                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3186
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Robby Allen Krueger,                    *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: April 14, 2010
                                Filed: May 14, 2010
                                 ___________

Before LOKEN, BRIGHT, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

       Defendant Robby Allen Krueger pleaded guilty to possessing with intent to
distribute 500 grams or more of a mixture or substance containing a detectable amount
of methamphetamine, which contained fifty grams or more of actual
methamphetamine. 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). After granting Krueger
safety-valve relief, the district court1 sentenced him at the top of his advisory
Guidelines range of 135–168 months' imprisonment. Krueger appeals, alleging
procedural error in his sentencing. We affirm.

      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
       It is undisputed that Krueger had trafficked in different drugs and that the
marijuana equivalent of the assorted drugs attributable to him for sentencing purposes
was 256,022.10 kilograms of marijuana. See U.S. Sentencing Guidelines Manual
§ 2D1.1cmt. n.10(B). This quantity was several times the amount required to
determine a base offense level of thirty-eight pursuant to the drug quantity tables of
U.S.S.G. § 2D1.1(c). After applying other adjustments, Krueger's offense level was
thirty-five. The only contested issue at sentencing was whether Krueger had fully and
truthfully debriefed as required to be eligible for a two-level safety-valve reduction
pursuant to 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5).

       During a lengthy sentencing hearing as to this sole issue, the district court noted
that the impact of safety-valve relief upon Krueger's advisory Guidelines range would
be to shift the range from 168–210 months downward to 135–168 months. The court
indicated that the substantial drug quantity at issue would be the primary driver of any
sentence and that it was likely the court would be imposing a within-range, 168-month
sentence regardless of safety-valve relief.

       The district court then repeatedly assured Krueger's counsel that he would not
be deprived of any opportunity to make arguments or present evidence. In fact, in a
subsequent examination of a witness, counsel convinced the district court that Krueger
had fully and truthfully disclosed all pertinent knowledge as required for safety-valve
relief. Accordingly, the court found that the adjusted offense level was thirty-three
and that the advisory Guidelines range was 135–168 months' imprisonment.

       The court then carefully applied the factors of 18 U.S.C. § 3553(a), and
imposed the 168-month sentence. The court noted again that the large drug quantity
at issue was the predominate consideration in formulating a sentence in this case.

       Krueger appeals, arguing essentially that the district court's declaration of intent
prior to determination of the safety-valve issue amounted to a procedural error and an

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abuse of discretion. Embedded in Krueger's argument are the allegations that the
district court did not appreciate the scope of its discretion and failed to consider
relevant sentencing factors.

       The government has filed a motion to dismiss, alleging that an appeal waiver
precludes Krueger's appeal. We need not address the government's motion because
Krueger's arguments as to the merits are deficient on their face. The record in this
case makes it amply clear that the experienced sentencing judge was well-aware of the
scope of his discretion. In several cases post-Booker2 and post-Gall3, we have referred
approvingly to the district court practice of making a record of the fact that different
sentencing issues would not impact the ultimate determination of a sentence under 18
U.S.C. § 3553(a). See, e.g., United States v. Henson, 550 F.3d 739, 741 (8th Cir
.2008) ("We need not even venture an inference that the error had no effect on the
court's selection of the sentence; here, the district court answered that question
expressly, and it did so after taking into account the potential impact of the specific
error involved.") (internal citations omitted). That is not to say courts may ignore the
framework set forth clearly in Gall requiring an accurate determination of an advisory
range en route to the application of § 3553(a). Gall, 552 U.S. at 49 ("[A] district court
should begin all sentencing proceedings by correctly calculating the applicable
Guidelines range."). Rather, a sentencing court's acknowledgment that the resolution
of a contested issue would have little or no impact on sentencing simply informs our
court as to whether any possible error might be viewed as harmless. See United States
v. Jackson, 594 F.3d 1027, 1030 (8th Cir. 2010).

       Having carefully reviewed the sentencing transcript in this case, it is clear the
district court properly considered and applied the Guidelines and § 3553(a) and
committed no error. It was not an abuse of discretion for the court to prudently and

      2
       United States v. Booker, 543 U.S. 220 (2005).
      3
       Gall v. United States, 552 U.S. 38 (2007).

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openly announce that the safety-valve issue was of relatively little importance
compared to the drug quantity, the factor of overriding importance in this case.
Further, Krueger identifies nothing to overcome the presumption of reasonableness
that attaches to his within-range sentence. See United State v. Wilder, 597 F.3d 936,
945 (8th Cir. 2010).

     We affirm the judgment of the district court and deny the government's pending
motion to dismiss as moot.
                      ______________________________




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