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 The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2995

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United States of America,

Appellee,

v.

Jason Long Soldier, Sr.,

Appellant.

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Appeal from the United States

District Court for the District of

South Dakota.

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Submitted: November 14, 2005

 Filed: December 23, 2005 

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Before MURPHY, McMILLIAN and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

Appellant Jason Long Soldier, Sr. pled guilty to one count of making a false,

fictitious and fraudulent material statement and representation within the jurisdiction

of the United States Department of Agriculture (the “DOA”) in violation of 18 U.S.C.

§ 1001. The district court1

 determined an advisory U.S. Sentencing Guidelines range
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of 0-6 months and imposed a sentence of 12 months’ imprisonment. Long Soldier

appeals his sentence. For the reasons discussed below, we affirm.

I. Background

Long Soldier was arrested after an investigation conducted by the Office of

Recoveries and Fraud Investigation for the South Dakota Department of Social

Services (the “SDDSS”) revealed that he made false written statements regarding his

household income and benefits and his residence address when applying to receive

food stamp assistance, a program within the jurisdiction of the DOA. 

After entering his guilty plea, Long Soldier was allowed to remain free subject

to the conditions of his bond, which included a requirement that Long Soldier not

consume alcohol. At a presentencing bond violation hearing, Long Soldier admitted

that he violated a term of his pretrial release by appearing intoxicated in public, and

his bond was revoked. At the sentencing hearing, the district court calculated the

advisory guidelines range as 0-6 months but noted the bond violation along with Long

Soldier’s lengthy criminal record, history of failing to comply with conditions of

probation and supervised release, unwillingness to gain employment, and chronic

substance abuse. Given these facts, the district court determined that the appropriate

sentence was 12 months’ imprisonment. The district court also ordered Long Soldier

to pay $2,982.00 in restitution to the SDDSS. Long Soldier appeals the sentence.

II. Discussion

Long Soldier argues that the district court erred as a matter of law by holding

that “there’s no such thing as an upward departure anymore with the Booker and

Fanfan cases.” We review the district court’s conclusions of law de novo. United

States v. Mashek, 406 F.3d 1012, 1016 (8th Cir. 2005). We have held that a district

court should consider and may apply appropriate departures when determining the
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The district court did, however, effect an upward variance. Although Long

Solider does not argue that the district court erred as a matter of law by making an

upward variance post-Booker, such an argument would have been meritless. United

States v. Shannon, 414 F.3d 921, 923 (8th Cir. 2005) (holding that, post-Booker, the

sentencing court may effect an upward variance). 

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advisory guidelines range following United States v. Booker, 543 U.S. 220 (2005).

United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005). However, the district

court’s comment was harmless error as to Long Soldier. Because the district court

apparently believed that departures under the guidelines had been abolished, it did not

attempt to effect one.2

 The district court’s erroneous belief that it could not depart

upward did not deprive Long Soldier of any substantial–or even beneficial–right. He

was deprived merely of the opportunity to receive an upward departure and, perhaps,

a longer sentence. As such, any error is harmless pursuant to Fed. R. Crim. P. 52(a).

Long Soldier next argues that the district court erred as a matter of law by

imposing his sentence above the guidelines range without providing him notice

pursuant to Fed. R. Crim. P. 32(h). Rule 32(h) provides that under certain

circumstances the district court must give notice to the parties that it is contemplating

a departure from the guidelines range. However, notice pursuant to Rule 32(h) is not

required when the adjustment to the sentence is effected by a variance, rather than by

a departure. United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005). Because

the district court effected only an upward variance, no Rule 32(h) notice was required.

Long Soldier also claims that the district court erred by refusing to grant him

a two-level reduction in his offense level for acceptance of responsibility pursuant to

the U.S. Sentencing Guidelines Manual § 3E1.1(a). Whether the defendant accepted

responsibility is a factual question that depends largely on credibility assessments

made by the sentencing court. United States v. Rodamaker, 56 F.3d 898, 901 (8th Cir.

1995). This Court gives great deference to the district court’s denial of a request for

a reduction for acceptance of responsibility and reviews the decision for clear error.
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Id. The district court denied the § 3E1.1(a) reduction at sentencing, citing Long

Soldier’s bond violation, continued abuse of alcohol and consequent failure to gain

employment that would enable Long Soldier to pay restitution. Long Soldier argues

that these reasons were insufficient grounds for denying the reduction, given that

Long Soldier accepted responsibility by virtue of his guilty plea and the Government

acknowledged that he had demonstrated acceptance of responsibility. 

While the entry of a plea of guilty constitutes significant evidence of acceptance

of responsibility, this evidence still may be outweighed by conduct of the defendant

that is inconsistent with such acceptance. U.S.S.G. § 3E1.1, cmt. n.3 (2004). In

determining whether a defendant qualifies for an acceptance of responsibility

reduction, the district court may consider aspects of the defendant’s conduct beyond

the mere fact of his guilty plea. See id. § 3E1.1, cmt. n.1, n.3, n.4; United States v.

Martinez, 234 F.3d 1047, 1048 (8th Cir. 2000) (per curiam) (holding that the denial

of a § 3E1.1 reduction was proper where the defendant failed alcohol and drug tests

while under the supervision of a halfway house and absconded from the halfway

house prior to a bond revocation hearing). Given that Long Soldier violated his bond,

failed to seek treatment for his alcoholism, remained unemployed, and made no effort

to pay restitution to the SDDSS, the district court did not clearly err in refusing to

grant Long Soldier a reduction for acceptance of responsibility. 

Long Soldier also asserts a two-pronged challenge related to the reasonableness

of his sentence. He argues that the district court erred by failing to cite to 18 U.S.C.

§ 3553(a) in determining his sentence and that the resulting sentence was

unreasonable. First, we consider Long Soldier’s argument regarding the district

court’s failure to refer to § 3553(a). Long Soldier claims that because the district

court did not include “any reference to” § 3553(a) when pronouncing his sentence, the

district court “completely ignored” the § 3553(a) factors. Whether the district court

must refer specifically to § 3553(a) in determining a sentence is a question of law.

Long Soldier’s argument is misguided. The relevant inquiry is not whether the district
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court quoted or cited § 3553(a); it is whether the district court actually considered the

§ 3553(a) factors and whether “our review of these statutory factors leads us to

conclude that they support the reasonableness of the district court’s sentencing

decision.” United States v. May, 413 F.3d 841, 847 (8th Cir. 2005). Accordingly, the

district court did not err merely because “§ 3553(a)” was not specifically mentioned

when the district court pronounced the sentence.

Second, we consider Long Soldier’s argument that his sentence is unreasonable.

Whether a sentence is reasonable in light of § 3553(a) is reviewed for abuse of

discretion. United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). A

sentencing court abuses its discretion if it fails to consider a relevant factor that should

have received significant weight, gives significant weight to an improper or irrelevant

factor, or considers only the appropriate factors but commits a clear error of judgment

in weighing those factors. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.

2005). In the context of reviewing a sentence for reasonableness, a proper or relevant

factor is one listed under § 3553(a). See id. at 1002-03. 

The Haack test for reasonableness is satisfied in this case. The record does not

indicate that the district court failed to consider a relevant factor or, conversely, that

it considered an improper or irrelevant factor. Further, we find no clear error of

judgment in the district court’s weighing of the § 3553(a) factors. Rather, the district

court’s findings in support of the upward variance demonstrate that the sentence is

reasonable under § 3553(a). The district court noted Long Soldier’s long criminal

history, his record of noncompliance while previously on probation and supervised

release, his unwillingness to obtain employment, and his ongoing substance abuse

problem. See 18 U.S.C. § 3553(a)(1). Further, the court found that probation was not

an appropriate sentence because it would not be a deterrent. See id. § 3553(a)(2)(B)

and (3). The district court also considered the victim and ordered restitution to the

SDDSS. See id. § 3553(a)(7). Accordingly, the district court did not err by imposing

an unreasonable sentence.
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III. Conclusion

Accordingly, we affirm the sentence of the district court.

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