                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-1593
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Northern
                                          * District of Iowa.
Kody Harris,                              *
                                          *
             Appellant.                   *
                                          *
                                     ___________

                              Submitted: October 18, 2004
                                 Filed: December 3, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Defendant Kody Harris appeals his sentence of 188 months and maintains that
the district court1 erred in two respects. He argues first that the district court should
not have enhanced his sentence for using a minor to commit a crime because the
Sentencing Commission exceeded its authority by extending that enhancement to
defendants who are under the age of twenty-one. See U.S.S.G. § 3B1.4 (2002).
Mr. Harris also contends that the court erred in denying his request for a three-level

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
downward adjustment for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(b) (2002). We affirm.

       Mr. Harris, who was nineteen years old when the relevant offense occurred,
involved his seventeen-year-old girlfriend in the purchase of substances to be used
in the manufacture of methamphetamine. In United States v. Wingate, 369 F.3d 1028,
1030-32 (8th Cir. 2004), petition for cert. filed (U.S. Aug. 18, 2004) (No. 04-5989),
and in a companion to Mr. Harris's case, United States v. Ramirez, 376 F.3d 785, 786-
88 (8th Cir. 2004), we held that the two-level enhancement in § 3B1.4 for all
defendants who "used or attempted to use a person less than eighteen years of age to
commit the offense" is not contrary to Congress's directive to promulgate an
enhancement for defendants "21 years of age or older" who "involved a minor in the
commission of the offense," Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, § 140008(a), 108 Stat. 1796, 2033 (1994). Because there
is no language in the congressional directive limiting the enhancement to only those
defendants who are twenty-one years and older, and because all defendants twenty-
one years and older who use a minor to commit an offense will receive an
enhancement under § 3B1.4, we concluded that the guideline promulgated by the
Commission is not contrary to Congress's directive. This issue is squarely controlled
by our earlier cases, and we therefore reject Mr. Harris's challenge to the two-level
enhancement.

       We turn now to Mr. Harris's argument that the district court should have given
him a three-level downward adjustment for acceptance of responsibility instead of the
two-level one that it did give. See U.S.S.G. § 3E1.1(b) (2002). We believe that even
assuming that Mr. Harris is correct, his sentence would not change. "If the sentence
imposed falls within the guideline range urged by the appellant and if it is clear that
the sentencing court would have imposed the same sentence regardless of whether the
appellant's argument for a lower guideline range ultimately prevailed," there can be
no reversible error in the sentence. United States v. Simpkins, 953 F.2d 443, 446 (8th

                                         -2-
Cir. 1992), cert. denied, 504 U.S. 928 (1992); see United States v. Goings, 200 F.3d
539, 545 (8th Cir. 2000); United States v. O'Hagan, 139 F.3d 641, 658 (8th Cir.
1998). In such a situation, any error in calculating the guideline range is simply
harmless. See Simpkins, 953 F.2d at 446.

       The record leads us to conclude that this is such a case. At the sentencing
hearing, the government requested that "in determining what sentence to impose ...
the Court determine a sentence that would be appropriate regardless of whether the
Defendant should have received [the] third level of acceptance." We think it clear
that the district court honored this request. After the court imposed a sentence of
188 months, the attorney for the government commented that the sentence imposed
was within the overlap between the two putative ranges. The court responded, "It was,
and it was intentional. I had intended, actually, to sentence him at a higher – give
him a higher sentence, but I took into consideration what you told me."

        This is not a case where the sentence imposed was at the bottom of the
overlapping area; if it were, there might be an inference that the court would have
given Mr. Harris a lower sentence if he had received a three-level adjustment. Cf.
United States v. Luster, 896 F.2d 1122, 1130 (8th Cir. 1990). The total adjusted
offense level, as stated by the court, was thirty-four. Had the defendant been granted
the additional reduction, he would have been at level thirty-three. There is an
overlapping range among those levels of 168 to 188 months. Thus, the district court
could have easily imposed a sentence of less than 188 months and still have sentenced
Mr. Harris within the overlap. Considering the court's unwillingness to do so, as well
as its remarks at sentencing, we conclude that the court would have imposed the same
sentence even if it had granted Mr. Harris an adjustment under § 3E1.1(b).

      Accordingly, we affirm Mr. Harris's sentence.
                     ______________________________



                                         -3-
