United States v. Jones, 2011 U.S. App. LEXIS 7414

Jones pleaded guilty to distributing heroin within 1,000 feet of a school; district court sentenced him to 235 months.
Plea agreement: Government agreed to file a single sentencing-enhancement for one prior drug conviction, avoiding mandatory life under 21 U.S.C. § 841(b)(1)(A).
The parties anticipated he might not be a Career Offender due to age of convictions, and the plea provided for an upward departure for under-represented criminal history to offense level 31, CHC VI, yielding a range of 188–235 months.
Goverment later moved for the agreed upward departure; district court granted it, producing a range of 188–235 months.
Jones argued for a bottom-of-range sentence; he appeals the substantive reasonableness of the sentence, raising disparity concerns and challenging the handling of his criminal history.
The court reviews the sentence for procedural error first, then reasonableness, under Gall and related circuit precedent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence is substantively reasonable	Jones argues the court overemphasized his history and created unwarranted disparity.	Jones contends the sentence exceeds what is necessary under 18 U.S.C. § 3553(a).	Sentence affirmed; presumption of reasonableness applied within the upward-departure range.
Does the Plea Agreement foreclose challenge to the sentence?	Jones claims the agreement did not fix a specific sentence, only ranges and levels.	The agreement expressly acknowledges a range and that any sentence within it would be reasonable.	Foreclosed; Mickelson control forecloses challenge to a plea-bargained range.
Is there a presumption of reasonableness for a Guidelines-range sentence after an upward departure?	Disagrees because departure for under-represented history yields a non-Guidelines sentence.	Post-departure range remains the advisory range; presumption applies.	Presumption applies; sentence within the range is presumptively reasonable.
Should disparity with similar cases affect reasonableness?	Disparities with two similar cases undermine reasonableness.	Some disparities are inevitable; does not render sentence unreasonable.	Not controlling; some disparity allowed; no reversal for disparity shown.

United States v. Mickelson, 433 F.3d 1050 (8th Cir. 2006) (plea did not fix a specific sentence but a range; cannot challenge within-range sentence)
Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (procedural and substantive review of sentences; abuse of discretion standard)
United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (en banc; substantive review heightened for reasonableness)
United States v. O'Connor, 567 F.3d 395 (8th Cir. 2009) (two-step review: procedural then substantive; cites Gall framework)
United States v. Sitting Bear, 436 F.3d 929 (8th Cir. 2006) (upward departure range remains the advisory guidelines range)
United States v. Solis-Bermudez, 501 F.3d 882 (8th Cir. 2007) (presumption of reasonableness for within-range sentences after departure)
United States v. Wong, 127 F.3d 725 (8th Cir. 1997) (some disparity between cases is inevitable; not grounds for reversal)
United States v. Myers, 503 F.3d 676 (8th Cir. 2007) (acknowledges limited need to explain every disparity; upholding variance within reason)
United States v. Williams, 605 F.3d 556 (8th Cir. 2010) (upheld reasonableness of sentence despite disparity concerns)
United States v. Austad, 519 F.3d 431 (8th Cir. 2008) (discussion of factors for 3553(a) review and sentencing discretion)
United States v. Brown, 627 F.3d 1068 (8th Cir. 2010) (presumption of reasonableness for within-range sentences)