United States v. Daniel Kihn ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2283
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United States of America
Plaintiff - Appellee
v.
Daniel Rogers Kihn
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 10, 2023
Filed: April 26, 2023
[Unpublished]
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Before GRUENDER, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Daniel Kihn pleaded guilty to conspiracy to distribute methamphetamine, see
21 U.S.C. §§ 841(a)(1), 846, and conspiracy to commit money laundering, see 18
U.S.C. § 1956(a)(1), (h). With a total offense level of 43 and a criminal-history
category of VI, Kihn’s advisory sentencing guidelines range was life imprisonment.
Citing his numerous cardiac and respiratory issues, Kihn urged the district court1 to
depart downward under U.S.S.G. § 5H1.4, which permits a downward departure
based on a defendant’s “extraordinary physical impairment.” The district court
denied Kihn’s request but nonetheless varied downward and sentenced him to 300
months’ imprisonment. Noting the seriousness of Kihn’s offenses, the court
clarified that it would have imposed the same sentence even if it had granted Kihn’s
request for a downward departure. Kihn appeals, arguing that the district court erred
in denying his request.
Kihn contends that we may review the district court’s decision not to depart
downward under § 5H1.4. But see United States v. McCoy, 847 F.3d 601, 607 (8th
Cir. 2017) (explaining that we “generally will not review the district court’s refusal
to grant a downward departure unless the district court had an unconstitutional
motive or erroneously thought that it was without authority to grant the departure”
(internal quotation marks omitted)). Even assuming that we may review the
decision, any error would be harmless. See Fed. R. Crim. P. 52(a). “Incorrect
application of the Guidelines is harmless error where the district court specifies the
resolution of a particular issue did not affect the ultimate determination of a
sentence.” United States v. Marin, 31 F.4th 1049, 1056 (8th Cir. 2022). That
happened here: though the district court denied Kihn’s request for a downward
departure, the court varied downward from life imprisonment to 300 months and
stated that it would have imposed the same sentence even if it had granted Kihn’s
request for a downward departure.
Accordingly, we affirm Kihn’s sentence.
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1
The Honorable Julie A. Robinson, United States District Judge for the
District of Kansas, sitting by designation.
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