United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3471
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Northern
                                        * District of Iowa.
Travis Eugene Kicklighter,              *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: May 12, 2005
                                Filed: June 30, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, LAY, and BENTON, Circuit Judges.
                         ___________

BENTON, Circuit Judge.

      The United States appeals, arguing the district court1 abused its discretion in
determining the sentence of Travis Eugene Kicklighter. Jurisdiction being proper
under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, this court affirms.

       Kicklighter pleaded guilty to one count of conspiracy to manufacture and
distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii),


      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
841(b)(1)(B)(viii), 846. Under the United States Sentencing Guidelines, Kicklighter
faced a sentencing range of 188 to 235 months. The district court found the
guidelines unconstitutional under Blakely v. Washington, 

(2004).
The court sentenced Kicklighter to the statutory-minimum 120 months in prison, with
an alternative 188-month guidelines sentence. While this appeal was pending, the
Supreme Court held that district courts, while not bound by the guidelines, must
consider and consult them when sentencing. See United States v. Booker, 

, 756-57, 767 (2005).

       The government argues that the district court did not properly take into account
the guidelines in imposing the 120-month sentence. See id.; United States v. Barnett,

, at *3-4 (8th Cir. May 31, 2005); United States v. Mashek, 

, 1016 n.4 (8th Cir. 2005); United States v. Haack, 

, 1002-03
(8th Cir. 2005). It particularly invokes Barnett, where the district court "appears not
to have considered the Guidelines at all . . . ." See Barnett, 

, at *3.

        The government cites the "Statement of Reasons" attachment to the Judgment
in a Criminal Case, form AO 245B. On the first page of the statement, the court
indicates the appropriate guidelines range. On the fourth and last page, under the
heading "SUPPLEMENTAL STATEMENT OF REASONS," subheading
"APPLICABILITY OF THE FEDERAL SENTENCING GUIDELINES," the court
checks the box indicating: "The court did not apply the federal sentencing guidelines
at all in this case and imposed a discretionary sentence."

      The checked box makes it appear that the district court did not apply the
guidelines "at all," which happened in the Barnett case. Here, however, the
sentencing transcript and judgment show that the district court did in fact consider
and consult the guidelines range.

      The court began the sentencing hearing:

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             THE COURT: . . . In this case if you challenge the
      constitutionality of the guidelines, I would give a sentence and then an
      alternative guideline sentence within the guideline range, and they
      would overlap. And it's largely due to your client's criminal history.
             MR. FLANNERY: Excuse me?
             THE COURT: I said it's largely due to your – he's got a horrible
      criminal history, and I'm not going to give the mandatory minimum to
      somebody with this kind of a criminal history. I'm also not going to give
      him life. I'm going to go with the guideline range. So in a sense it
      doesn't really make a whole lot of difference unless – and here's the one
      caveat – unless I was persuaded by your arguments or an allocution that
      188 months is too severe a sentence. It's not that I have any need to give
      an overlapping sentence, and I often don't when I do alternative
      sentences. I'm just saying based on everything I read in the presentence
      report, 188-month sentence seems like a pretty adequate sentence in this
      case given a criminal history of 16 points.

The court next holds the sentencing guidelines unconstitutional under the Blakely
rationale. Kicklighter calls his father to testify, then speaks on his own behalf. Both
detail his last two years off drugs, holding a job, and supporting a family. The court
then pronounces the sentence, stating its reasons for variance from the guidelines:

             THE COURT: I was very impressed by what you had to say to
      me. I think in your own way you have a lot of insight into your
      problems, and I think you have made huge changes in your life, and I
      was very impressed by you father's testimony too.
             Having declared the United States Sentencing Guidelines
      unconstitutional in this case, I can sentence you anywhere between the
      ten-year mandatory minimum which is the lowest I can go and the
      statutory maximum sentence which is life in prison.
             I'm going to sentence you to the mandatory minimum sentence of
      120 months in this case. I came out on the bench thinking I'd sentence
      you to the 188 bottom of the guideline range, but after hearing what you
      had to say and after hearing your father's testimony, I'm convinced that
      in the last two years – and you gotta start somewhere. But in the last
                                         -3-
      two years you've made a huge effort to turn your life around. It hasn't
      been easy, but you've showed a lot of persistence in doing it. You made
      enormous progress, more progress than I normally see.
            I've now sent – you know, I've now sent over 1,600 people to
      prison in the 10 years I've been a United States District Court judge.
      And you hear a lot of baloney from people you sentence, and you don't
      always know who's telling you the truth and who isn't. I like to give
      everybody the benefit of the doubt. I was very impressed by what you
      had to say. I think you're a poster child for what drugs do to people.
      And you're off them, and you're turning your life around.
            So I think based on all of the factors in Title 18, section
      3553(e)(1) through (7), in the exercise of my discretion, a 120-month
      sentence is the appropriate sentence in this case.[2]
            I am going to go ahead and make an alternative sentence under the
      United States Sentencing Guidelines. If the United States Sentencing
      Guidelines are constitutional, I would be looking at a guideline range of
      188 to 235 months, and I would sentence you to the bottom of the
      guideline range of 188 months, but that's my alternative sentence
      because I've held the guidelines unconstitutional. So your actual
      sentence is a 120-month sentence.

In light of the sentencing transcript, as reflected in the judgment, this court holds that
the district court considered and consulted the guidelines. See 

, 767; 18 U.S.C. § 3553(a)(4)(A).

       In its letter under Fed. R. App. P. 28(j), the government comments that the
Statement of Reasons does not contain adequate written reasons for the imposition
of the sentence outside the guidelines range. See 18 U.S.C. § 3553(c)(2); 

n.4. First, an appellant cannot raise arguments for the first time in
a Rule 28(j) letter. See United States v. Huber, 

, 1064 (8th Cir. 2005).
In any event, a remand is not required if this court determines that the district court


      2
       The transcript shows "section 3553(e)(1) through (7)."
                                           -4-
made a detailed explanation, and that the sentence is not unreasonable. See 18 U.S.C.
§ 3742(f)(3).

       This court reviews for unreasonableness, guided by the factors in 18 U.S.C. §
3553(a). 

. See also United States v. Hadash, 

, 1082 (8th Cir. 2005). This court reverses if the district court abused its
discretion by imposing an unreasonable sentence. United States v. Yahnke, 

, 826 (8th Cir. 2005). "This examination includes whether the district court's
decision to grant a § 3553(a) variance from the appropriate guidelines range is
reasonable, and whether the extent of any § 3553(a) variance or guidelines departure
is reasonable." 

(8th Cir. 2005).

       The government objects that because there is no Sixth Amendment violation,
and the guidelines range is 188 to 235 months, a sentence of 120 months – 36 percent
less than the guidelines range – is unreasonable. It cites Haack, where this court
stated that "reasonableness as a constraint on a district court's discretion to depart
downward infers a limited range of choice." 

. The variance
here is within that range of choice.

       Consulting the guidelines, the district court considered a sentence at the bottom
of the guidelines range (188 months). See 18 U.S.C. § 3553(a)(4)(A). After
testimony by Kicklighter and his father, the court imposed a 120-month sentence.
Based on the sentencing transcript and resulting judgment, this court is satisfied that
10 years in prison reflects "the nature and circumstances of the offense and the history
and characteristics of the defendant," deters criminal conduct, protects the public, and
considers the other factors in 18 U.S.C. § 3553(a). Kicklighter’s 120-month sentence
is not unreasonable.

      The sentence is affirmed.
                       _____________________________
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