United States v. Meyer

¶4HEANEY, Circuit Judge,

¶5with whom SMITH and GRUENDER, Circuit Judges, join, with the exception of footnote 3.

¶6Mathew Meyer pled guilty to one count of using a minor to produce a sexually explicit videotape, in violation of 18 U.S.C. § 2251(a). The district court1 sentenced Meyer to 270 months of imprisonment followed by a lifetime of supervised release. Meyer’s guidelines sentence was 180 months.2 He appeals his sentence, and we *1000affirm.

¶7Meyer first argues that the district court erred by imposing a sentence outside his guidelines range without adequate notice. In advancing this claim, Meyer relies on Federal Rule of Criminal Procedure 32(h). That rule requires the court to provide the parties with reasonable notice that it is contemplating a departure from the defendant’s guidelines range. Fed.R.Crim.P. 32(h). It does not, however, apply to sentences that are imposed outside of the guidelines range based on the factors enunciated in 18 U.S.C. § 3553(a). United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir.2005). Moreover, our review of the record indicates that the notice Meyer received satisfied due process: he was aware of the minimum and maximum penalties for his offense; was apprized of the guidelines range suggested by the presentence report; understood that the district court might not accept the guidelines calculations of the government, probation office, or himself; and acknowledged the district court was not bound to impose a sentence within his guidelines range. Accord United States v. Egenberger, 424 F.3d 803, 805-06 (8th Cir.2005).

¶8Meyer next argues that his sentence is unreasonable. We review the district court’s sentence for reasonableness, which is “akin to ... abuse of discretion review.” United States v. Rogers, 423 F.3d 823, 829 (8th Cir.2005) (quoting United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir.2005)). A district court imposes an unreasonable sentence when it relies significantly on impermissible factors, fails to account for permissible factors, or otherwise commits a clear error of judgment. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005).

¶9Our circuit presumes a sentence within the advisory guidelines range is reasonable. United States v. Lazenby, 439 F.3d 928, 932 (8th Cir.2006); United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.2006). A sentence that varies from the guidelines may be reasonable, so long as the sentencing court offers justification for the variance that is proportionately compelling to the extent of the variance. Claiborne, 439 F.3d at 481. Thus, when a variance represents an extraordinary departure from the guidelines range, whether higher or lower, it must be accompanied by extraordinary reasons.3United States v. Gall, 446 F.3d 884, 889 (8th Cir.2006).

¶10*1001Meyer’s sentence represented a fifty percent increase from his guidelines range. This is an extraordinary variance from the presumptive sentencing range. See United States v. Bryant, 446 F.3d 1317, 1319-20 (8th Cir.2006) (characterizing a fifty-seven percent variance as extraordinary); United States v. Larrabee, 436 F.3d 890, 892-93 (8th Cir.2006) (fifty-four percent variance is extraordinary); see also United States v. Kendall, 446 F.3d 782, 785 (8th Cir.2006) (citing with approval United States v. Enriquez, 205 F.3d 345, 348 (8th Cir.2000), which considered a fifty percent departure to be extraordinary). Thus, the sentence may only stand if accompanied by extraordinary circumstances.

¶11Recent amendments to the sentencing guidelines convince us that the district court was within its discretion to impose the 270-month sentence Meyer received. The district court applied the 2003 version of the guidelines to calculate his offense level. As noted, this resulted in a guidelines range of 121 to 151 months, modified by his statutory minimum sentence of 180 months. Had the 2004 version of the guidelines been used instead of the 2003 guidelines, Meyer would have faced a mandatory 360-month sentence.4 While our court cannot retrospectively apply enhanc*1002ing amendments to the guidelines in order to calculate the defendant’s guidelines range, such amendments are instructive as to whether a sentence outside of the guidelines falls within the range of reasonableness. See Lairabee, 436 F.3d at 893-94 (affirming a fifty-four percent upward variance in part because recent amendments to the guidelines would have put the sentence in the amended guidelines range). We cannot say that a 270-month sentence is unreasonable because the offense conduct occurred in 2003, where that same sentence would have represented a significant downward variance just a year later. Thus, while certainly not obligated to impose a sentence outside the guidelines range, the district court was within its discretion to do so.

¶12For the reasons stated above, we affirm the district court’s imposition of a 270-month sentence in this case.