                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 05-2995
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the District of
                                           *      South Dakota.
Jason Long Soldier, Sr.,                   *
                                           *
             Appellant.                    *

                                _________________

                            Submitted: November 14, 2005
                                Filed: December 23, 2005
                                ________________

Before MURPHY, McMILLIAN and GRUENDER, Circuit Judges.
                       ________________


GRUENDER, Circuit Judge.

        Appellant Jason Long Soldier, Sr. pled guilty to one count of making a false,
fictitious and fraudulent material statement and representation within the jurisdiction
of the United States Department of Agriculture (the “DOA”) in violation of 18 U.S.C.
§ 1001. The district court1 determined an advisory U.S. Sentencing Guidelines range



      1
         The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
of 0-6 months and imposed a sentence of 12 months’ imprisonment. Long Soldier
appeals his sentence. For the reasons discussed below, we affirm.

I.    Background

      Long Soldier was arrested after an investigation conducted by the Office of
Recoveries and Fraud Investigation for the South Dakota Department of Social
Services (the “SDDSS”) revealed that he made false written statements regarding his
household income and benefits and his residence address when applying to receive
food stamp assistance, a program within the jurisdiction of the DOA.

       After entering his guilty plea, Long Soldier was allowed to remain free subject
to the conditions of his bond, which included a requirement that Long Soldier not
consume alcohol. At a presentencing bond violation hearing, Long Soldier admitted
that he violated a term of his pretrial release by appearing intoxicated in public, and
his bond was revoked. At the sentencing hearing, the district court calculated the
advisory guidelines range as 0-6 months but noted the bond violation along with Long
Soldier’s lengthy criminal record, history of failing to comply with conditions of
probation and supervised release, unwillingness to gain employment, and chronic
substance abuse. Given these facts, the district court determined that the appropriate
sentence was 12 months’ imprisonment. The district court also ordered Long Soldier
to pay $2,982.00 in restitution to the SDDSS. Long Soldier appeals the sentence.

II.   Discussion

       Long Soldier argues that the district court erred as a matter of law by holding
that “there’s no such thing as an upward departure anymore with the Booker and
Fanfan cases.” We review the district court’s conclusions of law de novo. United
States v. Mashek, 406 F.3d 1012, 1016 (8th Cir. 2005). We have held that a district
court should consider and may apply appropriate departures when determining the


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advisory guidelines range following United States v. Booker, 543 U.S. 220 (2005).
United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005). However, the district
court’s comment was harmless error as to Long Soldier. Because the district court
apparently believed that departures under the guidelines had been abolished, it did not
attempt to effect one.2 The district court’s erroneous belief that it could not depart
upward did not deprive Long Soldier of any substantial–or even beneficial–right. He
was deprived merely of the opportunity to receive an upward departure and, perhaps,
a longer sentence. As such, any error is harmless pursuant to Fed. R. Crim. P. 52(a).

       Long Soldier next argues that the district court erred as a matter of law by
imposing his sentence above the guidelines range without providing him notice
pursuant to Fed. R. Crim. P. 32(h). Rule 32(h) provides that under certain
circumstances the district court must give notice to the parties that it is contemplating
a departure from the guidelines range. However, notice pursuant to Rule 32(h) is not
required when the adjustment to the sentence is effected by a variance, rather than by
a departure. United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005). Because
the district court effected only an upward variance, no Rule 32(h) notice was required.

      Long Soldier also claims that the district court erred by refusing to grant him
a two-level reduction in his offense level for acceptance of responsibility pursuant to
the U.S. Sentencing Guidelines Manual § 3E1.1(a). Whether the defendant accepted
responsibility is a factual question that depends largely on credibility assessments
made by the sentencing court. United States v. Rodamaker, 56 F.3d 898, 901 (8th Cir.
1995). This Court gives great deference to the district court’s denial of a request for
a reduction for acceptance of responsibility and reviews the decision for clear error.


      2
        The district court did, however, effect an upward variance. Although Long
Solider does not argue that the district court erred as a matter of law by making an
upward variance post-Booker, such an argument would have been meritless. United
States v. Shannon, 414 F.3d 921, 923 (8th Cir. 2005) (holding that, post-Booker, the
sentencing court may effect an upward variance).
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Id. The district court denied the § 3E1.1(a) reduction at sentencing, citing Long
Soldier’s bond violation, continued abuse of alcohol and consequent failure to gain
employment that would enable Long Soldier to pay restitution. Long Soldier argues
that these reasons were insufficient grounds for denying the reduction, given that
Long Soldier accepted responsibility by virtue of his guilty plea and the Government
acknowledged that he had demonstrated acceptance of responsibility.

       While the entry of a plea of guilty constitutes significant evidence of acceptance
of responsibility, this evidence still may be outweighed by conduct of the defendant
that is inconsistent with such acceptance. U.S.S.G. § 3E1.1, cmt. n.3 (2004). In
determining whether a defendant qualifies for an acceptance of responsibility
reduction, the district court may consider aspects of the defendant’s conduct beyond
the mere fact of his guilty plea. See id. § 3E1.1, cmt. n.1, n.3, n.4; United States v.
Martinez, 234 F.3d 1047, 1048 (8th Cir. 2000) (per curiam) (holding that the denial
of a § 3E1.1 reduction was proper where the defendant failed alcohol and drug tests
while under the supervision of a halfway house and absconded from the halfway
house prior to a bond revocation hearing). Given that Long Soldier violated his bond,
failed to seek treatment for his alcoholism, remained unemployed, and made no effort
to pay restitution to the SDDSS, the district court did not clearly err in refusing to
grant Long Soldier a reduction for acceptance of responsibility.

       Long Soldier also asserts a two-pronged challenge related to the reasonableness
of his sentence. He argues that the district court erred by failing to cite to 18 U.S.C.
§ 3553(a) in determining his sentence and that the resulting sentence was
unreasonable. First, we consider Long Soldier’s argument regarding the district
court’s failure to refer to § 3553(a). Long Soldier claims that because the district
court did not include “any reference to” § 3553(a) when pronouncing his sentence, the
district court “completely ignored” the § 3553(a) factors. Whether the district court
must refer specifically to § 3553(a) in determining a sentence is a question of law.
Long Soldier’s argument is misguided. The relevant inquiry is not whether the district

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court quoted or cited § 3553(a); it is whether the district court actually considered the
§ 3553(a) factors and whether “our review of these statutory factors leads us to
conclude that they support the reasonableness of the district court’s sentencing
decision.” United States v. May, 413 F.3d 841, 847 (8th Cir. 2005). Accordingly, the
district court did not err merely because “§ 3553(a)” was not specifically mentioned
when the district court pronounced the sentence.

       Second, we consider Long Soldier’s argument that his sentence is unreasonable.
Whether a sentence is reasonable in light of § 3553(a) is reviewed for abuse of
discretion. United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). A
sentencing court abuses its discretion if it fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.
2005). In the context of reviewing a sentence for reasonableness, a proper or relevant
factor is one listed under § 3553(a). See id. at 1002-03.

       The Haack test for reasonableness is satisfied in this case. The record does not
indicate that the district court failed to consider a relevant factor or, conversely, that
it considered an improper or irrelevant factor. Further, we find no clear error of
judgment in the district court’s weighing of the § 3553(a) factors. Rather, the district
court’s findings in support of the upward variance demonstrate that the sentence is
reasonable under § 3553(a). The district court noted Long Soldier’s long criminal
history, his record of noncompliance while previously on probation and supervised
release, his unwillingness to obtain employment, and his ongoing substance abuse
problem. See 18 U.S.C. § 3553(a)(1). Further, the court found that probation was not
an appropriate sentence because it would not be a deterrent. See id. § 3553(a)(2)(B)
and (3). The district court also considered the victim and ordered restitution to the
SDDSS. See id. § 3553(a)(7). Accordingly, the district court did not err by imposing
an unreasonable sentence.

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III.   Conclusion

       Accordingly, we affirm the sentence of the district court.
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