United States v. Brian Hemphill , 240 F. App'x 159 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1093
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Brian Hemphill, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 5, 2007
Filed: September 10, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Brian Hemphill challenges the 210-month prison sentence imposed by the
district court1 following his guilty plea to distributing approximately 1.22 grams of a
substance containing cocaine base within 1,000 feet of a protected location, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 860; and to possessing with intent
to distribute approximately 4.91 grams of a substance containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
Hemphill was sentenced as a career offender under U.S.S.G. § 4B1.1. His
advisory Guidelines range was 210-262 months in prison. On appeal, Hemphill
asserts that his sentence is unreasonable and that the district court should have varied
downward in light of (1) his young age at the time he committed the offenses
underlying his career-offender status, (2) his minor role in those predicate offenses,
and (3) the small amount of drugs involved in his current offenses.
Upon careful review, we conclude that the district court did not abuse its
discretion in sentencing Hemphill to the low end of his advisory Guidelines range.
See Rita v. United States, 127 S. Ct. 2456, 2462 (2007) (presumption of
reasonableness applies to sentence imposed within advisory Guidelines range); United
States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005) (sentence is reviewed for
abuse of discretion, which occurs if court fails to consider relevant factor that should
have received significant weight, gives significant weight to improper or irrelevant
factor, or considers only appropriate factors but commits clear error of judgment); cf.
United States v. Beal, 463 F.3d 834, 837 (8th Cir.) (reversing and remanding for
resentencing where district court based substantial downward variance on relative lack
of severity of career-offender predicate offenses; explaining, “While we recognize that
not all career offenders have the same severity of criminal conduct in their
backgrounds, we also must acknowledge that Congress made the decision not to
differentiate between levels of career offenders.”), petition for cert. filed, (U.S. Dec.
21, 2006) (No. 06-8498); United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.
2006) (substantial downward variance was unreasonable because, inter alia, small
amount of crack cocaine was taken into account in determining Guidelines range),
vacated as moot, 127 S. Ct. 2245 (2007); United States v. Shoupe, 929 F.2d 116, 120
(3d Cir. 1991) (bare fact that defendant was 18 years old when he committed predicate
offenses is not extraordinary and does not warrant downward departure).
Accordingly, the judgment is affirmed.
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