1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1593

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Kody Harris, *

*

Appellant. *

*

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Submitted: October 18, 2004

Filed: December 3, 2004

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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Defendant Kody Harris appeals his sentence of 188 months and maintains that

the district court1

 erred in two respects. He argues first that the district court should

not have enhanced his sentence for using a minor to commit a crime because the

Sentencing Commission exceeded its authority by extending that enhancement to

defendants who are under the age of twenty-one. See U.S.S.G. § 3B1.4 (2002).

Mr. Harris also contends that the court erred in denying his request for a three-level
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downward adjustment for acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1(b) (2002). We affirm.

Mr. Harris, who was nineteen years old when the relevant offense occurred,

involved his seventeen-year-old girlfriend in the purchase of substances to be used

in the manufacture of methamphetamine. In United States v. Wingate, 369 F.3d 1028,

1030-32 (8th Cir. 2004), petition for cert. filed (U.S. Aug. 18, 2004) (No. 04-5989),

and in a companion to Mr. Harris's case, United States v. Ramirez, 376 F.3d 785, 786-

88 (8th Cir. 2004), we held that the two-level enhancement in § 3B1.4 for all

defendants who "used or attempted to use a person less than eighteen years of age to

commit the offense" is not contrary to Congress's directive to promulgate an

enhancement for defendants "21 years of age or older" who "involved a minor in the

commission of the offense," Violent Crime Control and Law Enforcement Act of

1994, Pub. L. No. 103-322, § 140008(a), 108 Stat. 1796, 2033 (1994). Because there

is no language in the congressional directive limiting the enhancement to only those

defendants who are twenty-one years and older, and because all defendants twentyone years and older who use a minor to commit an offense will receive an

enhancement under § 3B1.4, we concluded that the guideline promulgated by the

Commission is not contrary to Congress's directive. This issue is squarely controlled

by our earlier cases, and we therefore reject Mr. Harris's challenge to the two-level

enhancement.

We turn now to Mr. Harris's argument that the district court should have given

him a three-level downward adjustment for acceptance of responsibility instead of the

two-level one that it did give. See U.S.S.G. § 3E1.1(b) (2002). We believe that even

assuming that Mr. Harris is correct, his sentence would not change. "If the sentence

imposed falls within the guideline range urged by the appellant and if it is clear that

the sentencing court would have imposed the same sentence regardless of whether the

appellant's argument for a lower guideline range ultimately prevailed," there can be

no reversible error in the sentence. United States v. Simpkins, 953 F.2d 443, 446 (8th
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Cir. 1992), cert. denied, 504 U.S. 928 (1992); see United States v. Goings, 200 F.3d

539, 545 (8th Cir. 2000); United States v. O'Hagan, 139 F.3d 641, 658 (8th Cir.

1998). In such a situation, any error in calculating the guideline range is simply

harmless. See Simpkins, 953 F.2d at 446.

The record leads us to conclude that this is such a case. At the sentencing

hearing, the government requested that "in determining what sentence to impose ...

the Court determine a sentence that would be appropriate regardless of whether the

Defendant should have received [the] third level of acceptance." We think it clear

that the district court honored this request. After the court imposed a sentence of

188 months, the attorney for the government commented that the sentence imposed

was within the overlap between the two putative ranges. The court responded, "It was,

and it was intentional. I had intended, actually, to sentence him at a higher – give

him a higher sentence, but I took into consideration what you told me." 

This is not a case where the sentence imposed was at the bottom of the

overlapping area; if it were, there might be an inference that the court would have

given Mr. Harris a lower sentence if he had received a three-level adjustment. Cf.

United States v. Luster, 896 F.2d 1122, 1130 (8th Cir. 1990). The total adjusted

offense level, as stated by the court, was thirty-four. Had the defendant been granted

the additional reduction, he would have been at level thirty-three. There is an

overlapping range among those levels of 168 to 188 months. Thus, the district court

could have easily imposed a sentence of less than 188 months and still have sentenced

Mr. Harris within the overlap. Considering the court's unwillingness to do so, as well

as its remarks at sentencing, we conclude that the court would have imposed the same

sentence even if it had granted Mr. Harris an adjustment under § 3E1.1(b). 

Accordingly, we affirm Mr. Harris's sentence.

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