1 The Honorable Charles A. Shaw, United St ates District Judge for the Eastern District of Missouri. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 10-1027

___________ United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. William E. McKanry, *

* Appellant. *

___________ Submitted: September 22, 2010 Filed: January 10, 2011

___________ Before RILEY, Chief Judge, MELLOY and COLLOTON, Circuit Judges.

___________ RILEY, Chief Judge.

A jury convicted William E. McKanry of conspiring to defraud lenders in violation of 18 U.S.C. § 371, lying to a Unite d States postal worker in violation of 18 U.S.C. § 1001(a)(2), mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and wire fraud in violation of 18 U.S.C. §§ 1343 and 2. The district court 1 sentenced McKanry to 27 months imprisonment. The district court also imposed victims’ restitution in the amount of $732,753.47. McKanry appeals his conviction and sentence. We affirm.2 We state the relevant facts “in the lightmost favorable to the jury’s verdicts and accept[] all reasonable inferences in support thereof.” United States v. Van Nguyen , 602 F.3d 886, 890 (8th Cir. 2010), cert. denied , ___ U.S. ___, 131 S. Ct. 342 (2010) and ___ U.S. ___, 131 S. Ct. 352 (2010).

-2- I. BACKGROUND A. Facts 2 1. Mortgage Fraud Scheme The government charged McKanry for hi s participation in the fraudulent sale and financing of twelve re sidential properties. The scheme involved a conspiracy between members of a sellers group and a buyers group. The se llers group consisted of McKanry and his son, William C. McKanry (Chris), as co-owners of USA Properties, LLC. Chris also owned USA Title, LLC. The buyers group consisted of the named purchaser of the properties, Li nda Moses, Moses’s sister Paula Williams, her niece Heather Williams, and mortgage br oker Paula Enders. Real estate agent Brian Triggs operated as an intermediary between the buyers and sellers groups.

USA Properties sold the twelve prope rties to Moses in December 2005 and January 2006. In order to obtain financing, the buyers group falsely prepared Moses’s mortgage application, overs tating Moses’s net worth and income. The scheme also involved “dual contracting,” which creates a “spread” between the amount of money the seller wants to take away from the d eal and the amount of money the lender is willing to provide. The buye rs and sellers present a written contract to the lender containing a “sales price” that was artificia lly inflated over what the buyers and sellers verbally understood to be the “real price.”

The excess funds created by the “spread ” were distributed to buyers group members by way of payouts at closing, withthe mortgage broker Enders taking the largest amount. The buyers group justified these cash payouts on the closing-3- documents by falsely including expenses fo r management or re pair and improvement of the properties.

Before each closing, Chris, Enders, a nd Triggs met to review the figures associated with the sale and determine th e amount the sellers group needed to provide for the down payment. Then at closing, one of the sellers group members would provide a cashier’s check in Moses’s name to use for the down payment. Although the down payment came from the sellers group, th e closing documents falsely stated that Moses provided the down payment in order to make the lenders believe Moses was more creditworthy. In reality, Moses coul d not afford to make the down payments. For each of the twelve transactions, eith er McKanry or Chris—on behalf of USA Properties—signed the releva nt closing documents, which reflected the bogus payouts and inaccurate sourcing of the down payments.

The lenders wired the funds for these transactions to USA Title on the various closing dates. After the closings, USA Title mailed the executed closing documents to the lenders. Because each of the lending institutions was located outside Missouri, the wire transfers and mailings necessarily moved in interstate commerce.

As a result of the scheme, Moses recei ved loans totaling $2,711,400 enabling her to purchase all twelve properties wit hout providing any down payment. Enders received $224,874.74 in bogus payments a nd her company, Foundation Mortgage, acquired an additional $55,438.00. Heather Williams and Paula Williams received $22,361.55 and $23,294.35, respec tively. In exchange for the properties, USA Properties received $2,323,863.09. Of that amount, $1,902,664.81 went towards paying off prior loans on the propertie s. The remaining $421,198.28 was USA Properties’ net take. After the closi ngs, the buyers group was unable to pay the mortgages and the lenders foreclosed on all of the properties.-4- 2. Investigation In 2007, the Federal Bureau of Inves tigation and the United States Postal Inspector Service investigated these transactions. As part of the investigation, Postal Inspector Jeff Walter interviewed McKanry, who denied making the down payments on behalf of, or in the name of, Moses.

Heather Williams later contacted Inspect or Walter regarding a potential meeting she was to have with McKanry. On September 25, 2007, at Inspector Walter’s direction, Heather Williams met with McKa nry at a coffee shop a nd secretly recorded the meeting. During their conversation, McKanry explained, “The only way [the investigators] could do anything to us is, if they could prove that I gave [Moses] the down payment . . . . Which maybe once or tw ice I did it.” McKanry also discussed Enders, saying, “I’d blame everything on he r, cause they can’t prove otherwise.” After assuring Heather Williams that she could not get into trouble because she was merely a victim of circumstance, McKanry stat ed, “I don’t think a nything’s gonna happen to us unless they could go back and say, well, these four d eals . . ., you gave the money to [Moses] to close. It’s not disclosed here.”

B. Prior Proceedings In June 2008, a federal grand jury indict ed McKanry, his son Chris, and Enders. Chris and Enders entered plea agreements with the government. On July 16, 2009, a superseding indictment was then filed ag ainst McKanry. Count 1 charged McKanry under 18 U.S.C. § 371 with conspiracy to commit bank fraud, ma il fraud, wire fraud, and making a false statement to a government agent. Count 2 charged McKanry with knowingly and willfully making a materially false, fictitious and fraudulent statement to a United States government agent in vi olation of 18 U.S.C. § 1001(a)(2). Counts 3 through 21 charged McKanry under 18 U.S.C. §§ 2, 1341, and 1343, as applicable, with mail and wire fraud in association with the sale of nine of the properties.3 The jury convicted McKanry on Counts 1, 2, and 15-21. The jury acquitted McKanry on Counts 3-14. The mail and wire fraud convictions related to transactions involving three properties: (1) 1812 Wade Court, (2) 612 Forrester Drive, and (3) 11717 Talbott Court

. The mail and wire fraud acquitta ls related to transactions involving six other properties.

-5- McKanry’s five-day trial began on Oct ober 5, 2009. Chri s, Enders, Moses, Triggs, and Heather Williams all testified fo r the government. On October 9, the jury returned a verdict of guilty on nine of th e twenty-one counts, including conspiracy, making a materially false statement to a government agent, and seven counts of mail and wire fraud associated with three of the properties. 3 Responding to a special interrogatory, the jury found McKanry c onspired with others to commit bank fraud, mail fraud, wire fraud, and making a false statement to a government agent.

Following the verdict, a United States Pr obation Officer prepared a presentence investigation report (PSR), cal culating McKanry’s base offe nse level at 7. The PSR recommended a fourteen-level increase pursuant to U.S.S .G. § 2B1.1(b)(1)(H), based on the lenders’ actual loss
, as well as a two-level increase for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The PSR calculated a total offense level of 23 and a criminal history category of I, resulting in an advisory Guidelines range of 46 to 57 months. The PSR also recommended victims’ restitution in the amount of $732,753.47.

McKanry objected to the PSR, challengi ng the loss calculation, which affected both the § 2B1.1(b)(1) enhancement and the amount of restitution, as well as the § 3C1.1 enhancement for obstruction of justice. On December 22, 2009, the district court overruled McKanry’s objections, and sentenced McKanry to 27 months imprisonment, which represented a 19-m onth downward variance from the bottom of the advisory Guidelines ra nge, and two years supervised release. The court also imposed $732,753.47 in victims’ restitution. McKanry appeals both his conviction and
sentence.4 The government concedes it failed to prove conspiracy to commit bank fraud at trial because it failed to produce evid ence the lenders were federally insured. Therefore, McKanry’s conviction will be sust ained only if there is sufficient evidence to prove he conspired to commit mail fraud or wire fraud, or to make a materially false statement.

-6- II. DISCUSSION A. Sufficiency of Evidence We review sufficiency of evidence cha llenges de novo and “rev erse[] only if no reasonable jury could have found the defe ndant guilty.” United States v. Clay , 618 F.3d 946, 950 (8th Cir. 2010). “Evidence is sufficient to sustain a conviction if, when viewed in the light most favorable to th e government, it offers substantial support for the verdict.” Id. (quoting United States v. Slaughter , 128 F.3d 623, 627 (8th Cir. 1997)).

1. Conspiracy We first consider whether the eviden ce was sufficient to support McKanry’s conviction for conspiring to commit mail, bank and wire fraud and to make a materially false statement to a United Stat es Postal Inspector. In order to convict McKanry of conspiracy, the government need ed to prove: “(1) a conspiracy with an illegal purpose existed; (2) [McKanry] knew of the conspiracy; and (3) [McKanry] knowingly joined and participated in th e conspiracy.” United States v. Price , 542 F.3d 617, 620 (8th Cir. 2008). Where, as in this case, the government alleges a conspiracy to commit multiple crimes, “the charge is sustained by adequate pleadings and proof of conspiracy to commit any one of the offenses.” United States v. Wedelstedt , 589 F.2d 339, 342 (8th Cir. 1978) (quoting United States v. James , 528 F.2d 999, 1014 (5th Cir. 1976)). 4

McKanry does not dispute there was a c onspiracy pursuant to which the buyers group agreed to deceive the lenders to obt ain financing for the transactions. The-7- government adequately demonstrated, thr ough the testimony of co-conspirators, that the scheme involved selling the properties ata price lower than the reported contract price. The government also establishe d the scheme involved the sellers group, including McKanry, deceptively providing the down payment m oney in Moses’s name. Finally, the jury heard testimony and observed exhibits showing McKanry knew of and actively participated in the sc heme. In light of this evidence, it was reasonable for the jury to convict McKanry of conspiracy to commit mail and wire fraud.

McKanry argues this evidence was insufficient to support his conspiracy conviction because he did not harm or in tend to harm the lenders, claiming he was only trying to “expedite the closings.” McKanry contends he was unaware, did not intend, and could not foresee that Mose s would stop making payments on the loans. McKanry’s argument fails because it atte mpts to isolate his acts—selling the properties below the contract price a nd providing the down payments—from the remainder of the conspiracy. As discusse d above, McKanry participated in a scheme to deceive the lenders on the value of th e collateral. The conspirators fraudulently induced the lenders to make loans secured by insufficient collateral. Consequently, the lenders received a greater credit risk and less collateral than represented and expected. Thus, the conspiracy harmed th e lenders upon closing, independent of any eventual foreclosures.

We also reject McKanry’s argument th at the evidence was insufficient because the “use of mail and wire was incidental to the alleged fraud and occurred after the alleged fraud had already been committed.” While the use of mail and wire must be “a part of the execution of the fraud,” they “need not be an esse ntial element of the scheme,” but merely “incident to an essentia l part of the scheme.” Schmuck v. United States , 489 U.S. 705, 710-11 (1989). A mailing or wiring “may be routine or even sent for a legitimate purpose so long as it assists in carrying out the fraud.” United States v. Nelson , 988 F.2d 798, 804 (8th Cir. 1993).-8- In this case, the lenders’ wiring of th e funds and USA Title’s mailing of the loan documentation carried out the essentia l purposes of the mo rtgage fraud. The scheme could not have reached fruiti on without USA Title mailing the closing documents to the lenders and the lenders wiring the money to fund the transactions. We reject McKanry’s contention that the deals were complete prior to USA Title mailing the loan documents b ecause there was adequate evidence the lenders would have unwound the loans had they not received these closing documents.

Finally, we dismiss McKanry’s contenti on that he could not have reasonably foreseen the use of interstate mailing a nd wiring, because McKanry, an experienced real estate professional, signed documents showing the lender was located outside of Missouri and specifically enumerated “Courier/Overnight Fees” and “Wire Transfer Fee.” See United States v. Edelmann , 458 F.3d 791, 811-12 (8th Cir. 2006) (finding interstate mailing was reasonably foreseeab le to purchaser fraudulently applying for a home loan because he signed closing doc uments which specifically enumerated a mailing fee).

The evidence is sufficient to support the jury’s verdict as to the conspiracy
count.

2. Mail and Wire Fraud McKanry also challenges the sufficiency of evidence supporting his convictions for the seven counts of mail and wire fraud. “To estab lish mail fraud, the government must prove: ‘(1) a scheme to defraud by mean s of material false representations or promises, (2) intent to defraud, (3) reas onable foreseeability that the mail would be used, and (4) [that] the mail was used in fu rtherance of some essential step in the scheme.’” United States v. Bryant , 606 F.3d 912, 917 (8th Cir. 2010) (alteration in original) (footnote omitted) (quoting United States v. Parker , 364 F.3d 934, 943 (8th Cir. 2004)). The elements of wire fraud ar e nearly identical ex cept they involve the use of interstate wiring instead of mail. See United States v. Anderson , 570 F.3d-9- 1025, 1030 (8th Cir. 2009) (stating elements of wire fraud); United States v. Redzic
, Nos. 08-2418 and 08-3662, 2010 WL 4923272, at *2 (8th Cir. Dec. 6, 2010) (noting the mail and wire fraud statutes are “in pertinent part, identical”).

McKanry urges reversal of Counts 15 a nd 16 related to the sale of the Wade Court property, arguing “[t]he re was no evidence” he, or hi s son Chris, paid the down payment on the property or made misstatem ents regarding the purchase price. We disagree with McKanry’s characterizati on of the evidence. The evidence shows McKanry provided a $4,930.70 cashier’s check in the name of Linda Moses, which check was used for the down payment on th e Wade Court property. There was also evidence McKanry signed the Wade Court HUD form at the closing, providing bogus payout amounts of $27,892.10 to Enders and an additional $1,176.41 to Paula Williams. A reasonable jury could infer McKanry, an experienced real estate professional, was aware these bogus payout s were meant to deceive the lenders.

With respect to the Talbott Court a nd Forrester Drive properties (Counts 17- 21), McKanry’s contention that “there wa s no evidence that anything involving these particular properties was mailed or wired” is wrong. The government produced copies of the HUD Settlement Statements, shipping r eceipts, and wire transfer receipts and instructions demonstrating the sales involve d interstate wire transfers and shipments. This evidence is sufficient to support McKanry’s convictions under Counts 17-21.

3. False Statement Next, we consider McKanry’s challenge to his conviction under Count 2 for knowingly making a materially false statement to a United States Postal Inspector in violation of 18 U.S.C. § 1001 (a)(2). “To establish a violation of 18 U.S.C. § 1001, the Government must prove that: ‘(1) th e defendant made a statement; (2) the statement was false, fictitious or fraudulen t as the defendant kne w; (3) the defendant made the statement knowingly and willfu lly; (4) the statement was within the jurisdiction of a federal agency; and (5) th e statement was materi al.’” United States-10- v. Rice , 449 F.3d 887, 892 (8th Cir. 2006) (quoting United States v. Johnson , 937 F.2d 392, 396 (8th Cir. 1991)).

Inspector Walter testified that when heasked McKanry “if he made any down payments for Linda Moses,” McKanry said , “No.” McKanry’s denial was directly contradicted by evidence, including McKa nry’s recorded admission to Heather Williams, demonstrating McKanry did provi de a down payment for Moses. This evidence adequately supports the jury’s verdict.

We find no merit in McKanry’s assertion that his subsequent attempts to call Inspector Walter in order to correct his previous misst atement makes the evidence insufficient to support a conviction. McKa nry does not claim he recanted his prior statement, only that he twice tried to correct it by unsuccessfully calling Inspector Walter. Even if we were to recognize a recantation defense under § 1001, such a defense would be inapplicable here. See United States v. Cowden , 677 F.2d 417, 420- 21 (8th Cir. 1982) (reversing a § 1001 convi ction because the defendant “almost immediately corrected” his fals e customs declaration with a “true oral statement” and because the customs agent’s failure to adhe re to agency regulation in conducting the search contributed to the existe nce of the false statement); butsee United States v. Beaver , 515 F.3d 730, 742 (7th Cir. 2008) (expl aining “§ 1001 contains no recantation defense”); United States v. Sebaggala , 256 F.3d 59, 64 (1st Cir. 2001) (“[W]e see no basis for writing into [§] 1001 a recantation defense that Congress chose to omit.”). McKanry did not recant.

B. Sentencing Issues McKanry challenges his sentence, a lleging both procedural error and substantive unreasonableness. Specifically , McKanry contends the district court miscalculated his Guidelines range by (1 ) improperly calculating the victims’ loss, which increased his Guidelines range unde r U.S.S.G. § 2B1.1(b)(1) and his restitution obligations; and (2) enhanci ng his base offense level fo r obstruction of justice under-11- U.S.S.G. § 3C1.1. McKanry also argues his sentence violates the requirements of 18 U.S.C. § 3553(a).

“In reviewing a sentence, this court ‘must first ensure that the district court committed no significant procedural error, su ch as failing to calculate (or improperly calculating) the Guidelines range, . . . failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’” United States v. Bridges , 569 F.3d 374, 378 (8th Cir. 2009) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). “If the sentence is procedurally sound, we ‘then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’” Id.

1. Loss Calculation We first examine McKanry’ s challenge to the district court’s loss calculation, which enhanced the Guidelines range unde r U.S.S.G. § 2B1.1(b)(1) and his restitution obligations. Because “‘the damage wrought by fraud is sometimes difficult to calculate’ . . . a district court is char ged only with” reasonably estimating the loss using a preponderance of evidence standard. United States v. Parish , 565 F.3d 528, 534 (8th Cir. 2009) (quoting United States v. Agboola , 417 F.3d 860, 870 (8th Cir. 2005)); see also U.S.S.G. § 2B1.1, cmt. n.3(C) (“The court need only make a reasonable estimate of the loss” ). We review the districtcourt’s loss calculation for clear error and will affirm “unless it is not supported by substantial evidence, was based on an erroneous view of the law, or [we have] a firmconviction that there was a mistake after reviewing the entire r ecord.” United States v. Theimer , 557 F.3d 576, 578 (8th Cir. 2009).

The amount of loss by fraud is generally “the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. n.3(A). In this case, th e sentencing court accepted the PSR’s actual loss calculation of $732,753. 47. This amount represented “the-12- difference between the unpaid principal ba lance of the twelve mortgages and the subsequent sales price of the properties.”

McKanry argues the government failed to prove the loss of $732,753.47 was fully attributable to McKanry, as opposed to normal market conditions, and thus the amount in the PSR was entirely speculative. McKanry suggests the actual loss to the lenders was the result of a falteri ng housing market, not his misconduct.

We disagree. The sentencing court applied the formula recommended by the Guidelines and utilized by this court. See Parish , 565 F.3d at 535 (“To obtain our loss estimate, we subtract the value of the colla teral at the time of sentencing . . . from the amount of the loan proceeds.”). “The appropr iate test is not whether market factors impacted the amount of loss, but whether the market factors and the resulting loss were reasonably foreseeable.” Id.

McKanry knowingly participated in a scheme that made an otherwise unqualified borrower appear more creditworthy and able to purchas e twelve properties without providing any down payment. We agree with the government, “it was more than reasonably foreseeable th at . . . these twelve deals, which were somehow wildly profitable both to the sellers and buyers in a down real estate market, exposed the lenders to the losses they actually suffered.”

We also disagree with McKanry’s proposition that the calculation was improperly inflated because it included the loss of all twelve properties. McKanry explains he was only charged for substantive crimes associated with nine of the properties, was convict ed for crimes associated withonly three of those properties, and there was insufficient evidence to s upport conviction for one of those three properties. Thus, McKanry claims the loss amount should only reflect the lenders’ losses for two of the twelve properties, wh ich he calculates at $78,628.56. Using this-13- calculation, the enhancement would have b een eight instead of fourteen, resulting in a reduced sentencing range of 21 to 27 months and less restitution.

McKanry’s argument fails to recognize the distinction between the burden of proof employed at trial and sentencing. Unlike a jury applying a reasonable doubt standard, the district court at sentencing evaluates the facts using a preponderance of evidence standard. See United States v. Tyndall , 521 F.3d 877, 883 (8th Cir. 2008). It is appropriate for the district court to consider facts underlying an acquittal “when those facts appear to be sufficiently reliable [and] the government need not prove such facts beyond a reasonable doubt.” United States v. Olderbak , 961 F.2d 756, 765 (8th Cir. 1992); see Tyndall , 521 F.3d at 883 (“[A] district court may use a defendant’s relevant conduct in sentenci ng if it finds by a preponderan ce of the evidence that the conduct occurred, even if that conduct formedthe basis of a criminal charge on which a jury acquitted the defendant.”). The di strict court did not err by basing its loss calculation upon the fraudulent transactions for which McKanry was acquitted or not charged, because a preponderance of ev idence supports the conclusion McKanry engaged in conduct furthering th e fraud on all twelve properties.

McKanry was convicted for his role in a fraudul ent conspiracy as to all twelve of the properties. The Guidelines instruct that in the case of a conspiracy, adjustments “shall be determined on the basis of . . . all reasonably foreseeab le acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B); see United States v. Hayes , 574 F.3d 460, 483-84 (8th Cir. 2009) (affirming the district court’s calculation that included loss resulting from reasonably foreseeable acts taken in furtherance of the conspiracy). McKanry was an active participant in the overall scheme to deceive the lenders. His participation began by engaging in dual contracting, and continued with deceptively providing funds for the down payments, signing documents containing statements he knew to be false, and lying to Inspector Walter. We find no e rror in holding McKanry jointly and severally liable for the actual losses the lenders incurre d as a consequence of this conspiracy.-14- 2. Obstruction of Justice Enhancement McKanry next challenges the districtcourt’s assessment of a two-level enhancement under U.S.S.G. § 3C1. 1 for obstruction of justice. “The district court’s factual findings at sentencing are reviewed for clear error, and the district court’s application of the sentencing guidelines to the facts is reviewed de novo .” United States v. Finck , 407 F.3d 908, 913 (8th Cir. 2005). We show great deference when reviewing the district court’s factual findi ngs, reversing only when those findings are insufficient under a preponderance of evidence st andard. See United States v. Montes-Medina , 570 F.3d 1052, 1061 (8th Cir. 2009).

The district court applied the enhancemen t for obstruction of justice, in part, because McKanry made materially false statements to Inspector Walter when he “denied that he assisted [Moses] with any down payments on the properties.” Pursuant to the Guidelines, the district c ourt was correct to appl y the enhancement for McKanry’s obstructive conduct even though McKanry was convicted for that same conduct. See U.S.S.G. § 3C1.1, cmt. n.8 (instructing application of this two-level enhancement where the defendant’s convic tion for the obstructive conduct is grouped with the underlying conviction); see also United States v. Herr , 202 F.3d 1014, 1018 (8th Cir. 2000) (“[I]mposition of the [§ 3C1.1] adjustment is not an impermissible double counting.”). We find no merit in Mc Kanry’s claim that the district court impermissibly relied on the probation offi cer instead of making an independent determination. The district court merely sought input from the probation officer. Nothing indicates the district court did not make its own indepe ndent determination in properly concludi ng § 3C1.1 applied.

McKanry next urges that the governme nt failed to demonstrate Inspector Walter’s investigation was in any way obstructed or impeded by McKanry’s denial of providing the cashier’s checks for the clos ings. We agree with McKanry that the enhancement applies only when th e materially false statement “ significantly-15- obstructed or impeded the official investigation or pr osecution of the instant offense.” U.S.S.G. § 3C1.1 cmt. n.4(g) (emphasis added); see Finck 407 F.3d at 913-14 (applying note 4(g)). However, we disagree that McKanry’s denial did not so obstruct and impede. The sellers group’s handling of the down payments under false pretenses was a key fact in a difficult to prove cons piracy. As McKanry told Heather Williams, “The only way [the investigat ors] could do anything to us is, if they could prove that I gave [Moses] the down payment.” Had McKanry told Inspector Walter the truth about the down payments during their mee ting, the investigation and prosecution reasonably would have proceeded more qui ckly and required less effort. Instead, Inspector Walter needed to use clandestin e tactics such as equipping Heather Williams with a recording device in order to prove this material fact. We find no error in the district court’s conclusion that McKanry’s denial significantly obstructed the investigation and prosecution.

3. Procedurally Sound and Substa ntively Reasonable Sentence McKanry proposes his sentence “was pro cedurally and substantively infirm.” McKanry contends the “distr ict court did not truly consider 18 U.S.C. § 3553(a)” as evidenced by the district court’s “glib” response to McKanry’ s objections and its failure expressly to mention those f actors. Once again, we disagree.

“We do not require the district cour t to mechanically recite the § 3553(a) factors when, as here, it is clear from the record that the court properly considered those factors.” United States v. Lazarski , 560 F.3d 731, 733 (8th Cir. 2009). In imposing McKanry’s sentence of 27 months, the district court discussed McKanry’s age, his physical condition and medical problem s, his lack of prior criminal history, the seriousness of the offense, and various sentencing objectives. The district court explicitly considered the § 3553(a) f actors and assessed a 19-month downward variance from the bottom of the 46 to 57 month advisory Guidelines range.-16- We also reject McKanry’s challenge to the substantive reasonableness of the sentence. “[W]here a district court ha s sentenced a defendant below the advisory guidelines range, ‘it is nearly inconceivable that the court abused its discretion in not varying downward still further.’” United States v. Moore , 581 F.3d 681, 684 (8th Cir. 2009) (quoting Lazarski , 560 F.3d at 733).

III. CONCLUSION We affirm the jury’s verdict a nd the district court’s sentence.

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