1 The Honorable Linda R. Reade, United St ates District Judge for the Northern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2324

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. Steven Black Devine, * * [UNPUBLISHED] Appellant. *

___________ Submitted: November 13, 2006 Filed: November 21, 2006

___________ Before RILEY, BEAM, and SMITH, Circuit Judges.

___________ PER CURIAM. Steven Black Devine appeals his sent ence after conviction of making a false declaration before a grand jury in viol ation of 18 U.S.C. § 1623(a). Devine argues that the district court 1 erred in finding his perjury was "in respect to a criminal offense," and that his sentence is unreasonable.
While questioning Devine before the gr and jury, an Assistant United States Attorney told Devine that the grand jurywas "empowered to investigate possible-2- violations of federal law." Further, Devine was inform ed that "[t]his particular investigation involves matters related to the manufacture of methamphetamine, the distribution of pseudoephedrine, and matters re lated to that." Devine then, admittedly, falsely answered questions involving the sale of pseudoephedrine.
At sentencing, the district court revi ewed with Devine his plea agreement, including the possibility of a maximum of fiveyears (60 months') incarceration. After argument, the district court concluded that the false testimony was "in respect to a criminal offense." Thus, under United States Sentencing Guidelines Manual § 2J1.3(c)(1), the advisory gui deline for perjury, the districtcourt was required to crossreference U.S.S.G. § 2X3.1, the guideline fo r acting as an accessory after the fact. The district court found that under section 2X3.1 Devine's level was 29, gave a twolevel adjustment for acceptance of respons ibility, and, with Devine's category I criminal history, found his advisory range to be 70 to 87 months' incarceration.
Devine requested a variance, arguing that policies of Devine's employer pharmacy mitigated his role in the sale of pseudoephedrine. After reminding counsel that the charged crime was perjury rather th an the sale of pseudoephedrine, the district court sentenced Devine to the perjury st atutory maximum of 60 months' incarceration.
Devine argues that the district court e rred in finding his perjury was "in respect to a criminal offense." The determination that testimony is "in respect to a criminal offense" is a factual finding reviewed for clear error. United States v. Blanton , 281 F.3d 771, 775 (8th Cir. 2002). Citing law fro m other circuits, Devine suggests that in order for him to have te stified "in respect to a criminal offense" the Government must have put him on notice, before his testimony, of the specific details of the grand jury's investigation. However, Blantonholds that a witness is provided sufficient notice of the grand jury's investigative targ et when he or she is advised of "the nature of the grand jury's inquiry." Id. at 776 (emphasis added). Because Devine knew that the grand jury was investigating th e manufacture of methamphetamine and-3- distribution of pseudoephedrine, as well as related matters, we find no clear error in the district court's determination that the perjury was "in respect to a criminal offense."
Devine further argues that the district c ourt refused to consider his argument for a variance based on the policies of his employe r. Devine suggests that this failure to grant the variance results in an unreasonable sentence. We review for abuse of discretion. E.g. , United States v. Likens , 464 F.3d 823, 825 (8th Cir. 2006).
Here, the advisory range as calculated by the district court suggested 70 to 87 months' incarceration. The statutory maximum, however, was 60 months. 18 U.S.C. § 1623(a). When the statutory maximum is below the minimum of the applicable guideline range, the statutory maximum beco mes the advisory sentence. U.S.S.G. § 5G1.1(a).
The district court, in determining De vine's sentence, considered the presentence investigation report, briefing and argument, statements by Devine at sentencing and when pleading guilty, as we ll as his age, education, and honorable discharge. Further, the district court considered the 18 U.S .C. § 3553(a) factors reflecting the need for adequate deterren ce, the seriousness of the criminal conduct, and the need to avoid unwarranted senten ce disparities. After considering similar cases, and noting the seriousness of lying befo re a grand jury, the district court denied the request for a variance and sentenced De vine to 60 months' incarceration.
The only basis Devine provides for argui ng his sentence is unreasonable is that the district court did not grant a vari ance based on his employer's pseudoephedrine distribution policy. The basis for the varian ce is an attempt to justify the distribution of pseudoephedrine rather than the perjury for which Devine pled guilty. Given that there is no relevant basis for a variance, and that the district court correctly calculated the guideline range and considered the 18 U.S.C. § 3553(a) factors, we find no abuse-4- of discretion in denying the variance and sentencing Devine to the statutory maximum advisory sentence.
We affirm the district court in all respects.

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