                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 07-1212
                                ________________

United States of America,              *
                                       *
            Appellee,                  *
                                       *      Appeal from the United States
      v.                               *      District Court for the
                                       *      District of South Dakota.
Darrell Jones,                         *
                                       *
            Appellant.                 *
                                ________________

                            Submitted: October 17, 2007
                                Filed: December 11, 2007
                               ________________

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                            ________________

GRUENDER, Circuit Judge.

      Darrell Jones pled guilty to intentional damage to property in violation of 18
U.S.C. §§ 1152 and 1153 and S.D. Codified Laws § 22-34-1 pursuant to a plea
agreement. The district court1 sentenced Jones to 50 months’ imprisonment. Jones
appeals the sentence. For the reasons discussed below, we affirm the sentence.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
I.    BACKGROUND

       On January 21, 2006, Oglala Sioux Tribe Department of Public Safety police
officers responded to a gang fight on the Pine Ridge Indian Reservation in South
Dakota. The police began to chase a Ford Explorer containing an individual they
sought in connection with the gang fight when Jones, the driver, refused to stop.
Jones eventually pulled into a gas station parking lot and crashed the vehicle into an
occupied stationary police car. Jones and the other occupants of the Explorer exited
and attempted to flee the scene but were apprehended.

       Pursuant to a plea agreement, Jones agreed to plead guilty to intentionally
damaging Oglala Sioux Tribe property in violation of 18 U.S.C. §§ 1152 and 1153
and S.D. Codified Laws § 22-34-1, and the Government agreed to recommend that the
court award Jones a two-level reduction for acceptance of responsibility under United
States Sentencing Guidelines § 3E1.1(a), unless the Presentence Investigation Report
(“PSR”) revealed significant evidence to the contrary. The PSR found that Jones had
an offense level of 12, after a two-level reduction for acceptance of responsibility, and
a criminal history category of IV, resulting in an advisory guidelines sentence range
of 21 to 27 months’ imprisonment.

       While awaiting sentencing, the Government detained Jones at the Pennington
County Jail in Rapid City, South Dakota. During the detention, Jones engaged in
numerous incidents of disruptive behavior, including damaging a window by throwing
a television set at it, swinging a piece of broken glass and a telephone cord in a
threatening manner, flooding his cell on numerous occasions, threatening to harm
himself, throwing a cup of urine at a correction officer and speaking and acting
disrespectfully toward the jail staff. The U.S. Probation Office amended Jones’s PSR
twice based on his behavior, and the final addendum recommended that the district
court deny Jones credit for acceptance of responsibility and consider imposing an
upward variance based upon his misconduct in jail.

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      At sentencing, the district court denied credit for acceptance of responsibility
and found Jones had an offense level of 14 with an advisory guidelines sentence range
of 27 to 33 months’ imprisonment. Jones argued that he had failed to receive any
mental health treatment or medication during his first eight months of incarceration
and that this lack of treatment caused his disruptive behavior. He also argued that his
disruptive behavior ended when he received medication. After hearing Jones’s
arguments, the district court imposed an upward variance from the advisory guidelines
range and sentenced Jones to 50 months’ imprisonment, representing a fifty-two
percent or four-offense level increase from the upper end of the advisory guidelines
range. In sentencing Jones, the district court referred to 18 U.S.C. § 3553(a)(2)(A),
(B) and (C), and expressed concern that the advisory guidelines range would not
provide an adequate and reasonable sentence and found that the upward variance
would promote respect for the law, deter criminal conduct and protect the public from
Jones’s further criminal activity. Jones appeals his sentence, arguing that the upward
variance was unreasonable.

II.   DISCUSSION

       We review a challenge to the reasonableness of a sentence for abuse of
discretion. See United States v. Lee, 454 F.3d 836, 838 (8th Cir. 2006). A district
court abuses its discretion when it fails to consider a relevant factor, gives significant
weight to an irrelevant or improper 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. United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005).

        Jones argues the district court’s upward variance was extraordinary and not
justified by extraordinary circumstances. Jones emphasizes the percentage variation
from the advisory guidelines range, but we have expressed concern with relying solely
on percentages to evaluate a variance. See United States v. Maloney, 466 F.3d 663,

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668 (8th Cir. 2006) (stating that evaluating a variance by considering the difference
in offense levels “seems more in keeping with our assigned role to further the
objectives of the Sentencing Reform Act, because the guideline system established by
the Act was designed to adjust sentences incrementally by offense level, rather than
by percentages”). Further, the term extraordinary “more accurately serves as a
convenient characterization” of departures or variances of more than the two to four
offense level adjustments the Sentencing Commission envisioned. United States v.
Burns, 500 F.3d 756, 762 (8th Cir. 2007) (en banc), petition for cert. filed, ---
U.S.L.W. --- (U.S. Nov. 20, 2007) (No. 07-7805); see also United States v. Saenz, 428
F.3d 1159, 1162 (8th Cir. 2005). While a four-level variance is significant and at the
upper bounds of what the Sentencing Commission envisioned for most adjustments
for aggravating and mitigating circumstances, see Saenz, 428 F.3d at 1162, we cannot
say that it is necessarily extraordinary.

       Jones does not claim that the district court erred in denying him the two-level
decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a), but he argues that
the court erred in using his jail misconduct as a basis both to deny acceptance of
responsibility and to grant an upward variance. Normally, we discourage district
courts from granting significant variances based on facts or factors that have already
been accounted for in the advisory sentencing guidelines. See, e.g., United States v.
Garate, 482 F.3d 1013, 1017 (8th Cir. 2007). However, we previously have allowed
variances based on factors already taken into account by the advisory guidelines,
particularly when a district court applies “broader § 3553(a) considerations” in
granting the variance. See United States v. Solis-Bermudez, 501 F.3d 882, 887 (8th
Cir. 2007).

       Here, the district court appears to have considered essentially the same
underlying facts of Jones’s jailhouse misconduct in both denying the two-level
decrease for acceptance of responsibility and granting the upward variance. Jones’s
jailhouse misconduct not only demonstrated his lack of acceptance of responsibility,

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but, as the district court discussed, it clearly was relevant to other § 3553(a) factors,
such as protecting the public from Jones’s future crimes, deterring criminal conduct
and promoting respect for the law. See 18 U.S.C. § 3553(a)(2)(A), (B) and (C).
While the district court’s use of essentially the same underlying facts both to deny
acceptance of responsibility and to grant a four-level upward variance stretches the
outer bounds of what we find reasonable, we cannot say that the district court abused
its discretion, particularly because the underlying jailhouse misconduct was also
relevant to other § 3553(a) factors.

       We have held that a district court may impose an upward variance based on
facts already included in the advisory sentencing guidelines where the advisory
guidelines do not fully account for those facts. United States v. Rouillard, 474 F.3d
551, 557 (8th Cir. 2007) (upholding an upward variance when the advisory sentencing
guidelines range did not fully account for Rouillard’s criminal conduct and high risk
of recidivism). Here, the denial of the two-level reduction for acceptance of
responsibility did not fully account for the extent of Jones’s jailhouse misconduct,
which included throwing a television set at a window, swinging a piece of broken
glass and a telephone cord in a threatening manner, throwing urine, a broom and a
spray bottle at corrections officers, and flooding his cell on numerous occasions.
Section 3E1.1 allows a denial of acceptance of responsibility for “conduct . . . that is
inconsistent with such acceptance of responsibility,” U.S.S.G. § 3E1.1 cmt. n.3, and
we have previously held that assaulting a corrections officer once while in jail
awaiting sentencing was sufficient to deny a reduction for acceptance of
responsibility, United States v. Arellano, 291 F.3d 1032, 1035 (8th Cir. 2002). Here,
Jones not only assaulted corrections officers numerous times, he also intentionally
damaged property multiple times, the very offense for which is being sentenced. His
conduct exceeded actions that are merely inconsistent with acceptance of
responsibility; thus, a denial of a reduction for acceptance of responsibility failed to
fully account for the complete scope of Jones’s jailhouse misconduct. The district
court determined that a sentence within the advisory guidelines range would not

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adequately impart respect for the law, deter further criminal activity or protect the
public from criminal activity, see Rouillard, 474 F.3d at 557, and we cannot conclude
that, in coming to that determination, the district court gave significant weight to an
improper factor or committed a clear error of judgment, see Haack, 403 F.3d at 1004.
Therefore, given the repeated, serious and dangerous nature of Jones’s jailhouse
misconduct, the district court did not abuse its discretion in imposing this sentence.

       Jones further argues that because the district court failed to determine that his
jail misconduct justified an upward departure from the advisory sentencing guidelines
under U.S.S.G. §§ 4A1.3 or 5K2.0, it could not grant a variance on these grounds.
However, we have rejected this argument before when we held that a district court can
decline to depart from the advisory sentencing guidelines range but still impose a
variance under § 3553(a). Solis-Bermudez, 501 F.3d at 886. Therefore, the district
court did not err in imposing an upward variance simply because it declined to grant
a departure.

       Finally, Jones argues that the district court erred when it failed to consider §
3553(a) factors such as the importance of avoiding unwarranted disparity and the
history and characteristics of the defendant and when it failed to state its reasons for
granting the upward variance with sufficient particularity and include those in the
written order of judgment and commitment. See 18 U.S.C. § 3553(c)(2) (requiring a
sentencing court to state its reasons for departing from the advisory guidelines range
with specificity in a written order of judgment and commitment). Moreover, Jones
claims that in sentencing him, the district court should have considered his failure to
receive mental health treatment, which he claims caused his disruptive behavior.

      Jones’s arguments fail. First, a sentencing court need not “categorically
rehearse each of the section 3553(a) factors on the record when it imposes a sentence
as long as it is clear that they were considered.” United States v. Dieken, 432 F.3d
906, 909 (8th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 163 (2006). The district court

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clearly considered the § 3553(a) factors, citing several specifically in imposing the
upward variance, including the need to provide deterrence to criminal conduct, the
need to promote respect for the law, and the need to protect the public from Jones’s
further criminal activity. If a district court “adverts to some of the considerations
contained in § 3553(a), we have been satisfied ‘that the [sentencing] court . . . was
aware of the entire contents of the relevant statute.’” United States v. Hawkins, 375
F.3d 750, 752 (8th Cir. 2004) (quoting United States v. Adams, 104 F.3d 1028, 1031
(8th Cir. 1997)) (alterations in original). Although the district court did not explicitly
state that it had considered Jones’s attorney’s claims regarding his mental health in
imposing the sentence, it is clear that the district court listened to the arguments,
considered the evidence presented and considered the § 3553(a) factors in imposing
the sentence. See Rita v. United States, 551 U.S. ---, 127 S. Ct. 2456, 2469 (2007)
(holding that the district court gave sufficient reasons for the sentence when it listened
to each argument and considered the supporting evidence and finding that “[w]here
a matter is as conceptually simple as in the case at hand and the record makes clear
that the sentencing judge considered the evidence and arguments” a judge need not
write extensively explaining his reasons for the sentence). Second, even if the district
court failed to state its reasons with sufficient specificity in a written order of
judgment and commitment, we can still affirm if we find the sentence to be
reasonable. See United States v. Little Hawk, 449 F.3d 837, 841 (8th Cir. 2006).
Therefore we need not remand under § 3553(c)(2) because we find Jones’s sentence
to be reasonable.

III.   CONCLUSION

       Accordingly, we affirm the sentence.
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