                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1543
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Southern
                                        * District of Iowa.
Mark Edward Myers,                      *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: October 13, 2005
                                Filed: March 2, 2006
                                 ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BEAM, Circuit Judge.

       Mark Edward Myers pleaded guilty to unlawful possession of an unregistered
firearm in violation 26 U.S.C. §§ 5841, 5845(a)(2), 5861(d), and 5871. The district
court determined that the advisory guidelines sentence was thirty-seven to forty-six
months, and sentenced Myers to twelve months and one day. The government appeals
the sentence, as unreasonable. We remand for further fact-finding and reconsideration
of Myers' sentence.
I.    BACKGROUND

       On November 20, 2003, Myers and a friend, Shawn, met a man, Gary, at a bar.1
The three left the bar to go to Gulfport, Illinois, but stopped at Myers' house on the
way. At this point the accounts of events diverge wildly, from Myers' girlfriend's
friend's tale of a pre-meditated attempted murder and robbery to Myers' presentence
interview account of a valiant attempt to defend his girlfriend's honor in the face of
Gary's disparaging remarks, followed by Myers acting as peacemaker. However, it
is undisputed that Myers hit and kicked Gary and that Myers used the offending
firearm in connection with this assault.

       After the altercation, Myers took Gary to the Lee County, Iowa, Sheriff's
Office, where they both told officers that Myers had found Gary in a parking lot
already beaten up. Myers then transported Gary to the hospital, because Gary said he
could not afford an ambulance. A Sheriff's deputy met them at the hospital and
advised Myers that he could go home. Gary was treated for facial injuries, abrasions
to his left shoulder, and a large laceration to his head, receiving twelve to fourteen
staples in the top of his head.

       Later the same morning, Myers' girlfriend's friend called the Sheriff's Office to
report that Myers and Shawn had assaulted Gary. Sheriff's deputies stopped Myers
on his way to work, and Myers confessed to hitting Gary with a shotgun. Myers
accompanied the Sheriff's deputies to his house and provided the clothing he had been
wearing and the shotgun. He told the deputies that he bought the shotgun from his
cousin several years earlier, which the cousin confirmed. The shotgun was




      1
      The facts are gathered primarily from the Presentence Investigation Report,
which contains the accounts of several witnesses. However, these accounts conflict
in some important details, and discrepancies have been noted.

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determined to have a sixteen-inch barrel and an overall length of twenty-three and
nine-sixteenths inches.

       On January 22, 2004, Myers pled guilty to assault with intent to inflict serious
injury in Iowa state court. On September 20, 2004, in the United States District Court
for the Southern District of Iowa, Myers pled guilty to unlawful possession of an
unregistered firearm. There was no written plea agreement filed with the court. On
January 24, 2005, Myers appeared for sentencing. The district court determined that
the guidelines sentence was thirty-seven to forty-six months, based on the Presentence
Investigation Report. The guidelines sentence was calculated from a base offense
level of eighteen, a three-level adjustment for acceptance of responsibility, a two-level
increase because the offense involved a destructive device, and a four-level increase
because the firearm was used in connection with another felony offense.

       At sentencing, Myers argued that he should be sentenced to the eighteen to
twenty-four month guidelines sentence without the level increases, requesting a
sentence of either probation or eighteen months. He argued that the two-level increase
for possessing a destructive device should not apply, since the gun was not readily
capable of launching a missile or otherwise being a destructive instrumentality. Myers
also argued that since he had been punished separately in the state court for some of
the conduct, the four-level increase for the firearm being used in connection with
another felony offense should not apply. The government argued that Myers should
be sentenced at the bottom of the guidelines range: thirty-seven months.

       The district court sentenced Myers to twelve months and one day. The court
considered the nature of the circumstances of the present offense, including the victim,
Myers' characteristics, and the seriousness of the offense. The court found that
probation was inappropriate, considering the seriousness of the offense, the need for
deterrence and the need to send a message. The court also determined that Myers
needed rehabilitation and that he had made a start in rehabilitation through successful

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completion of an outpatient alcohol class. The government appeals the sentence as
unreasonable.

II. DISCUSSION

      A.     Standard of Review

      Under the advisory sentencing guidelines, we engage in a two-step inquiry on
review. United States v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir. 2005). We first
"examine de novo whether the district court correctly interpreted and applied the
guidelines." Id. at 1017. We then review the sentence imposed for unreasonableness,
taking into account the factors present in 18 U.S.C. § 3553(a). United States v.
Booker, 543 U.S. 220, 261 (2005).

       We have determined that a sentence imposed within the guidelines range is
presumptively reasonable. United States v. Cawthorn, 429 F.3d 793, 802 (8th Cir.
2005). While it does not follow that a sentence outside the guidelines range is
unreasonable, we review a district court's decision to depart from the appropriate
guidelines range for abuse of discretion. United States v. Haack, 403 F.3d 997, 1003
(8th Cir.), cert. denied, 126 S. Ct. 276 (2005). Thus, "[a] discretionary sentencing
ruling . . . may be unreasonable if a sentencing court 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." Id. at 1004.




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      B.     Reasonableness of the Sentence Under 18 U.S.C. § 3553(a)

       Because neither party appeals the district court's calculation of the thirty-seven
to forty-six month guidelines sentence, the sole issue is whether the imposition of a
twelve-month-and-one-day sentence was unreasonable. The government argues that
the sentence is unreasonable because the district court erred (1) by giving too much
weight to Myers' lack of criminal history since the Criminal History Category of the
sentencing guidelines matrix adequately accounts for this factor; (2) both by factually
determining that Myers' had his family's support and by considering this factor in
sentencing; and (3) by considering the needs of Myers' family for economic and
emotional support as a factor in sentencing.

       We cannot entirely agree with the government's position. Myers' lack of a
criminal history, while reflected in the advisory sentencing guidelines, was properly
considered as part of "the history and characteristics of the defendant." 18 U.S.C. §
3553(a)(1). The availability of support from Myers' family and his family's need for
his support are not specifically mentioned in section 3553(a). Though the district
court did not err as a matter of course in considering these facts, the problem is that
the record does not reflect how these facts connect to a relevant section 3553(a) factor.

      The issue that we face is whether a twelve-month-and-a-day sentence is
unreasonable in light of the section 3553(a) factors considered at sentencing: the
nature of the circumstances of the current offense, including the victim, Myers'
characteristics, and the seriousness of the offense. Nothing about the victim was
mentioned at sentencing, and the district court termed the offense "extremely serious."
 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

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been found guilty of similar conduct. 18 U.S.C. § 3553(a)(6). Thus, if the district
court's departure is based merely on a lack of criminal history, the significant
divergence from the guidelines range would be unreasonable.

       However, we also recognize that there is no numerical formula to determine
whether a sentence is unreasonable and that significant deviations from guidelines
sentences have been affirmed post-Booker. See, e.g., United States v. Rogers, 423
F.3d 823, 829-30 (8th Cir. 2005) (affirming increase from 57-71 month guidelines
range to 360-month sentence), United States v. Pizano, 403 F.3d 991, 992 (8th Cir.
2005) (affirming sentence of 18 months, which was calculated beginning with a
mandatory minimum of 120 months and reduced by the guidelines' safety valve and
downward departure for substantial assistance). Though we have affirmed sentences
within the guidelines range when the district court did not "categorically rehearse"
each of the factors in section 3553(a), United States v. Dieken, 432 F.3d 906, 909 (8th
Cir. 2006), we here reiterate our concern that district courts elucidate their reasoning
when sentencing defendants in order to assist reviewing courts and to avoid needless
appeals. United States v. Engler, 422 F.3d 692, 696-97 (8th Cir. 2005) ; see also
United States v. Dumorney, 949 F.2d 997, 998 (8th Cir. 1991).

       Additionally, in this case, we cannot evaluate the nature of the offense conduct,
since the Presentence Investigation Report contained conflicting accounts from Myers
and other witnesses interviewed by the Lee County, Iowa, Sheriff's Office. Because
both parties stated that there was no factual dispute, the district court did not address
the varying accounts. On appeal, we cannot evaluate the veracity of Myers'
explanation of the events and, so, must remand for further fact-finding.

III.   CONCLUSION

      We remand for imposition of sentence following more explicit and thorough
consideration of all factors enumerated in section 3553(a), without expressing any
opinion on the reasonableness of the sentence that should be imposed. United States
v. Feemster, 435 F.3d 881, 884 (8th Cir. 2006).

                                          -6-
BYE, Circuit Judge, dissenting.

       The majority concludes the district court failed to adequately explain its reasons
under 18 U.S.C. § 3553(a) for imposing a sentence of twelve months and one day. It
further concludes the district court made insufficient fact findings to evaluate the
nature of the offense conduct. Because the sentencing transcript reveals the district
court fully considered the relevant § 3553(a) factors and was fully aware of the
relevant conduct at the time of sentencing, I respectfully dissent.

      As noted by the majority, the sole issue before this court is whether the sentence
imposed by the district court was reasonable in light of the § 3553(a) factors. I believe
it was, and contrary to the conclusion reached by the majority, the district court
followed our accepted procedures for calculating a reasonable sentence. See e.g.,
United States v. Winters, 416 F.3d 856, 859 (8th Cir. 2005).

        The majority first expresses concern because the district court described the
offense as "extremely serious," yet made no mention of the victim as part of its
§ 3553(a) analysis. This assertion is simply wrong. The transcript of the sentencing
hearing reveals the district court fully considered the nature and circumstances of the
offense, as well as the victim. The court described Myers' conduct as "kicking people
in the head with steel-toed boots or a gun," and characterized it as "violent activity .
. . driven by alcohol." Sent. Tr. at 7. When the court questioned Myers, it asked:
"And where did you learn such activity? This wasn't in the Marines, I hope, was it,
to beat up people like you did this victim?" Sent. Tr. at 14. Later, as the district court
was preparing to impose its sentence, it expressly stated it had "considered the nature
of the circumstances of the present offense, including the victim in this case . . . the
seriousness of the offense, which I consider extremely serious – any time you involve
guns and beating up human beings, it's a serious offense." Sent. Tr. at 17. These
excerpts make it readily apparent the seriousness of offense and impact on the victim
were expressly considered, and our cases require no further showing to demonstrate
these § 3553(a) factors were taken into account. We have repeatedly stated: "Nothing

                                           -7-
in § 3553(a) . . . requires 'robotic incantations' that each statutory factor has been
considered." United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (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."); United States
v. Thompson, 408 F.3d 994, 997 (8th Cir. 2005) (per curiam) (affirming an upward
departure where the district court simply stated it had "'considered all the factors set
forth at' 18 U.S.C. § 3553(a)."). My review of this record leads me to the
unmistakable conclusion the district court was keenly aware of its duty to consider the
offense and the victim, and did so.

        Next, the majority concludes the only factor considered by the district court
"that weighs toward a more lenient sentence is Myers' lack of criminal history," and
that standing alone was insufficient to justify the court's sentence. Once again, I
respectfully disagree.

        The district court gave careful consideration to the complete history and all the
characteristics of the defendant. In addition to Myers' lack of criminal history, the
sentencing transcript reveals he served honorably for ten years in the United States
Marine Corps. Prior to his offense, he had been consistently employed, was working
toward a criminal justice degree, and had made arrangements for future employment
in the event he was not incarcerated. The record reflects the district court considered
Myers' difficulties with alcohol, the steps he had taken to overcome his alcohol
dependency, and his need for further rehabilitation. Finally, the court was aware
Myers was married with two young children. After explicitly considering these
additional characteristics, the need for deterrence, and the guidelines, the court
concluded: "I don't think that I can give you probation because it would not be in
keeping with the statute or in my sense of what's a fair sentence. On the other hand,
I think it's clear that you need rehabilitation, and while you may have a good start, it's

                                           -8-
only that, a start, and there are other sentences available to me." Sent. Tr. at 17. In
the end, the district court concluded the appropriate sentence was twelve months and
one day. Based on the district court's careful consideration of the circumstances
surrounding this case, and its thorough analysis of the § 3553(a) factors, I cannot say
the sentence imposed was unreasonable.

       Finally, the majority asserts we must remand for further fact finding because
the district court failed to resolve the conflicting accounts of the offense as recounted
by Myers and other witnesses and set forth in the Presentence Investigation Report
(PSR). I disagree.

       A PSR is not evidence. United States v. Poor Bear, 359 F. 3d 1038, 1041 (8th
Cir. 2004). "If the defendant objects to any of the factual allegations contained therein
on an issue on which the government has the burden of proof . . . the government must
present evidence at the sentencing hearing to prove the existence of the disputed
facts." Id. Facts which have not been so proved may not be relied on by the district
court at sentencing. Id. Here, Myers steadfastly denied any suggestion he ever
intended to rob or murder the victim. Thus, the onus was on the government, if it
believed it could prove Myers' planned to murder the victim, to present evidence of
such intent. It chose not to. At the sentencing hearing the government specifically
stated there were no factual disputes for the court to resolve. Because the government
did not present any evidence and expressly waived any claim of a relevant factual
dispute, it may not now complain that otherwise relevant conduct was not taken into
account at sentencing.

       The district court correctly recognized it was prohibited from relying on the
disputed information contained in the PSR. Moreover, it was not obliged to ferret out
the evidence necessary to resolve the dispute – a dispute the government failed to
advance. Accordingly, no error occurred and remand is unnecessary. See United
States v. Hudson, 129 F.3d 994, 995 (8th Cir. 1997) (holding when the government
failed to present sufficient evidence at sentencing, the record would not be reopened
at resentencing).

                                          -9-
For the reasons stated herein, I respectfully dissent.
                 ______________________________




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