                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                    No. 09-1137
                                 ___________
United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the Southern
      v.                                * District of Iowa.
                                        *
Byron Darren Butler,                    *
                                        *
             Appellant.                 *
                                  _____________

                               Submitted: October 23, 2009
                                   Filed: February 9, 2010
                                 _____________

Before, COLLOTON, BENTON, Circuit Judges, and PIERSOL1, District Judge.
                         _____________

PIERSOL, District Judge.

       After being indicted for being a Felon in Possession of a Firearm and
Ammunition, in violation of 18 U.S.C. § 922(g)(1), Defendant Byron Darren Butler
moved to suppress all evidence obtained through a search and seizure conducted on
September 12, 2007, by the Mid-Iowa Drug Task Force at a residence in which
Defendant resided with a woman. The .40 caliber handgun which is the subject of the
felon in possession of a firearm charge was discovered during this search. The motion


      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, sitting by designation.
to suppress was denied and Defendant proceeded to a jury trial in which he was
convicted of the felon in possession of a firearm charge. Defendant was sentenced to
a term of imprisonment of 63 months.

       On appeal Defendant challenges the district court’s denial of his motion to
suppress and the denial of his motion in limine to exclude evidence at trial. Defendant
also challenges the sufficiency of the evidence to support his conviction and whether
the district court was justified in sentencing him to 63 months of imprisonment. We
affirm the district court2 on all issues.

                                 I. Factual Background

       In September of 2007 there had been an ongoing investigation of Defendant
by the Mid-Iowa Drug Task Force. On September 12, 2007, Officer David Powell
from the Marshalltown, Iowa Police Department submitted an application for search
warrant to search a house located at 107 South 5th Avenue which was possessed by
Rachel Woodruff. The application asserted good reason and probable cause to believe
that controlled substances, drug paraphernalia, drug related cash and documents, as
well as firearms found in violation of Iowa law would be found at the home. The
application specified Defendant, as well as any other person present and connected to
drug activity at the house, as a person to be searched. In one paragraph in the two
pages of specific information supporting the September 2007 application for the
search warrant, mention is made of a 2004 search and seizure which resulted in
Defendant being arrested for possession with intent to deliver marijuana. Although
the search and seizure was ultimately suppressed and Defendant was never convicted
for any offense related to the 2004 search and seizure, the September 2007 application
does not advise of the same.


      2
        The Honorable James E. Gritzner, Judge of the United States District Court
for the Southern District of Iowa.

                                         -2-
       The September 2007 application states that on September 4, 2007, the Mid-
Iowa Drug Task Force conducted a controlled buy using a confidential informant who
went to the home of a Kenny Weston to buy crack cocaine. The application reports
that the confidential informant advised the task force that Weston would probably
leave on his bicycle to get the drugs from Defendant at an unknown location.
Investigating officers then observed the confidential informant going into Weston’s
residence and leaving. The application reports that a short time later Weston was
observed leaving on his bicycle and was followed to 107 South 5th Avenue where
officers conducting surveillance “saw a subject consistent in appearance with
[Defendant].” The application further states that Weston was then observed riding his
bicycle back to his home. Although Weston left on a bicycle and was pulling a lawn
mower behind him, the application makes no reference to the lawn mower. The
application advises that Detective Powell met with the confidential informant who
reported that Weston had sold crack cocaine to her.

       A search warrant for the residence at 107 South 5th Avenue in Marshalltown,
Iowa, was issued by a Magistrate of the Iowa District Court on September 12, 2007.
Law enforcement officers on that date also executed a search warrant on an apartment
linked to Defendant. No person, and only a small amount of furniture and personal
items were found at this apartment. The officers also found in this apartment an
energy bill in Defendant’s name, approximately $90 under a mattress, what appeared
to be residue of crack cocaine, and sandwich bags consistent with drug packaging.

       While the search was conducted at the apartment, the search warrant in issue
in this case was executed on the residence at 107 South 5th Avenue, a house owned
by Defendant’s girlfriend, Rachel Woodruff. Defendant and Rachel Woodruff were
both in the home at the time the officers entered the house. At this residence a large
quantity of marijuana, some scales and drug packaging were seized. Some of the
marijuana was being dried in the bathtub and Rachel Woodruff was attempting to



                                         -3-
flush some of it down the toilet. Bags of marijuana were also found in the upstairs
bathroom closet, and another was found under the bed in the master bedroom.

        A search of the bed in the master bedroom led to the discovery of a .40 caliber
handgun between the mattress and the box spring on the south side of the bed and
bedroom. The gun was loaded and the magazine had to be removed from the gun.
One of the detectives on the task force testified at trial that in his experience and
training he has found that persons involved in illegal drug trafficking often keep guns
to keep from being robbed and to protect themselves. The officers also seized from
the house a video monitor attached by a cable to a video camera. The detective also
testified that such video monitors were commonly found where drugs are being sold.

      On the north side of the master bedroom at 107 South 5th Avenue was a closet
with purses and other women’s items. On the south side of the master bedroom were
baseball caps and other men’s clothing. In addition, Defendant’s wallet was found on
the south side of the bed. Other items found on the south side of the master bedroom
were videotapes of Defendant and Rachel Woodruff as well as Defendant and a
woman other than Rachel Woodruff in intimate situations. One of the Government’s
witnesses, Candace Klaas, testified that she had been a friend of Defendant and had
received drugs from him. Klaas testified that although she had had sex with
Defendant at his apartment she did not believe he lived at the apartment, and that
Defendant had told her he lived with his girlfriend.

                                    II. Discussion

Denial of Suppression Motion
      Defendant relies upon Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L.
Ed. 2d 667 (1978), in contending that the district court erred in denying his motion to
suppress. The Supreme Court in Franks v. Delaware held that where a defendant
makes a substantial preliminary showing that a false statement was knowingly and

                                         -4-
intentionally, or with the reckless disregard for the truth, included by an affiant in a
search warrant affidavit, and if the allegedly false statement is necessary to a finding
of probable cause, the Fourth Amendment requires that a hearing be held at
defendant's request. The Supreme Court in Franks v. Delaware further held that if,
after such an evidentiary hearing, the defendant establishes by a preponderance of
evidence that a false statement knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the search warrant affidavit, and, with the
affidavit's false material set to one side, the remaining content of the affidavit is
insufficient to establish probable cause, the search warrant must be voided and the
fruits of the search excluded to the same extent as if probable cause was lacking on
the face of the affidavit. 438 U.S. at 155-156. The holding of Franks v. Delaware also
applies to material that has been deliberately or recklessly omitted from a
search-warrant affidavit. See United States. v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.
1993). In the case at hand, the district court followed its practice of conducting a
Franks evidentiary hearing and then determining after a record was made whether a
Franks evidentiary hearing was warranted. The Government called and the Defense
cross examined Officer Powell and another member of the task force and Defendant
was given the opportunity to call witnesses at the hearing.

       Defendant first contends that a Franks violation occurred because the
supporting affidavit for the search warrant stated that Weston left on his bicycle to go
to the house at 107 South 5th Avenue, but that the affidavit failed to state that Weston
was pulling a lawnmower behind the bicycle. Defendant maintains that the delivery
of a lawnmower is relevant in that the delivery of the lawnmower was a legitimate
reason for Weston to travel to the house where Defendant was staying. Defendant
next contends Patrol Office Powell recklessly stated that the controlled buy occurred
on September 4, 2007, when the law enforcement reports state that the controlled buy
occurred on either September 5 or 6, 2007. Defendant also complains about
references in the affidavit to the 2004 investigation in which evidence was suppressed.



                                          -5-
        In reviewing a denial of a motion to suppress, we review the district court's
factual determinations for clear error and its legal conclusions de novo. United States
v. Clarke, 564 F.3d 949, 958 (8th Cir. 2009). A showing of negligence or innocent
mistake is not enough to establish a Franks violation. The test for determining
whether an affiant's statements were made with reckless disregard for the truth is
whether, after viewing all the evidence, the affiant must have entertained serious
doubts as to the truth of his statements or had obvious reasons to doubt the accuracy
of the information he reported. United States v. Clapp, 46 F.3d 795, 801 n.6 (8th Cir.
1995). A showing of deliberate or reckless falsehood is “not lightly met.” United
States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987).

       Officer Powell testified that he did not consider the fact about the lawnmower
being pulled by Weston as a fact relevant to the investigation. The district court also
found that considering the totality of the circumstances, Weston pulling the
lawnmower to where Defendant was residing was of marginal relevance. Omissions
of facts in a supporting affidavit do not constitute misrepresentations unless they cast
doubt on the existence of probable cause. United States v. Parker, 836 F.2d 1080,
1083 (8th Cir. 1987).

       The Government contended that the controlled buy actually occurred on
September 5, 2007, although the search warrant application lists September 4, 2007,
as the controlled buy date. Officer Powell testified and the district court accepted his
testimony as true that the incorrect date on the application was the result of a
typographical error. A mere typographical error does not establish a “deliberate
falsehood,” or a “reckless disregard for the truth,” nor does it cast doubt on the
affidavit's showing of probable cause to search the residence. See, e.g.,United States
v. White, 356 F.3d 865, 868-69 (8th Cir. 2004)(incorrect date typed on pre-printed
form); United States v. Edwards, 994 F.2d 417, 425 (8th Cir. 1993).




                                          -6-
       The paragraph in the Affidavit for search warrant pertaining to the earlier
investigation in 2004 which resulted in the suppression of evidence based on a stale
application states:

      During the month of April 2004, the [task force] conducted another crack
      cocaine investigation involving [Defendant and two other individuals],
      all of who were living together at 602 E. Church St. in Marshalltown.
      During this investigation a search warrant was served at the residence.
      [The two other individuals] were both arrested for possession schedule
      II crack with intent to deliver after officers found a quantity of crack
      cocaine in their bedroom. [Defendant] was arrested for possession
      schedule I with intent to deliver after officers found 97 grams of
      marijuana in his bedroom.

The affidavit fails to advise that the 2004 search of Defendant Byron Butler was
suppressed for being stale. The affidavit contained more than a dozen additional
paragraphs of factual information implicating Defendant in illegal conduct. The
district court accepted as true Officer Powell’s testimony that he did not know that
mention of previously suppressed evidence could not be included in a subsequent
search application.

      The district court concluded that if the challenged portions of the affidavit had
been corrected, added, or omitted, the warrant still would have been supported by
probable cause. We find no clear error in the district court’s factual findings and
conclude that no Franks violation occurred which would require suppression based
on the challenged portions of the affidavit.

       Defendant contends that even if the challenged portions of the affidavit were
corrected, added or omitted, the application was still deficient in establishing probable
cause for the issuance of a search warrant. Defendant bases his argument on his
contentions that the information supplied by the confidential informant and contained
in the affidavit was not corroborated by independent evidence and that it was not


                                          -7-
established that the confidential informant had a track record of supplying reliable
information.

        As a reviewing court, we pay “great deference” to the probable cause
determinations of the issuing judge or magistrate, and limit our inquiry to discerning
whether the issuing judge had a substantial basis for concluding that probable cause
existed. See Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed.2d 527
(1983). When a confidential informant provides information in support of a search
warrant, the issuing magistrate considers the informant's reliability and the basis of his
knowledge. United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004). The totality
of the circumstances analysis applicable to probable cause determinations, however,
does not mandate that both factors be present before a warrant may issue. See United
States v. Anderson, 933 F.2d 612, 615 (8th Cir. 1991). The information from a
confidential informant is sufficiently reliable if it is corroborated by other evidence,
or if the confidential informant has a history of providing reliable information. See
United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993).

       The information from the confidential informant who implicated Defendant and
who was one of four confidential informants referenced in the affidavit, was
corroborated by surveillance officers. The surveillance officers witnessed Weston
making the bicycle trip to the residence at which Defendant resided and saw a subject
consistent in appearance with Defendant at that residence at the time Weston was at
the residence before bringing back drugs to the confidential informant as part of a
controlled buy. In a fill-in-the blank portion of the application for the search warrant,
Officer Powell advised that this confidential informant had supplied information
multiple times in the past and information supplied by this confidential informant had
led to eight arrests, and the discovery and seizure of stolen property, drugs or other
contraband. The information provided by this confidential information was
sufficiently corroborated and a sufficient track record of the confidential informant
was provided to support the district court’s finding of probable cause. The district

                                           -8-
court had a substantial basis for concluding that probable cause existed, and we affirm
the district court’s order denying Defendant’s motion to suppress.

Admission of Evidence of Drug Paraphernalia
       Defendant contends that the prejudicial effect of admitting evidence of drug
paraphernalia at his trial substantially outweighed its probative value and that the
district court erred in admitting this evidence. We review evidentiary rulings of the
district court under an abuse of discretion standard. United States v. Phelps, 168 F.3d
1048, 1054 (8th Cir. 1999). We give great deference to the district court's
determination in balancing the prejudicial effect and probative value of evidence of
other crimes, and reverse only when the evidence admitted clearly has no bearing on
any issue involved. United States v. Simon, 767 F.2d 524, 526 (8th Cir. 1985).

       Prior to trial the Government gave notice under FED. R. EVID. 404(b) that it
intended to present during its case-in-chief a number of items, including marijuana
and items consistent with drug use, which were discovered during the execution of the
search warrants on September 12, 2007. Before the trial began in Defendant’s case
the district court held a hearing which addressed a number of matters including
Defendant’s motion in limine to exclude the evidence concerning drug transactions.
The Government argued that the evidence of drug trafficking pertaining to Defendant
was relevant to his motive to possess the gun that was found under the bed and that
this evidence also established the background of the case. After considering the
holding in United States v. Claybourne,3 and balancing the prejudicial effect and
probative value of the evidence, the district court denied the motion in limine
requesting the exclusion of the evidence concerning drug transactions but advised that


      3
        In United States v. Claybourne, 415 F.3d 790 (8th Cir. 2004), a panel of this
Court held that evidence that drug paraphernalia was present in the bedroom where
a firearm was found was admissible in a prosecution for being a felon in possession
of a firearm to establish motive, opportunity, intent, and plan to possess the firearm
to protect the drug items and cash.

                                         -9-
he would consider giving the jury a limiting instructing if the defense wanted one.
During the trial the district court gave the following limiting instruction:

      Members of the jury, as I believe I indicated to you during the jury
      selection process, this case is a charge only that the defendant was in
      possession of a firearm when he had been previously convicted of a
      felony. There is going to be some evidence in the case, and this is the
      beginning of some of that now, that does deal with drug transactions that
      may or may not have dealt with the defendant but are not at issue in this
      case. The only issue in this case is the firearm charge. The evidence is
      being admitted for the purposes of showing you the circumstances under
      which the firearm was found.

       A district court judge acts within his sound discretion in admitting evidence of
prior criminal or wrongful acts when the evidence is relevant to an issue in question
other than defendant's character, when clear and convincing evidence exists that
defendant committed the prior wrongful acts, and when potential unfair prejudice of
the evidence does not substantially outweigh its probative value. See United States
v. Simon, 767 F.2d at 526. When drug-related evidence is “closely and integrally
related” to the issue of ownership and possession of firearms, the district court does
not abuse its discretion in admitting the drug-related evidence in a possession of a
firearm case. Id. After reviewing all the evidence in this case we hold that the drug-
related evidence, including the paraphernalia, was “closely and integrally related” to
the issue of ownership and possession, and that the district court did not abuse its
discretion in admitting this evidence.

Sufficiency of the Evidence
       Defendant argues that his conviction must be reversed because there was
insufficient evidence submitted at trial to prove that he possessed the firearm. We
review de novo challenges to the sufficiency of the evidence presented at trial. United
States v.Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009). In conducting this review, we
consider the evidence in the light most favorable to the jury's verdict and draw all

                                         -10-
reasonable inferences in the Government's favor. United States v. McAtee, 481 F.3d
1099, 1104 (8th Cir. 2007). We do not weigh the evidence or assess the credibility
of witnesses. We will reverse a conviction only if no reasonable jury could have
found the defendant guilty beyond a reasonable doubt. United States v. Santana, 524
F.3d 851, 853 (8th Cir. 2008).

       To convict Defendant of possession of a firearm by a convicted felon under 18
U.S.C. § 922(g)(1),4 the government had to prove beyond a reasonable doubt that
(1) Defendant had previously been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) Defendant knowingly possessed a firearm; and
(3) the firearm has been in or has affected interstate commerce. United States v.
Maxwell, 363 F.3d 815, 818 (8th Cir. 2004). The parties stipulated at trial to the first
and third elements, so the government had to prove only that Defendant knowingly
possessed a firearm.

        There was evidence presented at trial that Defendant had for some period of
time been staying at the home of Rachel Woodruff, where the firearm was found in
a bedroom Defendant shared with Ms. Woodruff. Although Defendant maintained
a separate apartment, the testimony revealed that he spent little time there, and few of
his belongings were found in that apartment. The Defendant was present at Ms.
Woodruff’s house when the search warrant was executed. The bedroom Defendant
shared with Ms. Woodruff was separated with female possessions on the north side
of the room and male items on the south side of the room. The firearm was discovered
between the mattress and box springs on the south side of the bedroom. Cash was
likewise located between the mattress and box springs in the apartment kept by
Defendant. Videotapes of a very personal nature involving the Defendant and Ms.
Woodruff as well as Defendant and another woman were found on the south side of

      4
       18 U.S.C. § 922(g)(1) makes it unlawful for any person “who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding
one year” to possess a firearm.

                                         -11-
the bedroom. The firearm which was discovered between the mattress and box
springs at the upper left corner of the bed, was accessible to a person lying on that side
of the bed. Defendant’s wallet and other personal items were found on the table next
to this part of the bed.

       Items consistent with drug trafficking were found in the bedroom and other
parts of the house. When the officers gained entry to execute the search warrant, Ms.
Woodruff was in the upstairs bathroom attempting to flush marijuana down the toilet,
and Defendant was at the top of the stairs between Ms. Woodruff and the officers.
Additionally, the Government presented evidence that the .40 caliber handgun had
been purchased in Muncie, Indiana, a city near Indianapolis, Indiana. Evidence was
also presented that Defendant’s brother and associate, John Wallace, had a driver’s
license with an Indianapolis address.

        Defendant points out that the .40 caliber handgun was in the possession of an
Indiana firearms dealer 280 days before being found under the mattress in
Marshalltown, and that the Government was unable to present evidence showing the
last time Wallace was in Indiana or Marshalltown. Defendant further submits that the
evidence was insufficient to convict because Defendant’s fingerprints were not found
on the handgun, there was no forensic evidence presented to link Defendant to the
handgun and no witness testified to seeing Defendant with the handgun. Constructive
possession of a firearm, however, may be established with circumstantial evidence.
See United States v. Byas, 581 F.3d 723 (8th Cir. 2009). Considering the evidence in
the light most favorable to the jury's verdict, we conclude that a reasonable jury could
have found Defendant guilty beyond a reasonable doubt based on the evidence
presented at trial.




                                          -12-
Correctness of Advisory Guideline Range and Reasonableness of the Sentence
       Defendant maintains that the district court erred in sentencing him by enhancing
the Base Offense Level pursuant to U.S.S.G. §2K2.1(b)(6). This Guideline provides
for a four-level enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” The Sentencing Guidelines
define “another felony offense” as “any federal, state, or local offense, other than the
explosive or firearms possession or trafficking offense, punishable by imprisonment
for a term exceeding one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” U.S.S.G. § 2K2.1 cmt. n. 14(C). We review de novo the
“legal conclusions a district court reaches in order to apply an enhancement for
purposes of calculating an advisory guidelines range ... while the factual findings
underpinning the enhancement are reviewed for clear error.” United States v. Septon,
557 F.3d 934, 936 (8th Cir. 2009).

       Defendant relies on United States v. Smith, 535 F.3d 883 (8th Cir. 2008), a case
where the U.S.S.G. §2K2.1(b)(6) enhancement was held to be not warranted, as
support for his position that the nexus was lacking between the handgun found under
the mattress and the trafficking of marijuana. The facts in Smith, however, are
significantly different from those in the case at hand. In Smith, a search of the
defendant’s home led to the discovery of a rifle, shotgun, shotgun barrel and
ammunition, as well as a methamphetamine pipe, a baggie containing
methamphetamine residue and marijuana. Smith admitted to using the rifle to kill
coyotes and Smith’s wife admitted owning the marijuana. At the time the district
court judge imposed the enhancement under U.S.S.G. §2K2.1(b)(6) he stated that it
was clear that Smith had been using marijuana and that the use of drugs in the
presence of firearms justified the enhancement. 535 F.3d at 884-85. The
enhancement was found not warranted in part because there was no evidence of a
temporal link between the firearms and a greater amount of methamphetamine than
just the residue. 535 F.3d at 886.



                                         -13-
       In United States v. Blankenship, 552 F.3d 703, 704-05 (8th Cir. 2009), a panel
of this Court explained as follows the change in the application of the U.S.S.G.
§2K2.1(b)(6) enhancement:

      Application Note 14(A) to § 2K2.1(b)(6) provides that the “in
      connection with” adjustment will apply “if the firearm ... facilitated, or
      had the potential of facilitating, another felony offense.” U.S.S.G. §
      2K2.1(b)(6) cmt. n.14(A). This application note was added in 2006.
      Prior to that time, the guidelines were silent on the definition of “in
      connection with,” and our case law routinely upheld the adjustment
      when weapons and drugs were in the same vicinity, regardless of
      whether the underlying drug offense was for possession or trafficking.
      e.g., United States v. Linson, 276 F.3d 1017, 1018-19 (8th Cir. 2002).
      However, with the addition of Application Note 14, the Sentencing
      Commission decided to make a distinction between the factual
      circumstances of when the other felony was a drug trafficking offense,
      or alternatively, a simple drug possession offense. If the felony is for
      drug trafficking, Application Note 14(B) mandates application of the
      adjustment if guns and drugs are in the same location. U.S.S.G. §
      2K2.1(b)(6) cmt. n.14(B). See United States v. Fuentes Torres, 529 F.3d
      825, 827 (8th Cir. 2008) (discussing the new application notes to
      U.S.S.G. § 2K2.1(b)(6) and noting that the Commission treated drug
      possession and trafficking offenses differently).

      If the underlying drug offense is for simple possession, the district court
      may still apply the adjustment, but only after making a finding that the
      firearm facilitated the drug offense. Id. at 827-28 n. 2 (holding that when
      the “in connection with” offense is a drug possession offense, the district
      court “must make the ‘in connection with’ finding, applying the
      ‘facilitate’ standard” from application note 14(A) to guideline §
      2K2.1(b)(6)) (emphasis added). In other words, when the defendant
      subject to a 2K2.1(b)(6) adjustment possesses a “user” amount of drugs
      and is not a trafficker, instead of automatically applying the adjustment
      when both drugs and weapons are involved in the offense, the district
      court must affirmatively make a finding that the weapon or weapons
      facilitated the drug offense before applying the adjustment.


                                         -14-
      The evidence in the case at hand does not show that Defendant possessed only
a “user” amount of drugs. Instead, the evidence shows that Defendant was in
possession of a large amount of marijuana, packaging material and scales. The
evidence presented at trial supports a finding that Defendant was a trafficker in drugs.
The district court at the sentencing hearing announced and explained his finding that
the handgun was possessed in connection with the distribution of marijuana. The
factual findings of the district court were not clearly erroneous and the U.S.S.G.
§2K2.1(b)(6) enhancement was warranted.

       Defendant also argues that he was entitled to a downward departure pursuant
to U.S.S.G. § 4A1.3(b)(1) because a criminal history category of III over-represents
his risk of recidivism. We have no authority, however, to review the district court's
denial of Defendant’s request for a downward departure because Defendant does not
argue that the district court had an unconstitutional motive in denying his request and
because the district court recognized that it had the authority to depart downward. See
United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009).

     Defendant also contends that the district court, in declining to sentence
Defendant below the advisory guidelines, did not properly apply the factors in 18
U.S.C. § 3553(a).5 Defendant contends that the district court failed to properly


      5
        18 U.S.C. § 3553(a) provides:
   The court shall impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this subsection. The court, in
determining the particular sentence to be imposed, shall consider--
  (1) the nature and circumstances of the offense and the history and characteristics
  of the defendant;
  (2) the need for the sentence imposed--
       (A) to reflect the seriousness of the offense, to promote respect for the law, and
       to provide just punishment for the offense;
       (B) to afford adequate deterrence to criminal conduct;
       (C) to protect the public from further crimes of the defendant; and

                                          -15-
consider: 1. that Defendant had a new-born child who will suffer from Defendant’s
incarceration; 2. that Defendant grew up without a father during his teenage years;
3. that Defendant benefitted from a substance abuse program in 2007; 4. that

       (D) to provide the defendant with needed educational or vocational training,
       medical care, or other correctional treatment in the most effective manner;
 (3) the kinds of sentences available;
 (4) the kinds of sentence and the sentencing range established for--
        (A) the applicable category of offense committed by the applicable category
         of defendant as set forth in the guidelines--
          (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of
         title 28, United States Code, subject to any amendments made to such
         guidelines by act of Congress (regardless of whether such amendments have
          yet to be incorporated by the Sentencing Commission into amendments
         issued under section 994(p) of title 28); and
          (ii) that, except as provided in section 3742(g), are in effect on the date the
          defendant is sentenced; or
      (B) in the case of a violation of probation or supervised release, the applicable
       guidelines or policy statements issued by the Sentencing Commission pursuant
       to section 994(a)(3) of title 28, United States Code, taking into account any
       amendments made to such guidelines or policy statements by act of Congress
       (regardless of whether such amendments have yet to be incorporated by the
       Sentencing Commission into amendments issued under section 994(p) of title
       28);
 (5) any pertinent policy statement--
       (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title
       28, United States Code, subject to any amendments made to such policy
       statement by act of Congress (regardless of whether such amendments have yet
       to be incorporated by the Sentencing Commission into amendments issued
       under section 994(p) of title 28); and
       (B) that, except as provided in section 3742(g), is in effect on the date the
       defendant is sentenced.
 (6) the need to avoid unwarranted sentence disparities among defendants with
 similar records who have been found guilty of similar conduct; and
 (7) the need to provide restitution to any victims of the offense.



                                         -16-
Defendant had a good work history and was supported by his most recent employer;
5. that Defendant displayed good conduct while on release pending disposition of this
case; and 6. that Defendant has demonstrated that he will not commit further offenses.

       Section 3553 requires that a sentence be “not greater than necessary.” In
addition, in Gall v. United States the Supreme Court emphasized the requirement that
“‘the sentencing judge consider every convicted person as an individual and every
case as a unique study in the human failings that sometimes mitigate, sometimes
magnify, the crime and punishment to ensue.’” 552 U.S. 38, 52, 128 S. Ct. 586, 598
(2007)(quoting Koon v. United States, 518 U.S. 81, 113 (1996)). Gall sets forth the
procedure the district court should follow in sentencing. After correctly calculating
the advisory Guidelines range and “giving both parties an opportunity to argue for
whatever sentence they deem appropriate, the district judge should then consider all
of the § 3553(a) factors to determine whether they support the sentence requested by
a party.” 552 U.S. at 49-50. The district court “must make an individualized
assessment based on the facts presented, ... [and] must adequately explain the chosen
sentence to allow for meaningful appellate review.” Id. at 50. In explaining the
chosen sentence and analyzing the relevant § 3553(a) factors, “a district court is not
required to provide ‘a full opinion in every case,’ but must ‘set forth enough to satisfy
the appellate court that he has considered the parties' arguments and has a reasoned
basis for exercising his own legal decision making authority.’” United States v.
Robinson, 516 F.3d 716, 718 (8th Cir. 2008) (quoting Rita v. United States, 551 U.S.
338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed.2d 203 (2007)). If a district court judge’s
discretionary decision in a case accords with the sentence the Sentencing Commission
deems appropriate “in the mine run of cases,” it is likely that the sentence is
reasonable. United States v. Harris, 493 F.3d 928, 932 (8th Cir. 2007).

      In the case at hand the district court followed the proper sentencing procedure.
The sentencing transcript establishes that the district court thoroughly considered the
3553(a) factors and was aware of his ability to vary from the Sentencing Guidelines

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but chose not to for reasons carefully explained on the record. Nothing in the record
persuades us that the district court arrived at an unreasonable sentence in Defendant’s
case.

                                         ***
      For the reasons set forth in this opinion, the judgment of the district court is
affirmed.
                            ______________________




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