semi-automatic gun at the automobile, and the bullet struck the
automobile. Because the PSR set forth the specific factual details underlying the
arrest, we will consider Rouillard’s arrest record in reviewing the sentence.

       Rouillard argues the district court gave his past criminal conduct too much
weight in departing upward. Section 4A1.3(a)(1) provides: “If reliable information
indicates that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit other crimes, an upward departure may be warranted.” “When
contemplating and structuring such a departure, the district court should consider both
the nature and extent of a defendant’s criminal history.” Hacker, 450 F.3d at 812.
“‘[E]ven offenses which are minor and dissimilar to the instant crime may serve as
evidence of likelihood of recidivism if they evince the defendant’s incorrigibility.’”
United States v. Schwalk, 412 F.3d 929, 934 (8th Cir. 2005) (quoting United States
v. Agee, 333 F.3d 864, 867 (8th Cir. 2003)). An upward departure pursuant to

                                          -5-
§ 4A1.3 is particularly appropriate in the context of younger defendants who
repeatedly have received lenient sentences, yet who may pose a significant risk of
serious recidivism. See U.S.S.G. § 4A1.3 cmt. background.

       Even though Rouillard is a criminal history category VI, the seriousness of
Rouillard’s past criminal conduct and risk of recidivism are under-represented. See
United States v. Shannon, 414 F.3d 921, 923-24 (8th Cir. 2005). The 13 criminal
history category points calculated in the PSR only reflected a portion of Rouillard’s
past criminal conduct. In addition to the scored convictions, Rouillard had several
unscored criminal acts, including (1) juvenile adjudications for third-degree and
fourth-degree criminal mischief and being under the influence of toxic vapors,
(2) adult convictions for relatively serious traffic violations and failure to comply with
and eluding officers, (3) multiple violations of the terms of his probation and refusals
to comply with court orders, and (4) an arrest for going armed with intent, terrorism,
criminal gang participation, and reckless use of a firearm.

       Rouillard also has received relatively lenient sentences despite having been
convicted of serious criminal offenses. “‘In deciding the likelihood that a defendant
may commit other crimes, a court may take into account any evidence of obvious
incorrigibility and conclude that leniency has not been effective.’” Hacker, 450 F.3d
at 812 (quoting United States v. Herr, 202 F.3d 1014, 1016 (8th Cir. 2000)). Because
Rouillard’s criminal history category VI substantially under-represents the seriousness
of Rouillard’s past criminal conduct and risk of recidivism, the district court did not
abuse its discretion in departing upward four levels, to an offense level of 16, resulting
in a Guidelines sentencing range of 46 to 57 months’ imprisonment.

       C.    Variance
       We review for abuse of discretion the reasonableness of a sentence. United
States v. Spears, 469 F.3d 1166, 1170 (8th Cir. 2006) (en banc). “[A]n abuse of
discretion may occur when (1) a court fails to consider a relevant factor that should

                                           -6-
have received significant weight; (2) a court gives significant weight to an improper
or irrelevant factor; or (3) a court considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” Haack, 403 F.3d at 1004
(internal quotation omitted).

       To review for abuse of discretion, we ask “whether the district court’s decision
to grant a § 3553(a) variance from the appropriate guidelines range is reasonable, and
whether the extent of any § 3553(a) variance . . . is reasonable.” Mashek, 406 F.3d
at 1017. “[T]he 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 (quotation omitted). “As the size of the variance grows, so
too must the reasons that warrant it.” United States v. Medearis, 451 F.3d 918, 920
(8th Cir. 2006).

       After departing upward four levels, the district court varied upward another
eight levels or 111%2 and sentenced Rouillard to 120 months’ imprisonment. The
district court varied upward due to the nature and circumstances of the offense and
Rouillard’s criminal history, probation violations, substance abuse history, unpaid
child support obligation, and minimum employment history.

       Even after departing upward, varying upward may be reasonable. Although
“[t]he guidelines have already accounted for the likelihood of recidivism through the
guidelines’ criminal history computation,” McDonald, 461 F.3d at 953, in limited
circumstances, a district court may vary upward because an upward variance due to
an under-represented criminal history or a high risk of recidivism is consistent with
the purposes of § 3553(a). See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(C); see
United States v. Fogg, 409 F.3d 1022, 1026 (8th Cir. 2005). We agree with the


      2
       The percent change calculations measure the change from the closest
Guidelines range sentence.

                                          -7-
district court that imposing a sentence within the advisory Guidelines range would not
serve the purposes of § 3553(a). By not fully accounting for Rouillard’s extensive
past criminal conduct and high risk of recidivism, the Guidelines sentencing range
does not adequately reflect Rouillard’s past criminal conduct and characteristics,
provide just punishment, or protect the public from future crimes. Given Rouillard’s
unaccounted criminal conduct and nearly continuous participation in criminal
activities, some upward variance is reasonable.

       We have affirmed significant upward variances based on past criminal conduct
when the circumstances have been extraordinary, either because significant criminal
conduct had not been accounted for, see, e.g., United States v. Lyons, 450 F.3d 834,
836-37 (8th Cir.) (affirming an upward variance (ten levels or 107%) because the
defendant had 31 criminal history points, 19 convictions in 15 years, and had been
treated with leniency, but was participating in “a series of escalating criminal acts”),
cert. denied, 127 S. Ct. 358 (2006); cf. Shannon, 414 F.3d at 923-24 (affirming an
upward departure (thirteen levels or 383%) due to the defendant’s 31 criminal history
points, prior similar convictions, the temporal proximity of the defendant’s
convictions, and the defendant’s incorrigibility), or because the past relevant conduct
was similar in form to or contemporaneous with the instant offense, see, e.g., United
States v. Zeigler, 463 F.3d 814, 818 (8th Cir. 2006) (affirming an upward variance
(eleven levels or 300%) because the defendant previously had been convicted of
similar unscored conduct); United States v. Porter, 439 F.3d 845, 849-50 (8th Cir.
2006) (affirming an upward departure from criminal history category II to VI and an
upward variance (eight levels or 69%) to the statutory maximum sentence, in part,
because the defendant had pending state charges for kidnapping his own children).
On the other hand, we have reversed significant upward variances based on past
criminal conduct when the circumstances have not been extraordinary. See, e.g.,
United States v. Kendall, 446 F.3d 782, 785 (8th Cir. 2006) (reversing an upward
variance (nine levels or 155%) because the defendant’s criminal history and the
surrounding circumstances were not extraordinary).

                                          -8-
       Here, the relevant factors do not support the extent of the variance (eight levels
or 111%). There is nothing extraordinary about the nature and circumstances of the
offense nor about Rouillard’s substance abuse history, unpaid child support
obligations, and unemployment. Cf. United States v. Hodge, 469 F.3d 749, 757 (8th
Cir. 2006) (concluding the defendant’s drug addiction did not support a 168-month
downward variance); McDonald, 461 F.3d at 953 (deciding the defendant’s
employment history did not support a downward variance); Bueno, 433 F.3d at
1023-24 (concluding the defendant’s family responsibilities did not support a
downward departure).

       Rouillard’s past criminal conduct has been recognized, in part, by the applicable
criminal history category and upward departure. “We have previously cautioned
against substantial variances predicated upon characteristics of the individual
defendant for which the guidelines calculation already accounts.” McDonald, 461
F.3d at 954. Significant variances based on conduct accounted for in the Guidelines
results in unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct. See 18 U.S.C. § 3553(a)(6); McDonald,
461 F.3d at 954 (citing United States v. Myers, 439 F.3d 415, 418 (8th Cir. 2006)).

       The district court abused its discretion by giving too much weight to Rouillard’s
past criminal conduct, which had been partially recognized by the criminal history
category and the upward departure, and other unexceptional factors. Some upward
variance is appropriate; however, sentencing Rouillard to 120 months’ imprisonment
exceeds the range of reasonable sentences because it would create unwarranted
sentencing disparities.

III.  CONCLUSION
      We reverse Rouillard’s sentence and remand to the district court for
resentencing consistent with this opinion.
                       ______________________________

                                          -9-
