                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2073
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                   Rodney Minner

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Western District of Arkansas - Harrison
                                  ____________

                             Submitted: April 13, 2020
                               Filed: June 19, 2020
                                  [Unpublished]
                                  ____________

Before BENTON, BEAM, and KOBES, Circuit Judges.
                          ____________

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.


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

                                          -2-
       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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