                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1023
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Dawn Muir

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the District of South Dakota - Aberdeen
                                  ____________

                           Submitted: October 17, 2016
                            Filed: October 27, 2016
                                 [Unpublished]
                                 ____________

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
                          ____________

PER CURIAM.

       In December 2015, Dawn Muir pleaded guilty to one count of larceny in
violation of 18 U.S.C. §§ 1153 and 661. At the time of the charges, Muir served as
executive director of the Pretty Bird Woman House1 in McLaughlin, South Dakota,
and had been under investigation by the federal government for misappropriating
funds. The district court2 sentenced Muir to forty-one months' imprisonment followed
by three years of supervised release, a sentence above the Guidelines range of 27 to
33 months.3 The court also ordered restitution in the amount of $29,973.13. Muir
appeals, arguing the sentence is unreasonable and beyond the contemplation of the
parties in the submitted plea agreement; that the district court procedurally erred in
calculating the applicable Guidelines range; and that the court erred in determining the
restitution amount. The government responds that even if the district court
procedurally erred in calculating or pronouncing the suggested Guidelines range in
this case, any error was harmless. We affirm.

       As part of her duties as executive director, Muir had access to an "emergency
fund" from which she wrote checks totaling around $30,000 beginning in April 2011
and continuing through August 2012. All of the checks were made payable directly
to Muir, except for one that had a blank payee, one that was made out directly to
Muir's personal bank, and one that was written out to cash. At the sentencing hearing,
Agent Miller with the Federal Bureau of Investigation testified about details of the
investigation, including a listing of checks and disbursements from the emergency


      1
       The Pretty Bird Woman House was a domestic violence shelter that provided
services to abused women from the Standing Rock Indian Reservation, and was
funded, in part, by grant funds from the Department of Justice.
      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
      3
        During sentencing, the district court did err in its verbal pronouncement that
the calculated Guidelines range was 33 to 41 months. Muir's total offense level was
16, with a criminal history category of III, and thus the range is 27 to 33 months.
U.S.S.G. Ch. 5, Pt. A. However, the district court's statement of reasons accurately
states the Guidelines range based on the court's findings and, as discussed herein, the
court made plain its intention to impose the 41-month sentence.

                                          -2-
fund to Muir during the time in question, the lack of receipts and vouchers for the
amounts received by Muir from the fund, and the illogical nature of the alleged travel
that supported the mileage reimbursements taken by Muir from the account. Muir
testified on her own behalf as well, admitting that she was responsible for around
$5,000 of disbursements without notations, and apologizing to the court for doing
things improperly and being derelict in her duties as executive director. She claimed
that all checks with notations were proper requests that she carried out according to
the procedures she knew about at the time. In the plea agreement, the parties agreed
that in exchange for her guilty plea, the parties would jointly recommend a sentence
of probation, the government would not oppose a request by Muir for a downward
departure, and that the restitution amount would be set in an amount to be determined
by the district court but would not be in an amount less than $5,000 nor more than
$30,000.

       "In reviewing a challenge to a sentence, we 'must first ensure that the district
court committed no significant procedural error.'" United States v. Dace, 660 F.3d
1011, 1013 (8th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
In review for procedural error, "we review a district court's factual findings for clear
error and its interpretation and application of the guidelines de novo." Id. (quoting
United States v. Bryant, 606 F.3d 912, 918 (8th Cir. 2010)). "Procedural errors, like
the miscalculation of a defendant's offense level, are subject to harmless-error review."
United States v. Sigillito, 759 F.3d 913, 940 (8th Cir. 2014). "If we discover no
procedural error, we then consider the substantive reasonableness of the sentence
imposed under a deferential abuse-of-discretion standard." United States v.
Timberlake, 679 F.3d 1008, 1011 (8th Cir. 2012). "[A] district court's credibility
determinations [at sentencing] are virtually unreviewable on appeal." United States
v. Smith, 681 F.3d 932, 935 (8th Cir. 2012) (alterations in original) (quoting United
States v. Bridges, 569 F.3d 374, 378 (8th Cir. 2009)).




                                          -3-
       As to the alleged procedural error, Muir questions the district court's Guidelines
calculations to the extent it added points based upon its perception that Muir was lying
in her testimony, trying to mislead the court, that she had not properly accepted
responsibility, and that her intended loss exceeded $30,000.4 She claims that based
on these findings, the court erred in adding a two-level enhancement for obstruction
of justice, in refusing to grant Muir a two-level reduction for acceptance of
responsibility, and in determining that a six-level enhancement was appropriate based
on the intended loss. During the sentence pronouncement, the district court made
clear its reasoning and intention behind its Guidelines calculation and the upward
variance in this case, noting, among many other things, Muir's refusal to take
responsibility for her actions other than to admit that she was careless in many ways,
finding that Muir perjured herself on the stand, discussing the seriousness of the
offense, discussing the abuse of public trust that took place in this matter and relying
on testimony that the total loss was closer to $45,000. In doing so the court
additionally noted that it "would apply an upward variance, regardless of the guideline
range." Relying upon the court's credibility determinations, which we discern no basis
to alter given the court's colloquy and reasoning, we find no procedural error.

       Even were we to assume the court procedurally erred, "[t]here may be instances
when, despite application of an erroneous Guidelines range, a reasonable probability
of prejudice does not exist," Molina-Martinez v. United States, 136 S. Ct. 1338, 1346
(2016), as when it is apparent on the record that the court would have arrived at the
same term of imprisonment absent the procedural error. Id.; United States v. Henson,
550 F.3d 739, 742 (8th Cir. 2008). Here, based on the sentencing colloquy, it is clear
that even though the district court erred in its pronouncement of the applicable
Guidelines range at the hearing, any error was harmless because it did not affect the

      4
        Muir also takes issue with the district court's failure to follow the plea
agreement submitted in this case, though she recognizes the district court was free, in
its discretion, to reject that recommendation. Accordingly, we need not address that
argument.

                                          -4-
ultimate determination of the sentence. Molina-Martinez, 136 S. Ct. at 1346-49.
Also, given the sentencing court's wide latitude in weighing the § 3553(a) factors in
each case, as well as the district court's colloquy at sentencing, we find the ultimate
sentence was likewise substantively reasonable. Timberlake, 679 F.3d at 1012-13.

       Finally, Muir argues that the district court erred in ordering restitution in the
amount of $29,973.13, claiming that the district court should have relied on Muir's
admissions concerning the amount of funds that were misused by her, and that the
government failed to present sufficient evidence of the restitution amount. Muir
waived her right to contest the amount of restitution in the valid appeal waiver of all
non-jurisdictional issues contained in the plea agreement and offers nothing on appeal
suggesting why this waiver should be set aside. United States v. Schulte, 436 F.3d
849, 850 (8th Cir. 2006) (holding that a waiver that includes all issues except
jurisdiction does encompass restitution).

      For the reasons stated herein, we affirm.
                       ______________________________




                                          -5-
