United States v. Darryl Walker

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3721
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Darryl Walker, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 6, 2009
Filed: March 17, 2009
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Before RILEY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Darryl Walker appeals the sentence the district court1 imposed after he pled
guilty to a firearm offense. On appeal, Walker seeks a remand for resentencing in
light of the Supreme Court’s decisions in Kimbrough v. United States, 128 S. Ct. 558
(2007), and Gall v. United States, 128 S. Ct. 586 (2007), both decided after his
sentencing. We decline to remand for resentencing, and we affirm.
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
We find nothing in Kimbrough to warrant a remand for resentencing. See
Kimbrough, 128 S. Ct. at 564 (holding that cocaine Guidelines, like all other
Guidelines, are advisory only); United States v. Roberson, 517 F.3d 990, 995 (8th Cir.
2008) (Kimbrough held that sentencing court did not abuse its discretion by
considering disparity between crack and powder cocaine sentences). Likewise, we
conclude that a remand under Gall is not required because there is no indication in the
record that the district court applied an “extraordinary circumstances” standard. See
Gall, 128 S. Ct. at 594-95 (rejecting appellate court’s requirement of extraordinary
circumstances to support extraordinary variance, but allowing court to take degree of
variance into account and consider extent of deviation from Guidelines).
We also conclude that Walker’s sentence is not substantively unreasonable. See
United States v. Phelps, 536 F.3d 862, 869 (8th Cir. 2008) (defendant does not forfeit
attack on substantive reasonableness of sentence by failing to object in district court;
substantive reasonableness of sentence is reviewed for abuse of discretion), cert.
denied, 2009 WL 177236 (U.S. Feb. 23, 2009); United States v. Long Soldier, 431
F.3d 1120, 1123 (8th Cir. 2005) (abuse of discretion 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 in weighing factors).
The judgment of the district court is affirmed.
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