United States Court of Appeals

For the Eighth Circuit

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No. 19-2073

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Rodney Minner

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Harrison

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 Submitted: April 13, 2020

Filed: June 19, 2020

[Unpublished] 

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Before BENTON, BEAM, and KOBES, Circuit Judges. 

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PER CURIAM.

Rodney Minner pleaded guilty to willfully failing to collect or pay employment

taxes for his “Rowdy Beaver” restaurants in violation of 26 U.S.C. § 7202, and
stipulated to a tax loss of $1,095,267.02. The district court1

 varied upward from his

Guidelines range of 27 to 33 months and sentenced him to 36 months’ imprisonment. 

Minner appeals, arguing his sentence is substantively unreasonable because the court

ignored or failed to sufficiently weigh mitigating factors and based its decision to

vary upward on a factor that was already accounted for in his Guidelines range. We

affirm. 

We apply a deferential abuse of discretion standard when reviewing the

substantive reasonableness of a sentence. United States v. Feemster, 572 F.3d 455,

461 (8th Cir. 2009) (en banc). “A district court abuses its discretion when it (1) fails

to consider a relevant factor that should have received significant weight; (2) gives

significant weight to an improper or irrelevant factor; or (3) considers only the

appropriate factors but in weighing those factors commits a clear error of judgment.” 

Id. (cleaned up). When a sentence is outside the Guidelines range, we must consider

the extent of the deviation while giving due deference to the district court’s decision

that the 18 U.S.C. § 3553(a) factors justified the variance. Id. at 461–62. 

Minner first argues that the district court abused its discretion by ignoring or

failing to adequately weigh his efforts to pay restitution, acceptance of responsibility,

age, family support, and the consequences his incarceration would have for 45

employees. The record does not support this argument. Though district courts “need

not specifically respond to every argument made by the defendant,” United States v.

Ballard, 872 F.3d 883, 885 (8th Cir. 2017) (per curiam) (citation omitted), here the

court explicitly noted that Minner had not made progress toward paying restitution

despite having ample time to liquidate assets. It also indicated that Minner did not

appreciate the seriousness of his offense, and noted that—although a prison sentence

might affect his employees—he had plenty of time to get his affairs in order. 

1The Honorable P.K. Holmes, III, United States District Judge for the Western

District of Arkansas.

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In sentencing Minner, the court highlighted the fraud’s nine-year duration, the

extent of his fraud, and how he was “living high on the hog” with an expensive house,

real estate, boats, and significant amounts of cash. Sent. Tr. 14. It underscored that

Minner’s failure to pay taxes jeopardized his employees’ well-being, and that it had

“never seen a case of knowing and intentional fraud and deceiving the government

like [this one].” Sent. Tr. 13–14. The district court did not ignore relevant factors

and did not abuse its discretion by weighing the factors differently than Minner would

have liked. United States v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011).

Minner also argues that the district court improperly based its decision to vary

on the duration of his failure to pay taxes when that was already accounted for in his

base offense level. This argument has two problems. First, the court set Minner’s

base offense level at 20 because the amount of tax loss exceeded $550,000, not the

nine-year duration of his conduct. See U.S.S.G. §§ 2T1.6, 2T4.1(H). Second, even

if Minner’s Guidelines range had accounted for the duration of his conduct, we have

held that “factors that have already been taken into account in calculating the

advisory Guidelines range can nevertheless form the basis of a variance.” United

States v. David, 682 F.3d 1074, 1077 (8th Cir. 2012). The district court did not give

an improper factor significant weight or otherwise abuse its discretion. We affirm.

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