* The Honorable D.P. Marshall Jr., United St ates District Judge for the Eastern District of Arkansas, sitting by designation.

1 The Honorable Robert W. Pratt, Chief Judge of the United States District Court for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-2097

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Kris Erhardt Koestner, * * [PUBLISHED] Defendant - Appellant. *

___________ Submitted: December 17, 2010 Filed: December 23, 2010

___________ Before LOKEN and BYE, Circuit Judges, and MARSHALL, * District Judge.

___________ PER CURIAM. Kris Koestner pleaded guilty to one count of tampering with a witness, 18 U.S.C. § 1512(b)(3), to cover up the fraudulent use of food stamp benefits at his grocery store in Centerville, Iowa. Consis tent with the written plea agreement, the district court 1 sentenced Koestner to one year of probation. However, noting that-2- Koestner was a “millionaire,” the court al so imposed a $100,000 fine, an amount that was $70,000 above the advisory guidelines range, see U.S.S.G. § 5E1.2(c)(3), but well-within the statutory maximum for the offense, $250,000, see 18 U.S.C. § 3571(b)(3). Koestner appeals, arguing th e fine is substantively unreasonable. We deferentially review the reasonableness of a sentence for abus e of discretion. “[I]t will be the unusual case when we reverse a distri ct court sentence -- whether within, above, or below the applicable Guidelines range-- as substantively unreasonable.” United States v. Feemster , 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quotation omitted). We affirm.
Koestner argues that the district court abused its discretion because it based the amount of the fine on his financial means, noton the nature of his offense. This is contrary to U.S.S.G. § 5H1.10, Koestnerargues, which instructs that “SocioEconomic Status [is] not relevant in the determination of a sentence.” But this advisory Policy Statement does not trump the governing statute, which provides that the district court, in determining the amount of a fine, must consider Koestner’s “income, earning capacity, and financial res ources,” in addition to other factors such as “the need to deprive the defendant of illegally obtained gains from the offense.” 18 U.S.C. § 3572(a)(1), (5); see U.S.S.G. § 5E1.2(d)(2), which further provides, “The amount of the fine should always be sufficien t to ensure that the fine, taken together with other sanctions imposed, is punitive.”
Here, Koestner was a relatively wealthy retailer who acquired at least a portion of his wealth by fraudulent abuse of the food stamp program. The district court described Koestner’s releva nt conduct as “extremely egregious . . . . Defendant systematically exploited th e poor, defrauded the State of Iowa out of significant sums of money, and attempted to interfere with the administration of justice.” In these circumstances, in lieu of a prison sentence, a substantial fine wa s appropriate not only to ensure that the sentence was punitive as to Koestner personally, but also to deter other retailers from si milar conduct. Thus, the amount of the fine was reasonably-3- related not only to Koestner’s ability to pa y a fine, but also to the relevant conduct associated with his offense. There was no abuse of discretion. We reject Koestner’s argument that we may not consider the dist rict court’s additional explanation of its reasons for imposing an upward variance set forth in its Order denying Koestner’s motion to stay the fine pending appeal. Compare Feemster , 572 F.3d at 459 (considering statements made at a post-sentencing hearing).
The judgment of the district court is affirmed.

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