                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3580
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Christopher Stoner

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                             Submitted: June 12, 2015
                              Filed: August 3, 2015
                                  ____________

Before GRUENDER, BEAM, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

      Christopher L. Stoner argues that the district court1 abused its discretion by
imposing a substantively unreasonable 108-month sentence. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

      1
        The Honorable David Gregory Kays, Chief Judge, United States District Court
for the Western District of Missouri.
       Undercover police pulled into a driveway while Stoner was loading his car with
stolen goods during a residential burglary. Stoner leapt into his car, shoved it in
reverse, and accelerated backward, ramming the unmarked police car as an officer
tried to get out. He hit the car so hard his car partly jumped onto the hood of the
police car. Accelerating forward, he hit the garage door and the house. Stoner
resisted arrest, but was quickly subdued. In a later search of Stoner’s bedroom,
detectives discovered twenty 9mm rounds and nine .45 caliber rounds of ammunition.

       Stoner pled guilty to being a felon in possession of ammunition in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). The Presentence Investigation Report
calculated his total offense level as 17, his criminal history as category IV, making
the guideline range of 37-46 months. The maximum sentence was 120 months. The
district court sentenced Stoner to 108 months.

        Stoner asserts no procedural errors. See Gall v. United States, 552 U.S. 38,
51 (2007) (reviewing a sentence, the court “must first ensure that the district court
committed no significant procedural error”). This court must “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id. An abuse of discretion is (1) failing to consider a relevant factor that
should have received significant weight; (2) giving significant weight to an improper
or irrelevant factor; or (3) considering only the appropriate factors but in weighing
them, committing a clear error of judgment. United States v. Williams, 624 F.3d 889,
896-97 (8th Cir. 2010).

      After hearing both parties, the judge must consider the § 3553(a) factors. Gall,
552 U.S. at 50-51. These factors include the nature and circumstances of the offense
and the history and characteristics of the defendant, the need to promote respect for
the law and protect the public, the sentencing range, and the need to avoid
unwarranted sentence disparities. See 18 U.S.C. § 3553(a). A court must explain an


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unusually lenient (or unusually harsh) sentence “with sufficient justifications,” but
an appellate court may not require “extraordinary circumstances to justify a sentence
outside the Guidelines range.” Gall, 552 U.S. at 46-47. The appellate court “must
give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Id. at 51. “[T]hat the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal.” Id.

       Stoner contends that the district court made a clear error of judgment in
weighing the § 3553(a) factors. Stoner had eight prior felonies and five misdemeanor
convictions, spanning three decades, most involving stealing, burglary, or tampering.
The district court discussed the § 3553(a) factors, stating “there’s a good reason why
we don’t want eight time convicted felons to have guns or ammunition. Bad things
follow.” It continued, “you’re just stealing everything – anything you want.” At least
four times, Stoner either fled from police or lied to them, showing a pattern of evasion
and dishonesty. The district court found that this criminal history showed a lack of
respect for the law. The court also noted that the officers or other citizens could have
been seriously injured when Stoner rammed the police car. The court emphasized the
need to protect the public from a pattern of behavior likely to continue.
Acknowledging the lower guideline range, the court chose an upward variance, based
on Stoner’s “well established criminal history” and the “need to protect the public.”

      Stoner stresses that the sentencing guidelines already consider these factors.
Yet “factors that have already been taken into account in calculating the advisory
Guidelines range can nevertheless form the basis of a variance.” United States v.
David, 682 F.3d 1074, 1077 (8th Cir. 2012). The district court did not ignore the
guidelines or Stoner’s acceptance of responsibility. It decided that in this case the
guidelines did not accurately reflect Stoner’s history and conduct.




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       Stoner contends that this variance causes unwarranted sentence disparities
because similar defendants will not receive similar variances. But see, e.g., United
States v. Griffin, 418 Fed. Appx. 574, 574-75 (8th Cir. 2011) (66 month upward
variance from a 63-78 month guideline range with 4 criminal history points). The
question is not whether Stoner’s sentence is consistent with any other sentence. The
question is whether the judge abused his discretion in giving this particular defendant
a 108-month sentence. The Supreme Court “specifically rejected using the
percentage of a departure or variance as the standard for determining the strength of
the justifications required for a specific sentence.” David, 682 F.3d at 1077. While
unwarranted disparity is one factor the district court considers, it is not the only
factor; the sentencing guidelines are a starting point, not the ending point. See Gall,
552 U.S. at 49 (“Guidelines should be the starting point and the initial benchmark.
The Guidelines are not the only consideration, however.”). “[S]ubstantive appellate
review in sentencing cases is narrow and deferential.” United States v. Feemster,
572 F.3d 455, 464 (8th Cir. 2009) (en banc). Sentencing courts have a “special
competence” to make “defendant-specific determinations.” Id. quoting United States
v. Gardellini, 545 F.3d 1089, 1095 (D.C. Cir. 2008). See Rita v. United States, 551
U.S. 338, 357-58 (2007) (“The sentencing judge has access to, and greater familiarity
with, the individual case and the individual defendant before him than the
Commission or the appeals court.”). The district court did not abuse its discretion in
exercising its special competence here.

       Stoner further objects that the district court punished him for challenging the
facts of his arrest, thus relying on an improper factor. At sentencing, Stoner claimed
the police rammed his car. Two police officers testified to the contrary. Finding
them credible, the district court called Stoner’s claim “frivolous,” a “waste of time,”
and “ridiculous.” In fact, the district court questioned (but did not deny) Stoner’s
acceptance-of-responsibility. The court mentioned the claim later when balancing it
against Stoner’s honesty and willingness to take responsibility. See 18 U.S.C. § 3661


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(“No limitation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a court . . . may
receive and consider for the purpose of imposing an appropriate sentence.”). The
district court certainly did not give “significant weight to an improper or irrelevant
factor.” See Williams, 624 F.3d at 896.

      The sentence is not substantively unreasonable.

                                    *******

      The judgment is affirmed.
                     ______________________________




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