                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-3315
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                         Jackson Abed Rodriguez-Robles

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                             Submitted: April 17, 2020
                               Filed: July 24, 2020
                                  [Unpublished]
                                  ____________

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
                              ____________

PER CURIAM.

        Jackson Rodriguez-Robles (“Rodriguez”) pleaded guilty to felony possession
of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Rodriguez kidnapped, beat, and
terrorized his pregnant girlfriend with a gun for three days. The district court1 varied
upward 15 months and sentenced Rodriguez to 120 months’ imprisonment—the
statutory maximum. We affirm.

                                   I. Background
       On December 10, 2018, police learned that Rodriguez had kidnapped his
girlfriend. A confidential informant (CI) told police that Rodriguez held the woman
in an apartment, had been beating her since the prior night, and was armed with a
firearm and bulletproof vest. Officers forced entry, and Rodriguez attempted to flee
by leaping from a second-floor window. He was quickly apprehended.

       The officers described the victim as having blackened eyes, swollen lips, and
abdominal bruising. The victim stated that she traveled to Northwest Arkansas on
December 7 because she was pregnant with Rodriguez’s child. Rodriguez, believing
the victim had cheated on him, took her to the apartment and physically abused her.
The victim told the officers that Rodriguez drugged her to dull the pain and attempted
to abort the pregnancy; that he beat her with his fists, a pistol, a knife sharpener, and
a beer bottle; and that he forced her to perform oral sex. They traveled to a different
address on December 8. There, Rodriguez fired a gun at her. Worried the gunshot
would draw police attention, Rodriguez took the victim back to the apartment.

      Within the apartment, officers discovered a gun, a bulletproof vest, drugs, drug
paraphernalia, Endocet pills, a cell phone, and $595. Rodriguez admitted that he
owned the gun. Four videos on the phone showed him terrorizing the victim. In one,
the sound of someone working the action of the gun was audible. In another, while
gunshots were fired, Rodriguez told the victim he would kill her. Officers also found
paper towels and rags coated with dried blood.


      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

                                          -2-
        Rodriguez pleaded guilty to being a felon in possession of a firearm. The
government prepared a presentence investigation report (PSR). Neither party objected
to its factual allegations. Rodriguez’s recommended Guidelines range was 84 to 105
months’ imprisonment.

       At sentencing, the government requested the district court vary upward to the
statutory maximum of 120 months’ imprisonment. In its decision, the court first
considered aggravating factors. It pointed to the circumstances of the offense and
noted the case involved a stolen gun, which “was used as [an] instrumentality of
brutality.” Sent. Tr. at 47, United States v. Rodriguez-Robles, No.
5:19-cr-50026-TLB-1 (W.D. Ark. Nov. 1, 2019), ECF No. 41. The court also
recounted the facts contained in the victim’s statements. The court found her narrative
especially credible given its (1) timing—the victim did not have time to make up a
story because she did not know aid was coming—and (2) consistency with the
physical evidence. The court discussed Rodriguez’s criminal history and noted how
quickly Rodriguez acquired the gun after his release from prison. It also weighed his
use of violence during a previous burglary. Additionally, Rodriguez had already
served other substantial sentences yet failed to improve his conduct. The court found
those facts demonstrated a lack of respect for the law.

      As for mitigating factors, the court considered that Rodriguez likely had a
rough childhood. It also weighed Rodriguez’s alleged addiction issues. It commended
Rodriguez on his remorsefulness and honesty with the court. And it noted that some
of Rodriguez’s criminal history occurred more than a decade before sentencing.
Nonetheless, after considering all of the 18 U.S.C. § 3553(a) factors, the court varied
upward and sentenced Rodriguez to 120 months’ imprisonment.

                                   II. Discussion
      Rodriguez argues that his sentence is substantively unreasonable. We review
the substantive reasonableness of a sentence “under a deferential abuse of discretion

                                         -3-
standard.” United States v. Pepper, 518 F.3d 949, 951 (8th Cir. 2008). Rodriguez
“bears the burden of proving that his sentence is unreasonable.” United States v.
Luleff, 574 F.3d 566, 569 (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. Cook, 698 F.3d 667, 670 (8th Cir. 2012) (internal quotation omitted).
Upon review, “we . . . take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation omitted). “[W]e are not
permitted to apply a presumption of unreasonableness if the sentence is outside the
Guidelines range. Instead, we . . . 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 461–62 (cleaned up).

       Rodriguez argues that the district court abused its discretion by varying upward
to the statutory maximum. First, he argues that the court placed too much weight on
the circumstances of the offense because (1) the PSR described those circumstances
via statements, see, e.g., PSR at 5, ¶ 21, United States v. Rodriguez-Robles, No. 5:19-
cr-50026-TLB-1 (W.D. Ark. Aug. 28, 2019), ECF No. 26 (indicating that the victim
“said Rodriguez had beaten her with his fists and with a pistol” (emphasis added)),
and (2) those circumstances served as the basis for pending state charges.2 Second,

      2
        Importantly, Rodriguez does not argue that the district court procedurally
erred in relying on the facts contained in the PSR. See United States v. Cottrell, 853
F.3d 459, 462–63 (8th Cir. 2017). Instead, he claims that circumstances described as
statements should not be given substantial weight or assumed true. But to call a
PSR’s facts into question, we require a party to specifically and clearly object to
them. United States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008). That standard
applies even when the facts are described through statements. See Pepper, 747 F.3d
at 524 (finding that the district court did not err in relying on facts in a PSR that were
mostly in the form of statements because the defendant did not specifically and

                                           -4-
Rodriguez argues that his criminal history is overstated because many of the offenses
occurred when he was young.

       Rodriguez’s arguments fail. “We afford the court wide latitude to weigh the
§ 3553(a) factors in each case and assign some factors greater weight than others in
determining an appropriate sentence.” United States v. White, 816 F.3d 976, 988 (8th
Cir. 2016) (internal quotation omitted). As Rodriguez admits, the court considered
the § 3553(a) factors. See Appellant’s Br. at 17. That the circumstances are described
in the PSR via statements does not alter their relevance or weight, especially given
that Rodriguez did not clearly object to their veracity. See Pepper, 747 F.3d at 524.
Further, regardless of their use in other pending matters, those circumstances are
relevant because they describe Rodriguez’s use of his illegally-possessed gun. See
United States v. Porter, 439 F.3d 845, 849 (8th Cir. 2006) (“The factual predicate for
the district court’s consideration of the pending [state] charges is not at issue. [The
defendant] did not object to the PSR’s statement of the facts underlying the state
charges and they are deemed admitted.”); see also United States v. Barrett, 552 F.3d
724, 725 (8th Cir. 2009) (describing the defendant’s use of his illegally-possessed
firearm). “[G]iven the facts of this case,” the district court permissibly exercised its
discretion. United States v. Thorne, 896 F.3d 861, 866 (8th Cir. 2018) (per curiam).

      With respect to Rodriguez’s criminal history, the district court took the passage
of time and the nature of the offenses into account. Even so, the district court found
that Rodriguez’s criminal history justified an upward variance. The district court’s
variance is similar to one we upheld in Barrett, 552 F.3d at 726–27. There, the
defendant stole a vehicle and brandished, struck a friend with, and fired a gun. Id. at
725. He pleaded guilty to the related charges, and the district court properly
calculated the Guidelines range as 84 to 105 months’ imprisonment. Id. at 726–27.


clearly object to their veracity). Rodriguez’s arguments at sentencing did not satisfy
this standard. See id.

                                          -5-
“[T]he court varied upward and imposed a sentence of 120 months.” Id. at 726. That
decision was based “on [the defendant’s] past history of assault against multiple
victims, his admitted drug use of a variety of street drugs, . . . and his likelihood of
committing yet another violent offense.” Id. at 727.

       Similar to Barrett, the district court here varied upward 15 months because of
the circumstances of the offense and Rodriguez’s criminal history. Ample evidence
supported that decision. As for the circumstances, the court found it very worrisome
that the gun Rodriguez illegally possessed “was the instrumentality of the terror that
was perpetrated on [the victim].” Sent. Tr. at 50. The record supports that concern:
the victim stated that Rodriguez beat her with the gun, and videos indicate that he
fired the gun while threatening her. As for Rodriguez’s criminal history, Rodriguez
had served multiple extended prison terms and still continued to commit violent
offenses. See Barrett, 552 F.3d at 727 (varying upward because of the defendant’s
violent history and the likelihood of future violent conduct). The court noted how
quickly Rodriguez acquired a gun after his release and his willingness to use the gun
on the victim. These facts underscored his criminal history and indicated that he was
a threat to the public. They also support the court’s finding that Rodriguez lacked
respect for the law. “Giving the district court due deference, we do not find
[Rodriguez’s] sentence unreasonable.” Id.

                                 III. Conclusion
      For the foregoing reasons, we affirm the district court.
                      ______________________________




                                          -6-
