United States v. Darryl Walker

314 F. App'x 909

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 17, 2009
• Docket: 07-3721
• Status: Unpublished

Opinion

PER CURIAM.

Darryl Walker appeals the sentence the district court 1 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, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), both decided after his sentencing. We decline to remand for resentencing, and we affirm.

We find nothing in Kimbrough to warrant a remand for resentencing. See Kim-brough, 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 vari- anee 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, 586 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, — U.S. -, 129 S.Ct. 1390, — L.Ed.2d. - (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.

1 . The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas.