                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2939
                                    ___________

United States of America,               *
                                        *
            Appellee,                   * Appeal from the United States
                                        * District Court for the
      v.                                * District of South Dakota.
                                        *
Orville Red Feather,                    *
                                        *
            Appellant.                  *
                                    ___________

                              Submitted: January 8, 2007
                                  Filed: March 13, 2007
                                  ___________

Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG,1 Judge.
                         ___________

GOLDBERG, Judge.

     Appellant Orville Red Feather (“Red Feather”) appeals from his sentence of
30 months of imprisonment. For the reasons that follow, we affirm.

                                              I.

      In July 1994, Red Feather pleaded guilty to aggravated sexual abuse in violation
of 18 U.S.C. § 2241(c) for sexually assaulting a four-year-old girl. The district court


      1
         The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
sentenced him to 135 months of imprisonment and four years of supervised release.
The applicable guideline range was 135 to 168 months of imprisonment. After
serving his time in prison, Red Feather began his term of supervised release in July
2004, and was placed in a community facility in Rapid City, South Dakota. The
government filed a petition to revoke Red Feather’s supervised release later that year
after he absconded from the facility with two women. The government rescinded that
petition after the state dismissed charges relating to the escape. On one occasion in
December 2004, he tested positive for marijuana and cocaine.

        Later, in March 2005, he was transferred to another facility for poor attendance
and lack of participation in sex offender treatment. He was terminated from the
second facility for falling asleep during treatment sessions and for inappropriate
conduct with female clients. As a result, his supervised release was revoked on June
1, 2005, and he was sentenced to 12 months in custody followed by 30 months of
supervised release. After release from custody on February 1, 2006, Red Feather was
placed again in the Rapid City community facility. The doctor in charge of the Rapid
City treatment program terminated Red Feather’s participation in the program when
he suspected Red Feather of violating the confidentiality of group participants by
sharing discussion details with facility residents not participating in the program. He
then was admitted to another sex offender treatment program outside the Rapid City
facility. On June 10, 2006, he tested positive for alcohol consumption. Four days
later, he was terminated from the program, which violated the terms of his supervised
release. The government filed a petition to revoke the supervised release that same
day.

      At the revocation hearing, the district court2 determined the applicable
revocation range was 5 to 11 months. The government asked for an upward variance


      2
        The Honorable Richard H. Battey, Senior United States District Judge for the
District of South Dakota.

                                          -2-
from the revocation range. The district court then sentenced Red Feather to 30 months
of imprisonment with no term of supervised release to follow. At the hearing, the
district judge explained his decision as follows:

   The Court is to consider the sentencing range, but also take into account certain
   factors listed in 18 United States Code section 3553(a) which includes a
   statutory goal of deterrence, incapacitation, and rehabilitation, the pertinent
   circumstances of the individual case, the applicable policy statements, sentence
   uniformity, and, if necessary, restitution. . . . The Court finds that the sentence
   to be imposed is necessary to further the goals of deterrence. The Court is not
   convinced that the defendant has rehabilitated nor can he be rehabilitated under
   the existence of supervised release if reinstituted. [Red Feather]’s continued to
   display the same pattern of selfish, immature, and belligerent behavior as he did
   prior to being revoked last year. He continues to disregard the conditions of the
   Court and of those in authority . . . . He has continued to manipulate those
   around him to satisfy his wants and has no desire to stop abusing substances
   which adds credence to the fact that he will go to any means to attain some type
   of hallucinogenic effect. This is particularly important since he was intoxicated
   when he admitted both previous sexual assaults.3

On appeal, Red Feather argues that the district judge erred on two accounts: first, the
sentence represents an extraordinary variance without extraordinary justifying
circumstances and therefore is unreasonable; and second, the sentence is greater than
is necessary to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).

                                           II.

      Congress has given district courts the authority to revoke supervised release and
“require the defendant to serve in prison all or part of the term of supervised release

      3
        The Court presumes that the district court meant to say that Red Feather was
intoxicated when he committed both previous assaults. The record evidence indicates
his intoxication at the time of the felonies’ commission, and not the time of their
admission.

                                          -3-
authorized by the statute for the offense that resulted in such term of supervised
release . . . .” 18 U.S.C. § 3583(e)(3) (2000). “In fashioning an appropriate
revocation sentence, the district court is to consider the sentencing range, but also
‘must take into account certain of the factors listed in 18 U.S.C. § 3553(a), including
the statutory goals of deterrence, incapacitation, and rehabilitation; the pertinent
circumstances of the individual case; applicable policy statements; sentencing
uniformity; and restitution.’” United States v. Nelson, 453 F.3d 1004, 1006 (8th Cir.
2006) (quoting United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)); see also
18 U.S.C. § 3583(e) (Supp. II 2002). Sentences imposed following revocation of
supervised release are subject to appellate review for reasonableness. See United
States v. Larison, 432 F.3d 921, 922 (8th Cir. 2006); United States v. Tyson, 413 F.3d
824, 825 (8th Cir. 2006). The reasonableness of the sentence is to be gauged in
relation to the relevant § 3553(a) factors listed above. See Nelson, 453 F.3d at 1006.

A.    An “Extraordinary Variance” Must Be Supported by “Extraordinary
      Circumstances”

        Red Feather’s first argument is that his extraordinary variance was based on
quite ordinary violations of his supervised release conditions. We have held in the
past that “an extraordinary variance must be supported by extraordinary circumstances
. . . .” United States v. Lyons, 450 F.3d 834, 837 (8th Cir. 2006); see also United
States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). Red Feather makes much of
the fact that the 30 month sentence imposed amounted to 272 percent of the upper end
of the revocation range. Such an upward variance almost certainly is “extraordinary”
under our precedents. See, e.g., United States v. Reithemeyer, 2006 U.S. App. LEXIS
29100, *5-*6 (8th Cir. Nov. 22, 2006) (upward variance from 12 months to 36 months
deemed extraordinary); United States v. Beal, 463 F.3d 834, 836 (8th Cir. 2006)
(downward departure from 188 months to 104 months deemed extraordinary); United
States v. Likens, 464 F.3d 823, 825-26 (8th Cir. 2006) (100 percent downward
variance deemed extraordinary); Dalton, 404 F.3d at 1030 (downward departure from


                                         -4-
240 months to 60 months is extraordinary). Red Feather’s sentence, then, was
reasonable only if there existed extraordinary circumstances for varying so drastically
from the revocation range.

       When modifying or revoking supervised release, a district court is to consider,
inter alia, the possibility that a defendant’s violations of his supervised release
conditions will place others in danger, and the possibility of correctional treatment.
See 18 U.S.C. §§ 3553(a)(2)(C)-(D) & 3583(e) (2000). Red Feather claims that the
alcohol consumption that resulted in his termination from the program is by no means
an extraordinary circumstance. In many cases, that may be unassailably true.
However, cast against the background of Red Feather’s criminal history and substance
abuse problem, the alcohol consumption presents an extraordinary threat to the
community. Red Feather is a two-time sex offender. When he was 17 years old, he
committed a violent rape. Within a year of being released from state custody for that
juvenile rape conviction, he sexually abused a 4-year-old girl. Most importantly, in
both cases Red Feather claimed he was so drunk he could barely remember the crimes.
His past behavior reflects a correlation of alcohol abuse and egregious sexual
misconduct and violence.

       In addition to the protection of the public, the district court was concerned with
Red Feather’s lack of progress in sex offender treatment, and concluded that
supervised rehabilitation was unlikely. At the hearing, the court mentioned the prior
revocation of supervised release, Red Feather’s alcohol consumption, his lax
participation in sex offender treatment, as well as the alleged confidentiality breach
as evidence that Red Feather appeared unwilling or unable to take advantage of the
opportunities his probation officer and the supervised release program offered him.

       In the Nelson case, we affirmed a district court’s revocation of supervised
release and imposition of a 24-month sentence despite a revocation range of 4 to 10
months. See 453 F.3d at 1006-07. The defendant, who had been convicted of

                                          -5-
conspiracy to manufacture marijuana, had failed four drug tests during his supervised
release. Id. at 1005. In imposing the 24-month sentence, the district court mentioned
that the defendant’s long history of drug abuse made treatment unlikely to succeed.
See id. at 1006. In addition, the court made clear that the longer sentence was
necessary to further the goals of deterrence and incapacitation stressed in 18 U.S.C.
§§ 3553(a) and 3583(e). See id.

      Red Feather, much like Nelson, has refused to rehabilitate while subject to
supervised release. Though the upward variance in this case exceeds the variance in
Nelson (272 percent versus 240 percent), Red Feather’s inability to curb his alcohol
consumption constitutes a much more serious threat than the violation charged in
Nelson. Red Feather’s continued substance abuse, along with his unwillingness to
benefit from the sex offender treatment, constitute a grave threat to the community and
an unlikely case for rehabilitation. The district court was within its discretion to
sentence Red Feather to 30 months of imprisonment.

B.    “Sufficient, But Not Greater Than Necessary”

       Red Feather’s second argument is that his 30-month sentence is greater than
necessary to achieve the statutory purposes of sentencing and should be reversed. 18
U.S.C. § 3553(a) does indeed require any sentence imposed to be “sufficient, but not
greater than necessary” to achieve the relevant statutory purposes of sentencing. 18
U.S.C. § 3553(a) (2000). In the case of revocation of supervised release, the relevant
purposes are set forth in 18 U.S.C. § 3553(a)(2)(B)-(D). See id. § 3583(e). Those
factors include affording adequate deterrence to criminal conduct, the protection of
the public from further crimes, and the provision of rehabilitative and medical
treatment.




                                         -6-
       Specifically, he contends that the 30-month sentence is greater than necessary
to protect the public and provide adequate rehabilitation. See App.’s Br. 13-14.4 As
noted above, the district court was concerned with the protection of the public and Red
Feather’s demonstrated inability to rehabilitate while subject to supervised release.
The 30-month sentence is reasonable accommodation of the district court’s obligation
to impose a sentence that is sufficient, but not greater than necessary, to provide
adequate protection of the public and rehabilitation of the defendant.

                                         III.

      For the reasons stated, we affirm Red Feather’s sentence.




      4
        Red Feather also argues that the “nature and circumstances of his case, along
with his personal history and characteristics, demonstrated the need for continued,
perhaps closer, supervision instead of merely warehousing [him] back in prison.”
App.’s Br. 13. This argument is inapposite in the context of the sufficient-but-not-
greater-than-necessary clause. It is true that a district court must “consider” those
factors when sentencing a defendant, see 18 U.S.C. § 3553(a)(1), but the sufficient-
but-not-greater-than-necessary clause only applies to the sentencing goals enumerated
in subsection (a)(2).

                                         -7-
