United States v. Darryl Walker, No. 07-3721 (8th Cir. 2009)
Annotate this CaseCourt Description: Criminal case - Sentencing. Neither Gall nor Kimbrough compelled a remand for resentencing; sentence was not unreasonable.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-3721 ___________ United States of America, Appellee, v. Darryl Walker, Appellant. * * * Appeal from the United States * District Court for the * Eastern District of Arkansas. * * [UNPUBLISHED] * * ___________ Submitted: March 6, 2009 Filed: March 17, 2009 ___________ Before RILEY, SMITH, and BENTON, Circuit Judges. ___________ 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. ______________________________ -2-
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