*

 The Honorable D.P. Marshall Jr., United States 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. Consistent with the written plea agreement, the

district court1

 sentenced Koestner to one year of probation. However, noting that
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Koestner was a “millionaire,” the court also 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 the fine is substantively unreasonable. We

deferentially review the reasonableness of a sentence for abuse of discretion. “[I]t will

be the unusual case when we reverse a district 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, not on the nature of his offense. This is

contrary to U.S.S.G. § 5H1.10, Koestner argues, 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 resources,” 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 sufficient 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 relevant conduct as “extremely egregious . . . . Defendant

systematically exploited the 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 was appropriate not only

to ensure that the sentence was punitive as to Koestner personally, but also to deter

other retailers from similar conduct. Thus, the amount of the fine was reasonably
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related not only to Koestner’s ability to pay 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 district 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.

______________________________