                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3626
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *     Appeal from the United States
      v.                                *     District Court for the Eastern
                                        *     District of Missouri.
Dwain Thomas Vaughn,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 14, 2007
                                Filed: March 25, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.

       Dwain Thomas Vaughn pled guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), and possession of cocaine base and marijuana
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court1
sentenced him to 151 months’ imprisonment. Vaughn appeals, asserting sentencing
errors. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court
affirms.


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
      At sentencing, the district court first reviewed the presentence report,
calculating the guidelines range as 151 to 188 months. Vaughn responded that there
were no departure motions. The court stated, “Finally, I am to impose a reasonable
sentence under the statute. Congress has enacted a statute which sets forth factors that
a Court is to consider in determining what a reasonable sentence is in each instance.”
The court then gave Vaughn the opportunity to speak. His counsel argued for a
downward variance because Vaughn had rehabilitated himself between his arrest in
2004, and the indictment and plea in 2006. After hearing this argument and the
government’s response, the district court stated that

       to reach the age of 24 and manage to receive ten prior convictions, the
       balance of which involved violent conduct, I cannot find under the
       totality of the circumstances that the presumptively reasonable guidelines
       in this case are not reasonable. The statutory purposes of sentencing,
       that is, deterrence, protecting the public, incapacitation, and punishment
       are served by a guideline sentence of 151 months.

        Reviewing a sentence, this court first determines whether the district court
committed a significant procedural error, “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence – including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597
(2007). If a defendant fails to object timely to a procedural sentencing error, the error
is forfeited and may only be reviewed for plain error. See United States v. Pirani, 406
F.3d 543, 549 (8th Cir. 2005) (en banc); United States v. Guarino, __ F.3d __, __ (8th
Cir. 2008), No. 07-2350, slip op. at 1-2 (8th Cir. Feb. 29, 2008). Under plain error
review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects
substantial rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997); Fed. R.
Crim. P. 52(b). If these conditions are met, an appellate court may exercise its
discretion to correct a forfeited error only if it “seriously affects the fairness, integrity,


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or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, quoting
United States v. Olano, 507 U.S. 725, 732 (1993).

       Vaughn asserts two procedural errors. He objected to neither in the district
court. Plain error review applies. See Pirani, 406 F.3d at 549; Guarino, __ F.3d at__,
No. 07-2350, slip op. at 1-2.

       First, he argues that the district court applied a presumption of reasonableness
to the guidelines, in violation of Rita v. United States, 127 S. Ct. 2456, 2465 (2007)
(“[T]he sentencing court does not enjoy the benefit of a legal presumption that the
Guidelines sentence should apply.”). The district court did so err when it said, “I
cannot find . . . that the presumptively reasonable guidelines in this case are not
reasonable.” (emphasis added). See Gall, 128 S. Ct. at 597; Rita, 127 S. Ct. at 2465.
This was plain error. See Johnson, 520 U.S. at 468 (“[W]here the law at the time of
trial was settled and clearly contrary to the law at the time of appeal – it is enough that
an error be ‘plain’ at the time of appellate consideration.”).

       To meet the third prong, that the error affected substantial rights, Vaughn “must
show a ‘reasonable probability,’ based on the appellate record as a whole, that but for
the error he would have received a more favorable sentence.” Pirani, 406 F.3d at 552.
See Guarino, __ F.3d at__, No. 07-2350, slip op. at 3. Vaughn does not meet his
burden. On the record as a whole, there is no indication that the district court would
have sentenced him more favorably had it not presumed the guidelines were
reasonable. Cf. United States v. Greene, 513 F.3d 904, 907-08 (8th Cir. 2008)
(remand for resentencing where district court explicitly stated it would have imposed
a sentence outside the guidelines if it had the opportunity); United States v. Huff, 514
F.3d 818, 820-21 (8th Cir. 2008) (same).

       Second, Vaughn contends that the district court procedurally erred by assuming
its duty was to impose a reasonable sentence, instead of a sentence sufficient but not

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greater than necessary. See 18 U.S.C. § 3553(a). Although the district court did state
that it was to impose a “reasonable sentence,” on the record as a whole, it is clear the
court followed the proper procedure by first calculating the guidelines range, asking
for departures, considering the § 3553(a) factors, and imposing a sentence. Vaughn
has not met his burden of establishing a plain error.

       “Assuming that the district court’s sentencing decision is procedurally sound,
the appellate court should then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 597. In contrast
to procedural errors, a defendant does not forfeit an attack on the substantive
reasonableness of a sentence by failing to object in the district court. See United
States v. Wiley, 509 F.3d 474, 476-77 (8th Cir. 2007). “A sentence within the
Guidelines range is accorded a presumption of substantive reasonableness on appeal.”
United States v. Robinson, __ F.3d __, __ (8th Cir. 2008), No. 07-1631, slip op. at 2
(8th Cir. Feb. 21, 2008).

       Vaughn believes that the sentence is substantively unreasonable because the
district court improperly failed to consider his actual rehabilitation efforts or lack of
recent criminal history, as part of its § 3553(a) analysis. Vaughn’s counsel
specifically advanced these factors at the sentencing hearing. The district court
rejected them, citing Vaughn’s significant violent criminal history. The court based
its sentence on the need for deterrence, protection of the public, incapacitation, and
punishment. See 18 U.S.C. § 3553(a)(2). The district court adequately considered
Vaughn’s arguments for a downward departure, and did not abuse its discretion in
imposing a sentence at the bottom of the guidelines range.

      The judgment of the district court is affirmed.
                     ______________________________




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