United States v. Robert S. Wilkinson

273 F. App'x 580

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 16, 2008
• Docket: 06-2866
• Status: Unpublished

Opinion

[UNPUBLISHED]

PER CURIAM.

Following our affirmance of Wilkinson’s sentence, United States v. Wilkinson, 225 Fed.Appx. 413 (8th Cir.2007), the United States Supreme Court vacated our judgment and remanded the case for reconsideration in light of Gall v. United States, -U.S.-, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Wilkinson v. United States, -U.S.-, 128 S.Ct. 1064, 169 L.Ed.2d 803 (2008).

Although we consider it to be a very close question, we conclude that, based upon the government’s and the district court’s comments at sentencing regarding the necessity of the existence of extraordinary circumstance as a prerequisite to a departure, the case should be remanded for resentencing in light of the Supreme Court’s disapproval of the restrictive views our court had expressed regarding a district court’s discretion to depart below recommended Guideline sentences.

Accordingly, the sentence is vacated, and the case is remanded to the district court for resentencing. We, of course, express no view regarding the sentence to be imposed.