United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 15-1262
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

            Tony Terrell Robinson

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 15-1994
     ___________________________

          United States of America

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

            Tanka James Tetzlaff

   lllllllllllllllllllll Defendant - Appellant
                   ____________

 Appeals from United States District Court
  for the District of Minnesota - St. Paul
              ____________
                            Submitted: February 8, 2016
                             Filed: February 19, 2016
                                  [Unpublished]
                                  ____________

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
                           ____________

PER CURIAM.

       Codefendants Tanka Tetzlaff and Tony Robinson challenge the sentences
imposed following their guilty pleas on two counts: conspiracy to defraud in
violation of 18 U.S.C. § 286, and aiding and abetting false claims in violation of 18
U.S.C. §§ 2 and 287. Each defendant raises separate and unique challenges on
appeal, as discussed herein, and we affirm both sentences.

I.    BACKGROUND

       While in custody at the Minnesota Correctional Facility, defendants Tetzlaff
and Robinson, and others, operated an extensive tax-fraud scheme through which
they filed false income tax returns and applied for tax refunds. Once investigators
uncovered the scheme, Tetzlaff and Robinson admitted their roles in it and explained
how it worked. Tetzlaff and Robinson both benefitted financially from the scheme.
In total, the men submitted over 500 tax returns, making over $830,000 in false
claims for tax refunds. Robinson was responsible for $834,467 in attempted loss and
$197,125 in actual loss; and Tetzlaff was jointly responsible for about $694,000 in
attempted loss and $165,800 in the actual loss amount.

       A twenty-one-count indictment was filed in the District of Minnesota charging
the men with conspiracy to defraud the United States by submitting false tax claims
to the IRS, and other false claims charges. Each pleaded guilty to two counts. The

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district court1 sentenced Tetzlaff to a term of imprisonment of eighty-eight months
and Robinson to a term of eighty-four months. The instant appeals ensued.

II.   DISCUSSION

       Robinson and Tetzlaff challenge their sentences claiming the district court
procedurally erred and, additionally, that the resulting sentences are substantively
unreasonable. Each argue the district court procedurally erred by failing to properly
consider the 18 U.S.C. § 3553(a) factors when it determined their sentences of
imprisonment. When this court reviews sentences, we must first ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, failing to consider the § 3553(a)
factors, calculating a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence. United States v. Bridges, 569 F.3d 374, 378
(8th Cir. 2009). Having thoroughly reviewed the sentencing transcript, we find the
district court's imposed sentences are procedurally sound. The district court
appropriately considered each defendant's argument in the court's § 3553(a)
considerations, appropriately analyzed the § 3553(a) factors, and, specifically as to
Robinson, analyzed his argument regarding a suggested departure as well.2


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
       Robinson contends for the first time on appeal that the district court erred by
calculating his sentence based upon an alleged mistaken presumption that Robinson
could be assigned to a prison with a Residential Drug Abuse Program. This argument
is without merit. A careful review of the transcript reveals that the district court did
not arrive at its sentence based on this mistaken presumption. The district court
expressed its (correct) understanding that regardless of its recommendations
regarding treatment, "it [was] not [the court's] decision to make." There was no error,
prejudicial or otherwise, on this issue. See United States v. Pirani, 406 F.3d 543, 552
(8th Cir. 2005) (en banc) (discussing plain error standard of review).

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       Both Robinson and Tetzlaff additionally assert that their bottom of the
Guidelines (Robinson), and below the Guidelines (Tetzlaff), sentences are
substantively unreasonable.3 "We review the reasonableness of the district court's
sentence under a deferential abuse-of-discretion standard." United States v. Ruelas-
Mendez, 556 F.3d 655, 657 (8th Cir. 2009). Upon careful review, we conclude that
neither sentence is unreasonable and find nothing in the record to suggest that the
court abused its discretion. United States v. Feemster, 572 F.3d 455, 460-61 (8th Cir.
2009) (en banc) (describing appellate review of sentencing decisions); United States
v. Dixon, 650 F.3d 1080, 1084 (8th Cir. 2011) (reiterating that if a sentence falls
within the advisory Guidelines range, it is presumed substantively reasonable on
appeal); United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009) (where district
court has varied downward, "it is nearly inconceivable that the court abused its
discretion in not varying downward still further").4


      3
        Robinson raises two additional claims on appeal, both of which we reject: (1)
an ineffective assistance of counsel claim, which he acknowledges is premature on
direct appeal, United States v. Pherigo, 327 F.3d 690, 696 (8th Cir. 2003) ("Claims
of ineffective assistance of counsel are properly raised in a post-conviction motion
under 28 U.S.C. § 2255 and not on direct appeal."); and (2) a claim that the district
court erred by not granting his motion for a downward departure based on
overstatement of his criminal history, which is unreviewable because the district court
recognized its authority to depart and there is no indication that the district court had
any unconstitutional motive in denying the request, United States v. Anderson, 570
F.3d 1025, 1034 (8th Cir. 2009).
      4
       Teztlaff also uniquely claims the district court failed to consider the "hard
time" he spent in Minnesota county jail, rather than in a prison, awaiting trial and
sentencing in this case, thus contributing to the unreasonableness of the ultimate
sentence imposed. He claims that "the difficulty of his time in custody while held
before sentencing constitute[d] a mitigating factor that should have been taken into
account" at sentencing. This argument is raised for the first time on appeal and is
thus reviewed for plain error. United States v. Ruiz-Salazar, 785 F.3d 1270, 1272
(8th Cir. 2015). Having carefully reviewed the sentencing colloquy, the district court
committed no error, plain or otherwise. The court appropriately analyzed and applied

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       Finally, Tetzlaff claims the district court violated the Double Jeopardy Clause
by considering his criminal history in determining his sentence; another matter he
raises for the first time on appeal. See United States v. Burnette, 518 F.3d 942, 946
(8th Cir. 2008) (noting that plain error review governs when the defendant fails to
object to procedural sentencing errors before the district court). As Tetzlaff concedes,
however, this argument runs counter to "a long line of caselaw." Considering a
defendant's prior criminal record in determining the appropriate sentence under the
Guidelines does not violate the Double Jeopardy Clause of the Fifth Amendment.
United States v. Thomas, 930 F.2d 12, 14 (8th Cir. 1991) (enhancement for criminal
history does not violate double jeopardy).

III.   CONCLUSION

       For the reasons stated herein, we affirm the district court as to both defendants.
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the § 3553(a) factors.

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