United States v. Clifford Grayson, Jr.

PER CURIAM. In this direct criminal appeal of his 41-month prison sentence for being a felon in possession of a firearm, Clifford Lee Gray-son, Jr. (Grayson) argues (1) the district court 1 incorrectly calculated the Guidelines range by assessing criminal history points for Grayson’s August 2005 conviction for failing to surrender; (2) the case should be remanded for resentencing because the court conflated its departure analysis with its variance analysis; and (3) the presumption of reasonableness this court affords to a within-Guidelines-range sentence is improper. We do not need to reach the first issue raised by Grayson, because even excluding the three criminal-history points assessed for Grayson’s failure-to-surrender conviction, Grayson had 13 other erimin’al-history points, all properly assessed. Thus, Gray-son still has a Category VI criminal history and the same Guidelines sentencing range. 2 We further conclude any error the court may have committed in conducting its departure and variance analysis is harmless because Grayson’s within-Guidelines-range sentence is presumptively reasonable, see United States v. Miller, 479 F.3d 984, 986-88 (8th Cir.2007) (holding that a district court’s conflation of departure and variance analyses was error, but finding it harmless error because the sentence was not unreasonable), cert. denied, — U.S. -, 128 S.Ct. 869, 169 L.Ed.2d 736 (2008); United States v. Denton, 434 F.3d 1104, 1113 (8th Cir.2006) (stating a within-Guidelines-range sentence is presumptively reasonable), and there is no indication the court overlooked a relevant factor, gave significant weight to an improper or irrelevant factor, or misapplied the factors, see United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir.2005). Finally, Grayson’s last argument is without merit because the Supreme Court has approved the appellate presumption of reasonableness this court affords to within-Guidelines-range sentences. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007) (al *913 lowing appellate presumption of reasonableness). We affirm. Footnotes [1] The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. [2] Grayson was sentenced under the 2006 version of the Guidelines Manual. We express no opinion as to what effect, if any, the amendments to U.S.S.G. § 4A1.2, effective November 1, 2007, would have upon the analysis of this issue.