                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2895
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
James Shannon,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 16, 2005
                                Filed: July 14, 2005
                                 ___________

Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

      James Shannon pled guilty to making a false statement in violation of 18
U.S.C. § 1001(a)(2). Although the presentence report recommended an applicable
guideline sentencing range of six to twelve months’ imprisonment, the district court1
sentenced Shannon to a term of 58 months’ imprisonment. Shannon appeals, and we
affirm.



      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
       Shannon’s conviction arose from statements he made while ostensibly
cooperating with law enforcement officers in the investigation of drug trafficking
offenses. After making an agreement with officers that he would conduct a controlled
transaction to purchase methamphetamine from a suspect, Shannon contacted the
suspect and arranged to purchase a different substance, ephedrine, rather than
methamphetamine. At the controlled transaction, Shannon gave the suspect $500 in
exchange for a bag of ephedrine, and then provided the bag to police. When an
officer expressed skepticism that the substance actually was methamphetamine,
Shannon assured him that it was the drug. Testing revealed, however, that the
substance was ephedrine, and Shannon subsequently admitted to making false
statements to the officers by representing that the substance he purchased was
methamphetamine when he knew it was ephedrine.

      In arriving at a recommended sentencing range under the federal sentencing
guidelines, the United States Probation Office calculated a total offense level of four,
taking into account a base offense level of six for a violation of 18 U.S.C.
§ 1001(a)(2), see USSG § 2B1.1(a)(2), and a two-level downward adjustment for
acceptance of responsibility, see USSG § 3E1.1(a). The probation office calculated
that Shannon’s extensive criminal history placed him in category VI. The
corresponding sentencing range under the guidelines was six to twelve months’
imprisonment. The statutory maximum term of imprisonment was five years. 18
U.S.C. § 1001(a).

      Prior to sentencing, the district court ruled that in light of Blakely v.
Washington, 542 U.S. 296 (2004), the federal sentencing guidelines were
unconstitutional. The court explained, “I agree with the approach of giving the
guidelines due consideration in imposing a sentence. I do not, however, consider
myself bound by them.” (Memorandum of July 21, 2004.)




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       At sentencing, the district court reiterated that “[a]lthough in this particular
case the sentencing guidelines do not have any enhancements which would implicate
the fact finding requirements by a jury or the indictment by the government of Mr.
Shannon, I, nevertheless, think that they are unconstitutional in general.” (S. Tr. at
9). Shannon’s counsel agreed that the guidelines were unconstitutional and should
not be viewed as mandatory.

       The district court observed that “the defendant has a horrible criminal record
as both counsel acknowledge.” (S. Tr. at 23). The district court described a litany of
prior offenses for which Shannon was convicted, including possession of marijuana,
felony possession of marijuana, selling LSD, operating a vehicle while intoxicated,
second degree theft, possession of controlled substances, forgery, third degree theft,
distribution of an imitation controlled substance (three separate times), and driving
under suspension. (Id. at 21-26). The court also noted numerous parole revocations
on Shannon’s record. The court described the criminal history as “abominable,” and
“some of the worst that I’ve seen since I have been on the bench.” (Id. at 29). The
court observed that the criminal history was “consistent, one offense right after
another,” and that “the state courts have been quite lenient toward this defendant.”
(Id.).

       In summary, the district court opined that “[i]f that isn’t a career criminal I
don’t know what could be said to fall under that category.” (S. Tr. at 30). The court
explained that “if the guideline range were to be applied here, which would be a
maximum sentence of 12 months, that would be ridiculous.” The court stated that if
the guidelines were mandatory, then it would depart upward based on the fact that
“his criminal history category of VI understates the likelihood that he is going to
commit further crimes . . . [a]nd also underrepresents the seriousness of his criminal
history.” (S. Tr. at 30-31). Specifically, the court concluded that under the
guidelines, it would depart upward by increasing the offense level from 4 to 17, thus
arriving at a sentencing range of 51 to 63 months. The district court also made clear

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that “in the absence of the sentencing guidelines,” it would sentence Shannon to 58
months’ imprisonment. (S. Tr. at 32).

        Shannon argues that the district court’s upward departure from the guidelines
was unreasonable, and that the sentence imposed was excessive. Although the parties
filed their briefs before the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), we interpret Shannon’s argument to be that either his sentence was
imposed as a result of an incorrect application of the sentencing guidelines (because
the departure was impermissible), see 18 U.S.C. § 3742(f)(1), or that the overall
sentence was unreasonable with regard to the factors set forth in 18 U.S.C. § 3553(a).
See Booker, 125 S. Ct. at 765.

       In Booker, the Supreme Court held that certain applications of the mandatory
sentencing guidelines violated the Sixth Amendment, and, as a remedy, declared the
guidelines effectively advisory in all cases. The Court directed that the courts of
appeals should review sentences imposed under the advisory guideline regime for
“unreasonableness” with regard to 18 U.S.C. § 3553(a). Since Booker, we have
explained that in imposing sentence under the new regime, a district court should
determine the advisory guideline sentencing range, based on the total offense level,
criminal history category, and any appropriate departures from the guidelines. United
States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005). The district court also may
vary from the advisory guideline range based on the factors set forth in § 3553(a), so
long as such a variance is reasonable. See Booker, 125 S. Ct. at 765; United States
v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005).

      Although the district court was operating without the benefit of Booker or our
decisions applying Booker, we believe the court’s methodology was consistent with
what has been prescribed under the current regime. The court determined the
applicable guideline range, and explained its conclusion that an upward departure was
warranted. The court further concluded that the sentencing guidelines were not

                                         -4-
binding on the court, but said that it was giving “due consideration” to the guidelines,
and imposed a sentence identical to the term of imprisonment that would have applied
under the court’s view of the applicable guidelines. We thus discern no procedural
error that requires a remand for resentencing.

       We also conclude that the district court committed no substantive error in
imposing sentence. We review the court’s decision to depart upward under the
advisory guidelines for abuse of discretion, Mashek, 406 F.3d at 1017, and we believe
that the departure articulated by the district court withstands review. Our cases
recognize that even when a defendant scores sufficient criminal history points to
place him in category VI, the district court may depart upward on the ground that
even the highest category seriously under-represents the seriousness of the
defendant’s criminal history. E.g., United States v. Gonzales-Ortega, 346 F.3d 800,
802 (8th Cir. 2003); United States v. Aguilar-Lopez, 329 F.3d 960, 963 (8th Cir.
2003). Shannon’s criminal history scored a total of 31 points, based on 12 prior
felonies and four misdemeanors, while only 13 points are necessary to establish
placement in category VI. The court considered several other factors that are
appropriately weighed in arriving at an upward departure under USSG § 4A1.3 –
namely, that the offense of conviction involved a scheme that was very similar to
three of Shannon’s prior convictions, see United States v. Carey, 898 F.2d 642, 646
(8th Cir. 1990), that Shannon often committed “one offense right after the other”
during his 20-year criminal career, see United States v. Washington, 109 F.3d 459,
462 (8th Cir. 1997), that Shannon had a terrible record of following rules while on
parole, see United States v. Yahnke, 395 F.3d 823, 825-26 (8th Cir. 2005), and that
the state courts had treated Shannon with leniency when fashioning punishment for
a long series of prior convictions. See United States v. Lang, 898 F.2d 1378, 1380
(8th Cir. 1990). The decision to depart upward was thus supported by several
aggravating circumstances, and the totality of the circumstances leads us to conclude
that there was no abuse of discretion in either the conclusion that departure was
warranted or the extent of the departure.

                                          -5-
       We also conclude that the sentence imposed was reasonable with regard to
§ 3553(a). In light of our conclusion that the upward departure from the guidelines
was permissible, the sentence imposed was consistent with the now-advisory
guidelines, and this is generally indicative of reasonableness. See 18 U.S.C.
§ 3553(a)(4), (5). Even assuming the departure was excessive, however, the district
court made clear that it would have imposed the same sentence even without regard
to the sentencing guidelines, so any error in the guideline computation would not
require a remand as long the sentence is reasonable with regard to § 3553(a). See
Mashek, 406 F.3d at 1017. Under Booker, as noted, the court has authority to tailor
the sentence in light of statutory concerns other than the sentencing guidelines. 125
S. Ct. at 757.

       For reasons similar to those discussed in connection with the upward departure,
we believe that the sentence of 58 months’ imprisonment is reasonable with regard
to § 3553(a). The statute directs the sentencing court to consider, among other things,
“the history and characteristics of the defendant,” as well as the need for the sentence
“to promote respect for the law,” “to provide just punishment for the offense,” “to
afford adequate deterrence to criminal conduct,” and “to protect the public from
further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (2). The district court
plainly believed that in view of Shannon’s extensive criminal history and
incorrigibility, a firm sentence was necessary to further these objectives. We believe
this conclusion was not unreasonable.

      The judgment of the district court is affirmed.
                     ______________________________




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