United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2898
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                 Chiquita Tyler, also known as Chiquita Robinson

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: April 15, 2016
                               Filed: June 17, 2016
                                  [Unpublished]
                                 ____________

Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

       Appellant Chiquita Tyler pleaded guilty to one count of making a false claim
to a government department or agency, in violation of 18 U.S.C. § 287, and one count
of knowingly using the personal identification information of others without consent,
in violation of 18 U.S.C. § 1028(a)(7). The district court1 sentenced Tyler to a term
of 84 months’ imprisonment. Tyler appeals her sentence, arguing that the
Government engaged in prosecutorial misconduct by suggesting at Tyler’s sentencing
hearing that the district court focus on Tyler’s advisory sentencing guidelines range
rather than the sentencing factors outlined in 18 U.S.C. § 3553(a). We affirm.

       Between February 2010 and February 2011, Tyler filed approximately seventy
fraudulent income tax returns. These returns contained false wage and employment
information as well as the personal information of friends and family members, which
Tyler obtained by posing as a tax preparer. Through these fraudulent filings, Tyler
directed the Internal Revenue Service (“IRS”) to pay her more than $450,000 in the
form of pre-paid debit cards delivered to her address. Tyler had collected over
$340,000 through these fraudulent filings when the IRS discovered and terminated
her scheme.

       A grand jury indicted Tyler on ten counts of making a false claim to a
government department or agency, in violation of 18 U.S.C. § 287, and eight counts
of knowingly using the personal-identification information of others without consent,
in violation of 18 U.S.C. § 1028(a)(7). Tyler entered into a plea agreement in which
she pleaded guilty to one count under each statute. In exchange, the Government
agreed to move to dismiss the remaining sixteen counts. By signing the plea
agreement, Tyler agreed to forfeit her right to appeal her sentence based on any claim
other than ineffective assistance of counsel, prosecutorial misconduct, or an unlawful
sentence imposed in excess of the statutory maximum.

    At her sentencing hearing, Tyler requested that the district court vary
downward from the 46-57 month sentencing range recommended by the guidelines


      1
        The Honorable David Gregory Keys, Chief Judge, United States District
Court for the Western District of Missouri.

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and instead impose a sentence of probation. In support of this request, Tyler cited
primarily the consequences that an extended prison sentence would have on her
children and husband. The Government opposed such a variance, arguing that the
nature of Tyler’s offense and her prior criminal history should outweigh any collateral
consequences of her incarceration. In light of these factors, the Government
suggested a sentence of 52 months’ imprisonment.

       The district court sentenced Tyler to concurrent sentences of 57 months’
imprisonment for her violation of § 287 and 84 months’ imprisonment for her
violation of § 1028(a)(7). The court cited the prolonged duration of the crime, the
sophistication of the crime, the large number of victims, and Tyler’s criminal history
as the basis for its upward variance.

       In appealing her sentence, Tyler claims that the Government engaged in
prosecutorial misconduct during its argument at Tyler’s sentencing hearing. In order
to prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecution’s conduct was improper and that this improper conduct prejudicially
affected the defendant’s substantial rights. United States v. Wilkens, 

,
361 (8th Cir. 2014).

       The record reveals that Tyler cannot prevail on the first prong of this test.
Tyler claims that the Government “suggested that the court focus primarily or
exclusively on the guideline range” and “discouraged the court from considering
§ 3553 factors.” Even if such statements could constitute prosecutorial misconduct,
however, the sentencing transcript shows that the Government did no more than argue
that certain factors, such as the nature of Tyler’s offense and her criminal history,
outweighed the potential impact that a period of incarceration would have on Tyler’s
family. Furthermore, when recommending a within-guidelines sentence of 52
months’ imprisonment, the Government explained that it had based this
recommendation on “the nature and circumstances of the offense and the history and

                                         -3-
characteristics of the defendant” as well as the need “to provide adequate deterrence
for criminal conduct and to protect the public.” Rather than urge the district court to
ignore the § 3553 factors, therefore, the Government specifically requested that the
court uphold its duty to take those factors into account when sentencing Tyler. Given
that “[t]he district court has wide latitude to weigh the § 3553(a) factors in each case
and assign some factors greater weight than others,” we conclude that the
Government’s argument regarding how best to weigh those factors did not constitute
prosecutorial misconduct. See United States v. Bridges, 

, 379 (8th Cir.
2009).

      Accordingly, we affirm the judgment of the district court.

                        ______________________________




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