                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-3139
                                     ___________

United States of America,                *
                                         *
             Plaintiff – Appellee,       *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   District of South Dakota.
Johnny Lunderman, also known as          *
Johnny Iron Horse,                       *
                                         *   [UNPUBLISHED]
             Defendant – Appellant.      *

                                     ___________

                             Submitted: March 8, 2010
                                Filed: March 15, 2010
                                 ___________

Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges.
                           ___________

PER CURIAM.

       Johnny Lunderman pled guilty to engaging in sexual intercourse with a girl who
was between the ages of 12 and 16 years old and at least four years his junior, in
violation of 18 U.S.C. § 2243(a). The district court1 imposed a 40 month prison
sentence, a three month upward variance from the advisory sentencing guideline
range. On appeal Lunderman challenges his sentence as unreasonable. We affirm.


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
       The district court calculated Lunderman's advisory guideline range to be 30 to
37 months based on a criminal history category of III and total offense level of 17,
including a two level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice.
That enhancement was based on the court's conclusion that Lunderman had "lied to
a federal officer repeatedly . . . knowingly and intentionally" by explaining to the FBI
on two occasions that he and the victim had not engaged in sexual relations but had
merely shook hands and hugged. The court also noted that Lunderman had struck and
fled from the police officer who first attempted to arrest him in connection with the
instant offense.

      The district court touched on the statutory sentencing factors in 18 U.S.C. §
3553(a). It discussed Lunderman's criminal history, which included an extensive
juvenile record, and his failure to reform after previous custodial and probationary
sentences. It concluded that "[t]he circumstances of the offense and the relevant
conduct justify an upward variance," and added three months to the advisory
maximum "for [Lunderman's] conduct of assaulting a federal officer and fleeing."

       We review the sentence imposed for both procedural error and substantive
reasonableness under a deferential abuse of discretion standard. Gall v. United States,
552 U.S 38, 51 (2007). In determining whether the district court imposed a
substantively unreasonable sentence, we "must give due deference to [its] decision
that the § 3553(a) factors, on a whole, justify the extent of the variance." Id.
Lunderman argues that his sentence is unreasonable because it was based in part upon
his juvenile record and because the district court "double counted" his assault of the
officer by considering it in both applying an obstruction of justice enhancement and
an upward variance. We disagree.

        The district court did not procedurally err, for it properly calculated the
guideline range, treated it as advisory, considered the § 3553(a) factors, and
adequately explained the sentence. See id. Nothing precluded the court from
considering Lunderman's juvenile record. 18 U.S.C. § 3661 ("No limitation shall be
placed on the information concerning the background, character, and conduct of a

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person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence."); see also United States
v. Miller, 484 F.3d 968, 970–71 (8th Cir. 2007) (finding no error in consideration at
sentencing of defendant's juvenile record). The assault was one of two incidents
which the court considered in applying an obstruction enhancement and that did not
preclude the court from determining that a guideline sentence would inadequately
reflect Lunderman's history and characteristics and the purposes listed in §3553(a).
The district court did not abuse its discretion in concluding that "the § 3553(a) factors,
on a whole, justif[ied] the extent of the variance." See Gall, 552 U.S at 51.

      Accordingly, the judgment of the district court is affirmed.
                            ______________________________




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