                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3917
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Morris K. Likens,                        *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: May 16, 2006
                                 Filed: September 22, 2006 (Corrected 10/4/06)
                                  ___________

Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

        Morris K. Likens was convicted on his guilty plea of being a felon in possession
of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and of being a
drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3), and was
sentenced to three years’ probation. The government appeals the sentence, arguing
that it is unreasonable. We vacate the sentence and remand to the district court for
resentencing.
                                          I.

       Likens, a Florida resident, traveled to Davenport, Iowa, to attend a high school
reunion. Police officers stopped him for driving without wearing a seatbelt and
arrested him when they observed marijuana inside his truck. The officers searched the
truck and found a .45 caliber pistol, a loaded magazine, and several rounds of
ammunition. Likens admitted to the officers that he owned the pistol and that he had
transported it from Florida to Iowa. He also admitted that he had smoked marijuana
while the pistol was in his possession.

       Likens had previously been convicted of several drug offenses. In 1991 and
1993, he was convicted for purchasing crack cocaine from a police officer. He was
fined and served probation sentences for both convictions. In 2000, police officers
found crack in Likens’s car, and he was fined and sentenced to five months in jail.
Each of these convictions was for a felony offense.

       Following the district court’s denial of his motion to suppress, Likens pleaded
guilty to the charges against him. The presentence report (PSR) determined Likens’s
base offense level to be 14 and his criminal history score to be II. It recommended a
two-level enhancement for obstruction of justice because of Likens’s false testimony
at the suppression hearing. The district court found that Likens had testified falsely
and assessed the enhancement. The district court awarded a three-level reduction for
acceptance of responsibility, resulting in a guideline range of fifteen to twenty-one
months’ imprisonment.

       At the sentencing hearing, the district court discussed a number of sentencing
factors. Discussing the nature and circumstances of the offense, the district court
noted that “no violence was involved in the offense conduct.” Sent. Tr. at 16. In
examining the history and characteristics of the defendant, the district court observed
that Likens had been married for thirty-one years, had a supportive family, and was

                                         -2-
suffering from diabetes, heart disease, and addictions to alcohol and drugs. In
examining the need for the sentence imposed, the district court opined that “[t]he
interests of protecting the public, providing just punishment for the offense, lowering
the risk of recidivism and affording adequate deterrence” would all be met with a
sentence of probation. Id. at 18. The court continued:

      The Defendant does not pose a threat of violence to society nor to those
      nearest to him. . . . The real intent of the statute prohibiting felons from
      being in possession of firearms is only to protect society.

      The conduct in this case was entirely linked to [Likens’s] substance
      abuse and mental health problems. Indeed, sending a person with
      congestive heart failure, a close family support system, and in his fifties
      would promote not respect, but likely derision for the law.

Id.

      The district court then sentenced Likens to three years’ probation, conditioned
upon his participation in a substance abuse treatment and testing program.

                                           II.

       When there is no dispute on appeal about the applicable guideline range, we
examine whether the sentence imposed is “reasonable” in light of the factors
articulated in 18 U.S.C. § 3553(a). United States v. Haack, 403 F.3d 997, 1003 (8th
Cir. 2005). We review the district court’s decision for abuse of discretion. United
States v. Dalton, 404 F.3d 1029, 1032 (8th Cir. 2005). 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 commits a clear error of judgment by arriving at a sentence
outside the limited range of choice dictated by the facts of the case. Haack, 403 F.3d
at 1004.

                                          -3-
       The guideline range, though advisory, is presumed to be reasonable. United
States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005). Sentences deviating from the
guideline range can be reasonable so long as the judge offers appropriate justification
under the factors specified in § 3553(a). United States v. Claiborne, 439 F.3d 479,
481 (8th Cir. 2006). The further the district court varies from the presumptively
reasonable guideline range, the more compelling the justification based on those
factors must be. United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006). An
extraordinary reduction must be supported by extraordinary circumstances. Dalton,
404 F.3d at 1033.

       The probationary sentence imposed in this case represents a one-hundred
percent downward variance from the bottom of the applicable advisory guideline
range. United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006). Our review of the
record and the district court’s analysis of the § 3553(a) factors does not reveal the
existence of the type of extraordinary circumstances necessary to justify such a
reduction. Instead, it appears that the district court failed to consider important
factors, gave inappropriate weight to irrelevant factors, and committed clear errors of
judgment with respect to some relevant factors.

       First, it appears that the district court failed to consider the need to avoid
unwarranted sentencing disparities. “The sentencing guidelines are indeed no longer
mandatory, but they continue to be guideposts that must be respected, lest we see a
return to the unwarranted sentencing disparities that resulted in the adoption of the
guidelines themselves.” United States v. Bryant, 446 F.3d 1317, 1320 (8th Cir. 2006).
The record does not reflect any consideration by the district court of this important
factor.

       The district court also gave inappropriate weight to irrelevant or insignificant
factors. The district court appeared to place inordinate weight on Likens’s age and
substance abuse problems. Age and drug addiction or abuse are not ordinarily

                                         -4-
extraordinary circumstances. United States v. Lee, 454 F.3d 836, 839 (8th Cir. 2006).
While these and other factors cited by the district court might justify some variance
from the guideline range, they are not sufficient to justify a sentence of probation in
this case.

        Finally, the district court erred in its consideration of other relevant factors in
that it unduly minimized the seriousness of Likens’s conduct. The structure of the
Gun Control Act of 1968, which criminalized the conduct committed here, seeks to
curb crime and protect the public by keeping firearms out of the hands of those
Congress considers to be potentially irresponsible and dangerous. See Dickerson v.
New Banner Inst., Inc., 460 U.S. 103, 118-19 (1983); Barrett v. United States, 423
U.S. 212, 218 (1976). Congress has clearly expressed its view regarding the
seriousness of the offenses described in 18 U.S.C. §§ 922(g)(1) and (g)(3), and it is
not the judiciary’s prerogative to require that the government establish that those who
commit such offenses possess violent tendencies.

       The district court also incorrectly minimized the effect a prison sentence has in
achieving the goals of deterrence and promoting respect for the law. By minimizing
the seriousness of the offense to justify a sentence of probation, the district court did
not properly consider the need for the sentence imposed to serve as an adequate
deterrent against other similar conduct. What we said in an earlier case applies with
equal force here: “The goal of deterrence rings hollow if a prison sentence is not
imposed in this case.” United States v. Ture, 450 F.3d 352, 358 (8th Cir. 2006).
Similarly, granting such a substantial variance does not promote respect for the law.
See id. at 357-58. Likens did not commit a technical or accidental violation of the
statute, nor, assuming without deciding that such a defense might be available in a
proper case, was his possession innocent or transitory. Cf. United States v. Mason,
233 F.3d 619, 622-25 (D.C. Cir. 2000); United States v. Ali, 63 F.3d 710, 716 n.7 (8th
Cir. 1995). He transported the firearm and ammunition from Florida to Iowa, and he



                                           -5-
illegally used marijuana while he was in possession of the firearm.                 Once
apprehended, he testified falsely under oath.

      The sentence is vacated, and the case is remanded to the district court for
resentencing in accordance with the views set forth in this opinion.

BRIGHT, Circuit Judge, dissenting.

      The majority’s determination that the district judge erred when sentencing Mr.
Likens to probation serves as yet another example of the upside down world of
sentencing in the federal courts.

      In this present case, the district judge determined that probation is right and just
given all the circumstances. That was his reasoned judgment based on his significant
experience and consideration.1 To reverse this exercise of discretion in such a close
case seems wrong.

       There is nothing abusive about the exercise of reason simply because it is also
an exercise of compassion. The majority’s opinion reads as if sentencing Mr. Likens
to probation essentially would leave him unpunished. This is hardly the case; three
years’ probation would still serve to significantly curtail Mr. Likens’s mobility,
activities, drug-use, and personal freedom while sparing the citizens of this country
the expense of incarcerating a person in poor health who is no danger to society.



      1
       In his tenure as a federal district judge, Judge Pratt has sentenced
approximately nine hundred ninety offenders. We have reviewed only a minuscule
number of those cases. Judge Pratt has had the experience to decide the fate of more
than nine hundred real people, all of whom he has looked in the eye when imposing
a sentence. (Information regarding the number of sentences Judge Pratt has imposed
was obtained from his chambers.)

                                           -6-
Incarceration is not the only, and indeed not even always the best, means of punishing
or deterring crime.

       From the cold record before me, I can’t say whether Mr. Likens deserves
incarceration or not. Again, it is a close call – but not ours to make. The sentencing
judge exercised his reasoned discretion and, without more, this court should not
disturb it. Discretion in sentencing belongs to the district court. Unfortunately, it is
a prerogative that this court will not recognize in many, perhaps too many, cases. See
United States v. McDonald, 2006 WL 2528580, *9-10 (8th Cir. 2006) (Bye, J.,
dissenting). Thus, I dissent.
                         ______________________________




                                          -7-
