                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          February 5, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 19-2052
 v.                                                (D.C. No. 1:17-CR-01549-JAP-1)
                                                          (D. New Mexico)
 DAVID LAWRENCE KRUEGER,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________


      After David Lawrence Krueger pleaded guilty to two counts of being a felon in

possession of a firearm, the district court sentenced him to a 120-month term of

imprisonment on each count, with the sentences to run concurrently. Mr. Krueger

objected that the United States had engaged in sentence factor manipulation by luring

him into selling six firearms to an undercover federal agent, including two sawed-off

shotguns and a firearm with an obliterated serial number. The district court overruled

Mr. Krueger’s objection.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mr. Krueger appeals his sentence, arguing that a downward departure was

warranted under the United States Sentencing Guidelines (the “Guidelines”) due to

sentence factor manipulation. He also argues that his 120-month sentence is

substantively unreasonable. Because Mr. Krueger has not shown that the United

States engaged in sentence factor manipulation and because the district court did not

abuse its discretion in imposing a 120-month sentence, we affirm.

                               I.    BACKGROUND

                                A. Factual History

      On January 22, 2017, a confidential informant told Erik Rutland—an

undercover special agent at the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”)—that Mr. Krueger was looking to sell “a 32 Beretta, a 22

Beretta, a 12 Gauge Winchester and a .22 rifle that looked like a machine gun.”

ROA, Vol. II at 12. The confidential informant also told Agent Rutland “that

Mr. Krueger was using methamphetamine on a daily basis and that he was pretty

strung out.” ROA, Vol. IV at 42. The confidential informant knew Mr. Krueger

through “work in the oil fields,” and through the confidential informant’s brother,

who owned a tire shop in Farmington, New Mexico, where Mr. Krueger was living.

ROA, Vol. IV at 41.

      Agent Rutland had worked with this confidential informant on several prior

occasions and attested to the confidential informant’s reliability. ATF had an

arrangement whereby it would pay the confidential informant for information about

firearms and narcotics sales in the Farmington, New Mexico, area. But, pursuant to a

                                          2
signed agreement, if ATF caught the confidential informant selling or illegally

possessing firearms, it would terminate the arrangement.1

      The confidential informant notified Agent Rutland that Mr. Krueger had

firearms for sale in Farmington, New Mexico. Agent Rutland subsequently offered

$400 for each gun if Mr. Krueger would deliver the firearms to Cuba, New Mexico.

Mr. Krueger agreed to do so.

      On January 25, 2017, ATF agents searched the confidential informant’s car to

verify it did not contain any weapons and then placed a GPS tracking device on the

vehicle. The confidential informant next picked up Mr. Krueger at the tire shop,

helped load the weapons into the car, and the two of them drove together to Cuba,

New Mexico. Agent Rutland met Mr. Krueger and the confidential informant in Cuba

and purchased four firearms for $1,600.2

      Later the same day, the confidential informant contacted Agent Rutland about

purchasing additional firearms from Mr. Krueger.3 The confidential informant sent


      1
         Agent Rutland testified that, if he had suspected the confidential informant
was using Mr. Krueger as a middleman, he “probably would have gone through with
the sale but got rid of the investigation and terminated the informant.” ROA, Vol. IV
at 62.
      2
        Agent Rutland later testified that—based on his experience doing
approximately 400 similar deals—it did not appear Mr. Krueger was selling firearms
on behalf of the confidential informant. Specifically, Agent Rutland testified that, if
the confidential informant was “in on it,” Mr. Krueger would have consulted with the
confidential informant about the terms of the deal sometime during the January 25,
2017, transaction. ROA, Vol. IV at 49.
      3
         Agent Rutland several times testified that the confidential informant reached
out to arrange a second transaction on January 24, 2017. But he also testified that the
                                           3
Agent Rutland pictures of a sawed-off shotgun and a second shotgun with a sawed-

off stock and an intact barrel.

      On February 1, 2017, Agent Rutland met Mr. Krueger and the confidential

informant at the tire shop to purchase the two sawed-off shotguns. Agent Rutland and

Mr. Krueger negotiated over the price of the shotguns, with Mr. Krueger promising

that “he would make [Agent Rutland] a great deal next time.” ROA, Vol. IV at 53.

They eventually settled on a price of $350 per shotgun. One of the shotguns had an

obliterated serial number. Agent Rutland complimented the sawed-off barrel on one

of the shotguns and asked if Mr. Krueger had done the modification himself.

Mr. Krueger answered, “No.” ROA, Vol. IV at 54. Agent Rutland also inquired about

purchasing an additional firearm that he suspected Mr. Krueger had in his possession,

but Mr. Krueger declined, stating he does not like “being naked.” ROA, Vol. IV at

56. Mr. Krueger further stated “he was going to go back to Oklahoma and [would]

potentially get more firearms to sell.” ROA, Vol. IV at 56. Throughout the

transaction, the confidential informant was “just standing there observing.” ROA,

Vol. IV at 54.

      ATF never ascertained where Mr. Krueger obtained the six firearms he sold to

Agent Rutland.




confidential informant made contact “after the first undercover transaction, later on
in that day.” ROA, Vol. IV at 51. We assume Agent Rutland meant to say January 25,
not January 24.
                                          4
                               B. Procedural History

      On June 13, 2017, a grand jury indicted Mr. Krueger on two counts of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On March 14,

2018, Mr. Krueger pleaded guilty to both counts in the indictment pursuant to a plea

agreement. In that plea agreement, Mr. Krueger admitted to the following:

             On January 25, 2017, in Sandoval County, in the District of New
      Mexico, I, David Lawrence Krueger, having been convicted of robbery
      with a firearm, possession of a stolen vehicle, aggravated robbery, uttering
      two or more bogus checks exceeding $500, uttering a forged instrument,
      and domestic abuse: assault and battery (2nd or subsequent offense), all
      felony crimes punishable by imprisonment for a term exceeding one year,
      knowingly possessed four firearms which I gave to an undercover ATF
      agent in exchange for $1600. Specifically, I possessed a German Sports
      Gun GSG-5 model .22LR caliber rifle bearing serial number A279283, a
      Beretta 3032 Tomcat model .32 auto caliber pistol bearing serial number
      DAA088229, a Beretta 21A model .22LR caliber pistol bearing serial
      number DAA355608, and a Winchester model 1300 Defender 12-gauge
      pump-action shotgun bearing serial number L1935879. All four firearms
      functioned as designed, and met the federal definition of a firearm. None of
      these firearms were manufactured in New Mexico. I knew I was not legally
      allowed to possess firearms.
              On February 1, 2017, in San Juan County, in the District of New
      Mexico, I, David Lawrence Krueger, having been convicted of robbery
      with a firearm, possession of a stolen vehicle, aggravated robbery, uttering
      two or more bogus checks exceeding $500, uttering a forged instrument,
      and domestic abuse: assault and battery (2nd or subsequent offense), all
      felony crimes punishable by imprisonment for a term exceeding one year,
      knowingly possessed two firearms which I gave to an undercover ATF
      agent in exchange for $700. Specifically, I possessed a Winchester model
      1300XTR 20-gauge weapon-made-from-a-shotgun with an obliterated
      serial number, and a Forehand Arms Company single-shot 12-gauge
      weapon-made-from-a-shotgun bearing serial number 109465. Both of these
      firearms functioned as designed, and met the federal definition of a firearm.
      Neither of these firearms were manufactured in New Mexico. I knew I was
      not legally allowed to possess firearms.



                                            5
ROA, Vol. I at 30–31. The United States agreed to recommend a 2-level decrease in

Mr. Krueger’s offense level for his acceptance of personal responsibility.

      The United States Probation Office prepared a presentence investigation report

(“PSR”) that calculated the base offense level as 26. The PSR then added a 2-level

enhancement because the offense involved six firearms; another 2-level enhancement

because the offense involved two sawed-off shotguns; and a 4-level enhancement

because at least one of the firearms had an altered or obliterated serial number. Even

though these enhancements mathematically yielded a total offense level of 34, the

PSR stopped adding additional levels at 29, the cumulative maximum under the

applicable Guidelines provision. See U.S.S.G. § 2K2.1(b). The PSR then subtracted 2

levels for acceptance of responsibility and 1 level because Mr. Krueger pleaded

guilty. These adjustments yielded a total offense level of 26.

      The PSR further calculated Mr. Krueger’s criminal history category as VI.

With a total offense level of 26 and a criminal history category of VI, the PSR

calculated Mr. Krueger’s Guidelines imprisonment range as 120 to 150 months.

      Mr. Krueger objected to the PSR, arguing that he neither supplied nor

modified any of the firearms. Instead, he claimed the confidential informant supplied

the firearms and Mr. Krueger acted merely as a middleman. To apply a sentencing

enhancement based on the characteristics of the firearms, he argued, would therefore

amount to sentence factor manipulation. In the alternative, Mr. Krueger asked the

district court to “depart or vary to a sentence of 84 months based on an offense level



                                           6
of 23 and a criminal history category of VI.”4 ROA, Vol. I at 46. The United States

requested the statutory maximum sentence of 120 months.5

      At a hearing on January 30, 2019, the district court overruled Mr. Krueger’s

written objection and adopted the factual statements in the PSR as its findings of fact.

The district court then sentenced Mr. Krueger to 120-month terms of imprisonment

on each of the two counts, to run concurrently, followed by a 3-year term of

supervised release.

      Mr. Krueger objected, alleging the district court had ignored his claim of

sentence factor manipulation and had instead treated the Guidelines enhancements as

“strict liability.” ROA, Vol. IV at 31. In response, the district court announced that it

would “retract” its previously announced sentence and would instead hold an

evidentiary hearing. ROA, Vol. IV at 33.

      At that evidentiary hearing, Agent Rutland testified about the events leading to

Mr. Krueger’s arrest. The district court also admitted into evidence two videos of the

firearms transactions that corroborate Agent Rutland’s testimony.

      At the conclusion of Agent Rutland’s testimony, Mr. Krueger argued that one

could reasonably infer the confidential informant, not Mr. Krueger, had supplied the



      4
       An offense level of 23 and a criminal history category of VI yield a
Guidelines range of 92 to 115 months. See U.S.S.G. Ch. 5, Pt. A. At sentencing,
Mr. Krueger ultimately requested a 92-month sentence.
      5
        The United States later orally requested “the maximum that the court is able
to give” based on Mr. Krueger’s “incredible” criminal history. ROA, Vol. IV at 24,
26.
                                            7
six firearms. The district court disagreed and overruled Mr. Krueger’s objection,

thereby readopting the PSR’s calculated offense level of 26. The district court then

sentenced Mr. Krueger to 120 months’ imprisonment on each count, to run

concurrently. Mr. Krueger renewed his prior objections.

      The district court entered judgment on March 21, 2019. Mr. Krueger timely

filed a notice of appeal on March 26, 2019.

                                 II.    DISCUSSION

      Mr. Krueger argues the Guidelines sentence enhancements for possessing six

firearms, a sawed-off shotgun, and a firearm with an obliterated serial number were

all the product of sentence factor manipulation because the confidential informant

supplied the guns. He secondarily argues that his sentence is substantively

unreasonable. We disagree with both of Mr. Krueger’s arguments, but before we

address the merits, we must first assure ourselves of our jurisdiction to hear his

appeal.

                                   A. Jurisdiction

      The United States argues we lack jurisdiction to entertain Mr. Krueger’s

arguments because Congress has not provided us with the power to review a district

court’s discretionary denial of a downward departure from the Guidelines range. We

agree with the basic premise of the Government’s argument but disagree with its

characterization of Mr. Krueger’s argument. To place our analysis in context, we

begin with a discussion of our statutory jurisdiction and then address our decisions

implementing that statute.

                                           8
       Congress has provided that a criminal defendant may appeal and that we have

jurisdiction to review a sentence that “(1) was imposed in violation of law; (2) was

imposed as a result of an incorrect application of the sentencing guidelines; . . . (3) is

greater than the sentence specified in the applicable guideline range . . . ; or (4) was

imposed for an offense for which there is no sentencing guideline and is plainly

unreasonable.” 18 U.S.C. § 3742(a). The government is correct that nothing in this

statute provides us with the power to review a district court’s purely discretionary

decision not to depart downward. See, e.g., United States v. Davis, 900 F.2d 1524,

1530 (10th Cir. 1990) (“In short, when a sentence is within the guideline range and is

not imposed in violation of law, or as a result of an incorrect application of the

guidelines, then the district court’s refusal to exercise its discretion to depart

downward from the guideline range is not appealable.” (footnotes omitted)); see also

United States v. Penuelas-Gutierrez, 774 F. App’x 493, 495–96 (10th Cir. 2019)

(unpublished) (“Congress did not grant appellate jurisdiction for refusals to depart

downward.” (quotation marks omitted)); United States v. Sierra-Castillo, 405 F.3d

932, 936–37 (10th Cir. 2005) (stating same rule).

       In United States v. Lacey, 86 F.3d 956 (10th Cir. 1996), however, we held that

we do have jurisdiction to consider sentence factor manipulation. There, we

explained:

       The government argues that this Court lacks jurisdiction to review a
       discretionary refusal to depart below the sentencing guidelines. While the
       government is correct that we will not review a district court’s
       discretionary choice not to depart downward, . . . there is no similar
       impediment to appellate review where a sentence is imposed (as Lacey

                                             9
       argues) in violation of law, or as a result of an incorrect application of the
       guidelines.
Id. at 962 n.2 (citation omitted).

       In so holding, we described sentence factor manipulation as a subspecies of the

outrageous conduct defense typically associated with entrapment. See id. at 963 &

n.5. The outrageous conduct defense, we further explained, is grounded in “due

process principles.” Id. at 964 (quoting United States v. Russell, 411 U.S. 423, 431

(1973)). In short, a sentence that violates due process principles is a sentence

imposed in violation of law over which we have jurisdiction. See 18 U.S.C.

§ 3742(a)(1) (providing that a criminal defendant may appeal a sentence that “was

imposed in violation of law”).

       The United States unconvincingly argues that our decision in Lacey is

inconsistent with our later decision in United States v. Diaz, 189 F.3d 1239 (10th Cir.

1999). In Diaz, the defendant argued “that the district court misunderstood its ability

to downwardly depart based upon [the defendant’s] entrapment defense.” Id. at 1250.

We rejected the defendant’s argument, explaining that the district court’s decision

“not to depart downward was based on a proper assessment of the evidence in the

record rather than on a misapprehension of its authority.” Id. at 1251. There, “the

[district] court clearly found that there was no sentencing entrapment . . . , and it

therefore could not sentence [the defendant] below the minimum sentence mandated

by [statute].” Id. at 1251. But we also stated that a “discretionary decision not to

depart downward is not reviewable unless the record shows that the district court


                                             10
erroneously believed that the Guidelines did not permit a departure.” Id. at 1250

(quotation marks omitted).

       Although the general proposition stated in Diaz may be too narrow, nothing in

the decision purported to overrule Lacey’s jurisdictional holding. Instead, the panel in

Diaz properly considered the defendant’s argument that the sentence “was imposed

as a result of an incorrect application of the sentencing guidelines.” See 18 U.S.C.

§ 3742(a)(2). That is, Diaz argued the district court did not understand that it had the

discretion to depart downward. The panel properly considered that argument on the

merits, concluding the district court was aware of its discretion under the Guidelines.

It then correctly determined it lacked jurisdiction to review the district court’s

decision not to exercise its discretion to depart downward. Thus, nothing in Diaz

calls into question the similar approach followed in Lacey.

       The United States also points to United States v. Lyday, No. 97-5147, 1998

WL 764688 (10th Cir. Oct. 30, 1998) (unpublished), as supportive of its position that

we lack jurisdiction here. In Lyday, as in Lacey, we reviewed the merits of the

defendant’s sentence factor manipulation argument. Id. at *4 (“We agree with the

district court that Lyday has failed to present facts sufficient to justify a departure

based on sentencing entrapment.”). And, as in Diaz, the panel considered but rejected

the defendant’s argument that “the district court did not understand it had the ability

to grant a downward departure based on the alleged sentencing entrapment.” Id. at

*3. Upon rejecting the two claims over which it had jurisdiction under 18 U.S.C.

§ 3742(a)(1) & (2), the panel dismissed the challenge to the district court’s refusal to

                                            11
depart downward for lack of jurisdiction. Id. at *4. Thus, as in Lacey and Diaz, we

reviewed only the arguments over which we had statutory jurisdiction, dismissing the

challenge to the district court’s refusal to exercise its discretion to depart downward

for lack of jurisdiction.

       Under Lacey and Diaz we may review sentence factor manipulation arguments

that fall within our statutory jurisdiction. But upon concluding that any such

argument is specious, we have no jurisdiction to review the district court’s exercise

of its discretion to deny a downward departure.

       Here, Mr. Krueger contends his sentence was imposed in violation of law

because the government engaged in sentence factor manipulation. We have

jurisdiction to review this argument as a purported violation of law. But because, as

we now explain, the district court properly rejected that argument, we lack

jurisdiction to review its decision not to depart downward from the Guidelines

sentencing range.

                                      B. Merits

   1. The Enhancements Applied to Calculate Mr. Krueger’s Guidelines Range
      Were Not the Product of Sentence Factor Manipulation.

       In an appeal from a district court’s refusal to grant a downward departure

based on sentence factor manipulation, “we review the district court’s factual

findings for clear error, and its legal determinations de novo.” United States v.

Garcia, 411 F.3d 1173, 1181 (10th Cir. 2005). We ask “whether, considering the

totality of the circumstances . . . the government’s conduct is so shocking, outrageous


                                           12
and intolerable that it offends the universal sense of justice.” Id. (alteration in

original) (internal quotation marks omitted). To prevail, “the defendant must show

either (1) excessive government involvement in the creation of the crime, or

(2) significant governmental coercion to induce the crime.” Id. (quotation marks

omitted).

       Nothing that Agent Rutland did to set up or complete the two firearms

purchases was shocking, outrageous, or intolerable. In fact, Mr. Krueger has not

pointed to any evidence that suggests excessive government involvement or

significant governmental coercion.

       Instead, Mr. Krueger bases his argument for a downward departure on three

flawed premises. First, he argues that the confidential informant—by not supplying

Mr. Krueger with a sawed-off shotgun prior to January 25, 2017—“forced there to be

a second buy.” Appellant Br. at 13. To the contrary, no one forced Mr. Krueger to

sell Agent Rutland additional firearms on February 1, 2017. And to the extent Agent

Rutland had enough evidence to conclude his investigation after the January 25, 2017

sale, he was not required to do so. “As a general matter, the government may need to

complete several transactions with a defendant during the course of an undercover

operation because [a]n undercover agent cannot always predict what information he

will learn in the course of his investigation.” United States v. Scull, 321 F.3d 1270,

1277 (10th Cir. 2003) (alteration in original) (internal quotation marks omitted).

       Second, Mr. Krueger argues that the confidential informant “provided

Mr. Krueger with sawed-off shotguns expressly for the purpose of selling them to

                                            13
Agent Rutland.” Appellant Br. at 13. No evidence supports this assertion. Agent

Rutland testified that he did not believe Mr. Krueger was selling firearms on behalf

of the confidential informant⸺based both on his experience with the confidential

informant and on the fact that Mr. Krueger never consulted with the confidential

informant about price or other matters during either transaction. Agent Rutland also

testified that the confidential informant signed an agreement with ATF prohibiting

the informant from selling firearms. And the evidence at the hearing revealed that

ATF agents saw no firearms in the confidential informant’s vehicle before the

confidential informant picked up Mr. Krueger at the tire shop. Based on this record,

we cannot conclude the district court clearly erred in finding Mr. Krueger supplied

the weapons.

      Third, Mr. Krueger asserts “he had no knowledge” of one firearm’s obliterated

serial number. Appellant Br. at 13. Yet he also acknowledges, correctly, that

U.S.S.G. § 2K2.1(b) does not require such knowledge to impose the enhancement.

See United States v. Sanders, 990 F.2d 582, 584 (10th Cir. 1993). Thus, Mr. Krueger

has failed to demonstrate sentence factor manipulation justifying a downward

departure.

   2. A 120-Month Sentence is Substantively Reasonable.

      Mr. Krueger next argues it was error for the district court to deny his request

for a variance because the various Guidelines enhancements applied to his offense

conduct do not reflect his degree of culpability. Because the district court did not

abuse its broad sentencing discretion, we affirm Mr. Krueger’s 120-month sentence.

                                           14
       “This court reviews a district court’s decision to grant or deny a request for

variance under a deferential abuse of discretion standard.” United States v. Beltran,

571 F.3d 1013, 1018 (10th Cir. 2009). “A district court abuses its discretion when it

renders a judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable.” Id. (internal quotation marks omitted). “When the district court’s

sentence falls within the properly calculated [G]uideline[s] range, this Court must

apply a rebuttable presumption that the sentence is reasonable.” Id. “The presumption

of reasonableness is, however, a deferential standard [the defendant] may rebut by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in [18 U.S.C.] § 3553(a).” Id. (first alteration in original) (internal

quotation marks omitted).

       The district court imposed a sentence of 120 months’ imprisonment, a sentence

at the low end of the applicable Guidelines range. The district court agreed with the

Guidelines calculations in the PSR, considered the § 3553 factors, and adopted the

PSR’s proposed factual findings, including its summary of Mr. Krueger’s extensive

criminal history. Under these circumstances, the district court did not abuse its

discretion in denying Mr. Krueger’s request for a variance.

       Mr. Krueger’s brief asks us to focus on his lack of individual “culpability,” but

the substance of his argument is a critique of strict liability Guidelines enhancements.

That is, he objects to the fact his sentence can be increased based on characteristics

of the guns he claims not to have known. Appellant Br. at 16–19. As such,

Mr. Krueger’s argument only tangentially implicates the district court’s assessment

                                            15
of the § 3553 factors. As we explained in United States v. Wireman, 849 F.3d 956

(10th Cir. 2017), “we have never held that the district court must explain away or

otherwise justify any perceived deficiencies that [a] particular Guideline may have.”

Id. at 964. Rather, the district court’s endorsement of the PSR’s Guidelines

calculation “acted as a functional rejection of [Mr. Krueger’s] policy disagreements

with” the three enhancements. Id. at 966. Out of an abundance of caution, we

nevertheless address Mr. Krueger’s policy arguments to ensure that “the district court

did not err by not explicitly responding to [Mr. Krueger’s] arguments for a more

lenient sentence.” Id.

      Mr. Krueger first argues that U.S.S.G. § 2K2.1(b)—by not requiring a

defendant to know a firearm’s relevant characteristics—imposes enhancements that

divorce culpability from punishment. But his argument is foreclosed by our

precedents. Specifically, in Sanders, we rejected a due process challenge to a strict

liability Guidelines enhancement for possession of a stolen firearm because

sentencing enhancements are entirely different from the elements required to obtain a

conviction. 990 F.2d at 584. For that same reason, the Guidelines may, consistent

with due process and § 3553(a), apply an enhancement for possession of a sawed-off

shotgun, a weapon “not typically possessed by law-abiding citizens for lawful

purposes.” District of Columbia v. Heller, 554 U.S. 570, 625 (2008).

      Mr. Krueger next argues that U.S.S.G. § 2K2.1(b) is inconsistent with 18

U.S.C. § 922(j), a statute that makes it a crime to possess “any stolen firearm.” As the

Ninth Circuit recently explained, however, the two provisions are “fundamentally

                                          16
different, and we cannot assume that Congress intended to include an unwritten mens

rea for the Guidelines enhancement because it included a written one for the statutory

offense.” United States v. Prien-Pinto, 917 F.3d 1155, 1160 (9th Cir. 2019).6 The

district court correctly found each Guidelines enhancement identified in the PSR

applied to Mr. Krueger’s offense conduct and reasonably applied the § 3553 factors.

It therefore did not abuse its discretion by denying Mr. Krueger’s request for a

variance.

                                III.   CONCLUSION

      Because Mr. Krueger has not shown that the United States engaged in sentence

factor manipulation, and because the sentence imposed is substantively reasonable,

we AFFIRM Mr. Krueger’s sentence. And we DISMISS Mr. Krueger’s challenge to

the district court’s denial of his request for a downward departure for lack of subject

matter jurisdiction.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




      6
         Mr. Krueger relies on the Supreme Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019). Rehaif addressed the mens rea required to violate the
crime defined by 18 U.S.C. § 922(g) but did not mention the Guidelines. Here, Mr.
Krueger admitted in his plea agreement he possessed the required mens rea to violate
§ 922(g).
                                           17
