MELLOY, Circuit Judge.
Vincent Sharnee Johnson pleaded guilty to armed bank robbery and brandishing a firearm during a crime of violence. The district court
On July 21, 2006, Johnson entered a Little Rock, Arkansas bank wearing a wig, hat, and sunglasses. Upon entering the bank, Johnson reached into a bag he was carrying, pulled out a firearm, and ordered everyone in the bank to the ground. After warning that he had a grenade in his bag, Johnson approached the bank tellers' stations, removed cash from multiple money drawers, and then fled the bank. Officers later arrested Johnson at a Little Rock residence where they found over $10,000 in cash, a smoke bomb, handcuffs, a bag, a wig, hats, sunglasses, and a firearm.
On September 5, 2006, a grand jury indicted Johnson for armed robbery ("Count 1"), in violation of 18 U.S.C. § 2113(a) and (d), brandishing a firearm during a crime of violence ("Count 2"), in violation of 18 U.S.C. § 924(c), and being a felon in possession of a firearm ("Count 3"), in violation of 18 U.S.C. § 922(g)(1). On September 25, 2008, Johnson agreed to
The district court sentenced Johnson on August 25, 2009. The court found that the base offense level for Count 1 was twenty. The court enhanced this offense level by five because Johnson took property from a financial institution, took more than $10,000, and physically restrained employees and customers while committing the robbery. The court reduced the offense level by two based on Johnson's acceptance of responsibility. Thus, the total offense level for Count 1 was twenty-three.
Johnson's presentence investigation report ("PSR") indicated that he had been convicted of serious criminal offenses on two prior occasions. In 1980, Johnson was convicted of one count of bank robbery and one count of bank robbery by "putting life in jeopardy by use of a dangerous weapon." Johnson was sentenced to twelve years' imprisonment on these offenses and was initially paroled in 1984. In 1985, however, Johnson was convicted of one count of robbery and one count of robbery of a carrier. Johnson was sentenced to over eight years' imprisonment on these offenses. Johnson's last parole date on the sentence for his 1980 convictions was February 19, 1992, and his last parole date on the sentence for his 1985 convictions was December 14, 1990.
The district court assigned Johnson three criminal-history points for the sentence that he served on his 1980 convictions. However, since Johnson's last parole date on the sentence that he served for his 1985 convictions was more than fifteen years prior to committing the offenses at issue in this case, the court did not assign Johnson any criminal-history points for that conviction. See U.S.S.G. § 4A1.2(e)(1). Johnson's three criminal-history points resulted in a criminal-history category II.
With a criminal-history category II and a total offense level of twenty-three, the court initially determined that Johnson's advisory guideline sentencing range on Count 1 was 51-63 months. The court found, however, that Johnson's criminal-history category under-represented his criminal history. Accordingly, stating that it was "departing upward," the court imposed a sentence of 188 months' imprisonment on Count 1. Pursuant to statutory mandate, the court also imposed 84 months' imprisonment on Count 2 to be served consecutively with Johnson's sentence on Count 1. See 18 U.S.C. § 924(c). Johnson's total sentence of imprisonment, therefore, was 272 months.
Johnson argues that the district court erred in imposing an upward departure for his sentence on Count 1.
Johnson first argues that the district court erred in determining that his criminal-history
Our court has rejected Johnson's argument. We have noted that when considering whether a defendant's criminal-history category under-represents a defendant's criminal history, "the court may consider prior sentences `not used in computing the criminal history category.'" Shillingstad, 632 F.3d at 1037 (quoting § 4A1.3(a)(2)(A)). Additionally, the guidelines specifically provide that if a defendant's prior sentence is too remote to merit criminal-history points pursuant to § 4A1.2(e), the court may consider this sentence "in determining whether an upward departure is warranted under § 4A1.3" if the sentence is "evidence of similar, or serious dissimilar, criminal conduct." § 4A1.2(e) cmt. n. 8; see United States v. Harlan, 368 F.3d 870, 875 (8th Cir.2004); United States v. Agee, 333 F.3d 864, 867 (8th Cir.2003). In this case, since Johnson's 1985 convictions involved robbery, which is similar to the offense that Johnson committed in this case, the district court had a proper basis for concluding that Johnson's criminal-history category under-represented his criminal history for purposes of § 4A1.3.
Next, Johnson argues that even if the district court had a proper basis for determining that his criminal-history category under-represented his criminal history, the district court failed to adequately explain its reasons for imposing an upward departure.
Although the district court's explanation was not extensive, we find it adequately explained the district court's rationale for the sentence imposed. At sentencing, the court stated:
The sentencing-hearing transcript suggests that the court compared Johnson's criminal history with that of an offender who had a criminal history identical to Johnson's but who had been released from the sentence on his 1985 convictions on or after July 21, 1991.
Johnson finally contends that the extent of the district court's upward departure is unreasonable. We disagree. In imposing the 125-month upward departure, the court permissibly noted that Johnson's criminal history was comparable to a career offender's, who would have had a guideline range of 210-262 months. United States v. Adams, 401 F.3d 886, 896-97 (8th Cir.2005) (noting that a district court may permissibly consider "the career offender range as an indicator of a reasonable sentence" (internal quotation marks omitted)); see also United States v. Myers,
Moreover, the district court imposed a sentence of 188 months' imprisonment after considering factors besides the career-offender guideline range. The court noted that Johnson was "not a young man anymore" and that his two prior convictions—like the present one—involved robbery. These facts indicated that Johnson's recidivism warranted a longer sentence. See Shillingstad, 632 F.3d at 1037 (noting that "repeated offenses of a similar nature indicate a heightened need for deterrence" (internal quotation marks omitted)); United States v. Gonzalez, 573 F.3d 600, 606 (8th Cir.2009) ("A defendant's recidivism is a reasonable basis for applying an upward departure."). On the other hand, the court noted that Johnson had physical- and mental-health problems and had spent a significant amount of time in pre-trial detention. Thus, the court considered multiple factors that warranted a lengthier sentence and multiple factors that warranted a shorter sentence. On the whole, we believe these factors justified the court's selection of a 188-month sentence on Count 1. Consequently, the court did not abuse its discretion by imposing an upward departure of 125 months.
For the foregoing reasons, we affirm the sentence imposed by the district court.