                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1909
                        ___________________________

                            United States of America

                                       Plaintiff - Appellee

                                        v.

                                Mykael Robertson

                                     Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                            Submitted: April 13, 2020
                              Filed: May 11, 2020
                                 [Unpublished]
                                 ____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
                          ____________

PER CURIAM.

      In 2018, Mykael Robertson and a compatriot fired multiple shots at rival gang
members near a playground with children present in Cedar Rapids, Iowa. Robertson
pled guilty to unlawfully possessing ammunition in violation of 18 U.S.C. §§
922(g)(9) and 924(a)(2).     The presentence investigation report (“PSIR”)
recommended an offense level of 33 under U.S.S.G. § 2A2.1(a)(1) because “the
object of the offense would have constituted first degree murder.” The PSIR included
a recommendation for three levels downward for acceptance of responsibility and
timely notification of intent to change plea, resulting in a total offense level of 30.
Robertson was in criminal history category VI, which yielded a sentencing guideline
range of 168–210 months. As the statutory maximum sentence was less than the
applicable advisory guideline range, the sentencing range was adjusted to 120
months. See U.S.S.G. § 5G1.1(a).

      Robertson objected to the PSIR’s offense level and criminal history
calculations and requested a downward variance. After hearing evidence and taking
argument, the district court1 denied each of Robertson’s objections. He was
sentenced to a 120-month term of imprisonment.

       On appeal Robertson contends that the court erred in calculating his guideline
range and imposed a substantively unreasonable sentence. We first review a
challenge to a sentence for procedural error. United States v. Belfrey, 928 F.3d 746,
750 (8th Cir. 2019) (citing United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc)). An incorrect guideline calculation is a harmless error when the
district court would have imposed the same sentence even if the guideline range was
lower. United States v. Martinez, 821 F.3d 984, 988–89 (8th Cir. 2016). Once
assured there is no procedural error, our review considers the substantive
reasonableness of the sentence under an abuse-of-discretion standard. Belfrey, 928
F.3d at 750.

      We need not decide whether the district court erred in calculating Robertson’s
guideline range because any error would be harmless. The court expressly stated it


      1
       The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

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intended to exercise its discretion and impose the 120-month maximum sentence
because of the extreme danger Robertson created and continued to pose to the
community.

       Robertson next asserts his 120-month sentence is substantively unreasonable.
In this context a district court abuses its discretion when “it fails to consider a
relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or commits a clear error of judgment in weighing
the appropriate factors.” United States v. Luscombe, 950 F.3d 1021, 1031 (8th Cir.
2020). The court considered each of the 18 U.S.C. § 3553(a) factors and found no
mitigating factors in the defendant’s behavior, history, or characteristics. The court
specifically noted: “[Robertson’s] case [is] extremely aggravating, again, not only
because the defendant and his cohort attempted to murder two people, but discharged
firearms in a community, in an area that endangered the lives of many other people
in a completely reckless and irresponsible manner.” And, “[I]f this case was not
already a situation where the defendant is at the top of the statutory maximum
sentence, I would vary upward. I wish I could give a longer sentence.” The court’s
analysis did not fail to consider a relevant factor, give weight to an improper factor,
or commit a clear error of judgment in weighing the factors.

      For the foregoing reasons, we affirm.
                      ______________________________




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