                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3316
                                   ___________

United States of America,               *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
LeAnne Soperla, also                    *
known as LeAnne Wheeler,                *
                                        *
            Appellee.                   *
                                   ___________

                             Submitted: June 13, 2007
                                Filed: July 27, 2007 (Corrected 10/19/07)
                                 ___________

Before LOKEN, Chief Judge, and ARNOLD and COLLOTON, Circuit Judges.
                               ___________

ARNOLD, Circuit Judge.

      Pursuant to a written plea agreement, LeAnne Soperla pleaded guilty to being
an unlawful drug user in possession of a firearm, see 18 U.S.C. §§ 922(g)(3),
924(a)(2), to maintaining a residence for the purpose of distributing
methamphetamine, see 21 U.S.C. § 856(a)(1), (b), and to a criminal forfeiture count,
see 21 U.S.C. § 853. In exchange for her guilty pleas, the government agreed to
dismiss a count charging Ms. Soperla with conspiracy to distribute methamphetamine,
see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. The district court sentenced her to four
years of probation, and the government appeals, arguing that the sentence is
unreasonable. We vacate Ms. Soperla's sentence and remand for resentencing.
                                           I.
        Ms. Soperla owned a residence in Cameron, Missouri, in which she lived with
her two sons and her ex-husband. In response to numerous complaints about the
involvement of Ms. Soperla's sons in drug dealing, the Cameron Police Department
initiated an investigation. During the investigation, an undercover agent made several
purchases of methamphetamine, marijuana, and firearms from Ms. Soperla's sons at
the family's residence. These purchases included 50.85 grams of methamphetamine
and 256.29 grams of marijuana.

      A search warrant was then obtained and a search conducted of the residence.
The search revealed a small amount of methamphetamine and marijuana in the house.
During the search, Ms. Soperla informed the police of a revolver that she kept
unloaded and locked in a chest in her bedroom and that she reportedly had never fired.

        In her police interview after the search, Ms. Soperla (who was in her mid-forties
at the time) admitted that she had used marijuana since the age of twenty-four, that she
had also used methamphetamine but that marijuana was her drug of choice, and that
she had smoked marijuana every night since she was in her thirties. Ms. Soperla also
acknowledged that she would periodically walk through the house and discard any
drugs or paraphernalia that she found in plain view, but that she would keep and
smoke any marijuana that she found. The presentence investigation report also said
that Ms. Soperla was in the residence during some of the undercover drug purchases
and that she had knowledge of the drug trafficking transactions, a statement to which
Ms. Soperla did not object.

      At the sentencing hearing, the district court calculated an advisory sentencing
guidelines range for Ms. Soperla of 33 to 41 months, based on an adjusted offense
level of 20 and a criminal history category of I. The court heard testimony on
Ms. Soperla's behalf from her pastor, her sister, a former colleague, and her ex-
husband. The district court then sentenced Ms. Soperla to four years of probation on

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the firearm possession and the maintaining-a-residence counts to run concurrently.
The sentence included a requirement that Ms. Soperla spend four months in a halfway
house and three months in home confinement.

                                             II.
       The government argues that Ms. Soperla's sentence is unreasonable. We review
a "district court's decision to vary from the advisory sentencing Guidelines range ...
for reasonableness, which is a similar standard to the abuse of discretion standard."
United States v. Pepper, 486 F.3d 408, 411 (8th Cir. 2007). A sentence that varies
from the advisory guidelines range is reasonable "so long as the judge offers
appropriate justifications under the factors in [18 U.S.C.] § 3553(a)." United States
v. Gonzalez-Alvarado, 477 F.3d 648, 650 (8th Cir. 2007). But a "sentencing court
abuses its discretion if it fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
considers only the appropriate factors but commits a clear error of judgment in
weighing those factors." United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir.
2005). "The further the district court varies from the presumptively reasonable
guideline range, the more compelling the justification based on the § 3553(a) factors
must be." United States v. Bryant, 446 F.3d 1317, 1319 (8th Cir. 2006). We hold that
the district court committed a clear error of judgment by sentencing Ms. Soperla to
probation.

       In sentencing Ms. Soperla, the district court invoked the requirement in
§ 3553(a) that the court impose a sentence "sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this subsection"; those
purposes are "the need for the sentence imposed ... to reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment" and general and
specific deterrence, and to provide the defendant with needed correctional treatment.
18 U.S.C. § 3553(a)(2). Section 3553(a) also directs the sentencing court to consider



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the nature and circumstances of the offense and the history and characteristics of the
defendant, and to avoid unwarranted sentencing disparities. Id.

       The district court addressed the purposes set out in § 3553(a)(2) by first stating
that Ms. Soperla's offense was "very serious" but that her role as compared to that of
others involved was minimal. In considering its obligation to promote respect for the
law, the court concluded that although Ms. Soperla's conduct could not be excused
based on her mental illness and drug addiction, just punishment would be provided
without sentencing her to 33 months in prison. Specifically, the court found that
Ms. Soperla had lost her job and her house because of her criminal conduct, that she
will always be a convicted felon and will not be allowed to vote again, that her
freedom would be restricted for the seven months that she was sentenced to serve in
a halfway house and home confinement and also during the entire term of her
probation (during which time she would be required to undergo frequent drug testing
with the threat of returning to jail), and that she had been publicly shamed in her
community. The district court opined that requiring Ms. Soperla also to spend
33 months in prison would not further deter her or others from criminal conduct.

       With respect to protecting the public from further crimes of Ms. Soperla, the
district court found that Ms. Soperla's criminal conduct was primarily a result of
mental illness and drug addiction, which would benefit from the treatment and training
available to her on probation. It further noted that Ms. Soperla's criminal conduct was
primarily related to the conduct of her family members, and that she would be unlikely
to re-offend given that both of her sons would be incarcerated for fifteen years.

       In its consideration of the nature and circumstances of the offense, the district
court again stated that Ms. Soperla's role was minimal, and it found that her conduct
was a "far cry" from that of other defendants who could be convicted of maintaining
a residence for purposes of drug distribution. The court placed significant weight on
the fact that Ms. Soperla would have had to eject her family members from the home

                                          -4-
in order to avoid criminal culpability, opining that "there is a vast difference between
inviting people into your home for profit to use methamphetamine and failing to eject
family members." The district court expressed its doubt that Ms. Soperla's conviction
for being a drug user in possession of a firearm justified a prison sentence in the
present case, since Ms. Soperla had not seen the gun for twenty years and she never
used it, it was not associated with the underlying criminal activity, it was locked away,
and it was recovered during the police search of her home only because Ms. Soperla
voluntarily revealed its presence.

       The district court also pointed to Ms. Soperla's history and characteristics as
favoring a sentence of probation. It noted that Ms. Soperla's conduct was primarily
a result of drug addiction and mental illness, and that she had a college education and
had held a stable job for eighteen years.

       Finally, the district court considered the need to avoid unwarranted sentencing
disparities. The district court noted its belief that, with respect to the maintaining-a-
residence charge, the statute covers a wide range of conduct, and that not everyone
convicted of this offense deserved the same punishment, even though defendants in
Ms. Soperla's circumstances should receive a sentence similar to hers. The district
court reiterated its belief that, as compared with others who could be convicted under
the same statutes, Ms. Soperla's conduct was relatively less culpable.

       The government argues that Ms. Soperla's sentence of probation was
unreasonable because it was not supported by extraordinary circumstances, because
the district court minimized the seriousness of her offenses, and because the district
court improperly based its variance from the advisory guidelines range on
considerations already taken into account by the guidelines.

       We begin our review of this sentence with the observation that the district
court's sentence represents a twelve-level reduction under the guidelines and

                                          -5-
essentially a one hundred percent downward variance from the low end of the
advisory guidelines range since it allowed Ms. Soperla to avoid prison time
completely. "We have suggested that a variance to zero prison time where the
Sentencing Commission has found that substantial prison time is indicated ... requires
extraordinary justification." United States v. McDonald, 461 F.3d 948, 957 n.7 (8th
Cir. 2006) (citing United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006), cert.
granted, No.06-7949, 2007 WL 1660978 (U.S. June 11, 2007)), petition for cert. filed,
No. 06-8086 (U.S. Nov. 28, 2006).

      We have routinely rejected this kind of variance as unreasonable. See, e.g.,
United States v. Likens, 464 F.3d 823, 825-26 (8th Cir. 2006) (reversing sentence of
probation where advisory guidelines range was 15 to 21 months' imprisonment);
United States v. Robinson, 454 F.3d 839, 841 (8th Cir. 2006) (reversing sentence of
probation where advisory guidelines range was 63 to 78 months' imprisonment);
United States v. Medearis, 451 F.3d 918, 919-20 (8th Cir. 2006) (reversing sentence
of probation where advisory guidelines range was 46 to 57 months' imprisonment);
Gall, 446 F.3d at 886, 889-90 (reversing sentence of probation where advisory
guidelines range was 30 to 37 months' imprisonment); United States v. Givens,
443 F.3d 642, 643 (8th Cir. 2006) (reversing sentence of "time served" followed by
"supervised release" where defendant had, in fact, served no time, and advisory
guidelines range was 24 to 30 months' imprisonment); United States v. Rogers,
400 F.3d 640, 641-42 (8th Cir. 2005) (reversing sentence of probation where advisory
guidelines range was 51 to 63 months' imprisonment), cert. denied, 126 S. Ct. 1020
(2006); cf. United States v. Wadena, 470 F.3d 735, 737-40 (8th Cir. 2006) (upholding
sentence of probation for fraud conviction where advisory guidelines range was 18 to
24 months' imprisonment, and sixty-seven-year-old defendant required frequent
kidney dialysis and was sole caregiver for his child, who had fetal alcohol syndrome).

       As a federal statute, the sentencing guidelines, and our cases show, probation
is not merely a reduced sentence, but a different type of sentence altogether. See

                                         -6-
18 U.S.C. § 3561; U.S.S.G. § 5B1 (intro. comment.). "The Comprehensive Crime
Control Act of 1984 makes probation a sentence in and of itself. 18 U.S.C. § 3561.
Probation may be used as an alternative to incarceration, provided that the terms and
conditions of probation can be fashioned so as to meet fully the statutory purposes of
sentencing." U.S.S.G. § 5B1 (intro. comment.).

      Under the guidelines, moreover, a sentence of probation is available only where
the applicable guidelines range is in Zone A or B of the sentencing table, and it is
available where the applicable range is in Zone B only if alternative conditions of
confinement are also imposed. U.S.S.G. § 5B1.1. The range of sentences available
in Zones A and B are zero to twelve months' imprisonment. See U.S.S.G. Sentencing
Table. Ms. Soperla's applicable guidelines range falls within Zone D, fully ten levels
above the highest level under which she could have received probation before the
guidelines were rendered advisory in United States v. Booker, 543 U.S. 220 (2005).

        Although the sentencing court is no longer bound by the sentencing guidelines,
it must still consider them during sentencing. Booker, 543 U.S. at 259-60. Our cases
considering post-Booker downward variances to probation, as we noted above,
indicate just how extraordinary a defendant's circumstances must be to warrant a
sentence that does not include prison time where the advisory guidelines range calls
for it. We find no such extraordinary circumstances here.

       For one thing, though the district court is perhaps correct that Ms. Soperla's
conduct was not very serious when one considers the kinds of activities that could
constitute violations of the relevant statutes, it remains true that her conduct was
criminal under those statutes. And, as the government points out, the guidelines
already accounted for an aspect of the drug crime that led the district court to impose
probation in this case: When Ms. Soperla's advisory guidelines sentencing range was
calculated, she received a four-level reduction under U.S.S.G. § 2D1.8(a)(2) because
she was not a participant in the underlying drug offenses, but merely allowed her

                                         -7-
house to be used for drug trafficking. Because these circumstances significantly
decreased Ms. Soperla's guidelines sentence, we believe that the district court gave too
much weight to her having had only a "minimal" role in the crime when sentencing
her to probation. See United States v. Plaza, 471 F.3d 876, 879 (8th Cir. 2006). We
also note that the district court could have, but did not, consider the fact that Ms.
Soperla received a substantial benefit when the government agreed to drop the
conspiracy charge against her, a charge that carried a mandatory minimum sentence
of ten years. See United States v. Jimenez-Gutierrez, No. 06-1566, 2007 WL
1855644, at *4 (8th Cir. June 29, 2007).

       The district court also downplayed the seriousness of Ms. Soperla's offense by
positing that the only way that Ms. Soperla could avoid criminal culpability was to
"eject" her sons and ex-husband from the home. But this was not the only option
available to her. She could have asked them to stop their criminal activities. She
could have threatened to call the police if they did not stop, and indeed she could have
actually called the police if they continued their activities. There was some evidence,
moreover, that Ms. Soperla had forced her family members to leave the home before,
in which case she had every reason to believe that she could ask them to leave again.

       We believe that the district court's imposition of a sentence of probation in this
case also fails to give appropriate weight to other statutory sentencing goals, namely,
the need to promote respect for the law, the need to deter others from committing
similar crimes, and the statutory goal of avoiding unwarranted sentencing disparities.

       The last consideration is of particular concern here. We have already held at
least three times that a downward variance to probation is unreasonable where the
defendant pleaded guilty to possession of a firearm in violation of 18 U.S.C. § 922(g).
See Likens, 464 F.3d at 825-26; Medearis, 451 F.3d at 919, 921; United States v.
Robinson, 454 F.3d 839, 843 (8th Cir. 2006). In Likens, where the defendant was
convicted of being a drug user and a felon in possession of a firearm, we specifically

                                          -8-
noted that Congress "has clearly expressed its view regarding the seriousness of
[these] offenses." Even if these cases are not binding in the present circumstances due
to factual distinctions, they tend to indicate that sentences of probation are generally
disfavored for crimes as serious as Ms. Soperla's.

      Although it may be that a sentence of less than 33 months' imprisonment is
warranted based on Ms. Soperla's unique circumstances, we believe that a sentence
of probation is unreasonable in this case. Accordingly, we vacate the sentence
imposed by the district court and remand for resentencing.
                       ______________________________




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