United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-3378
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Valen Ray Gilmer
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: October 18, 2021
Filed: December 14, 2021
[Unpublished]
____________
Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
____________
PER CURIAM.
Valen Ray Gilmer pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At Gilmer’s first sentencing hearing, the
government asked the district court to vary upward from the 37- to 46-month
sentencing range under the U.S. Sentencing Guidelines (Guidelines). After indicating
that it was considering sentencing him above the Guidelines range, the district court
continued the hearing to allow Gilmer time to respond. At the second hearing, the
district court1 imposed the sentence the government requested: 72 months’
imprisonment. We affirm.
Gilmer argues that the district court failed to adequately explain its reasoning
for varying upward and that it thus imposed a procedurally unreasonable sentence.
Because Gilmer did not object to the adequacy of the district court’s explanation at
sentencing, we review only for plain error. See United States v. Callaway, 762 F.3d
754, 759 (8th Cir. 2014). The court twice stated—once each in the initial and final
hearings—that it had reviewed and considered the appropriate 18 U.S.C. § 3553(a)
factors in determining Gilmer’s sentence. See United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (quoting United States v. Walking Eagle, 553 F.3d 654, 659
(8th Cir. 2009)) (A district court need not mechanically list each relevant factor;
“[r]ather, it simply must be clear from the record that the district court actually
considered the § 3553(a) factors in determining the sentence.”). The court further
explained that it had considered the parties’ statements at sentencing, which included
the government’s argument that an upward variance was warranted because of
Gilmer’s extensive time on probation, his regular use of marijuana, and his admission
that he had driven past a rival gang member’s house wielding an allegedly fake
firearm and had worn body armor during an encounter with law enforcement. In light
of those arguments, the district court determined that an upward variance was “not
only justified[,] but needed” to protect the public from Gilmer. Sentencing Tr. 12.
We are satisfied from the district court’s explanation that it “ha[d] considered the
parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority” when it sentenced Gilmer. See United States v.
DeMarrias, 895 F.3d 570, 573 (8th Cir. 2018) (third alteration in original) (quoting
United States v. Moore, 565 F.3d 435, 437 (8th Cir. 2009)). We thus conclude that
the district court did not plainly err in explaining Gilmer’s sentence.
1
The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
-2-
Gilmer next argues that the district court’s 72-month sentence is substantively
unreasonable. Because Gilmer objected at sentencing to the substance of his
sentence, we review for abuse of discretion. See United States v. Bertucci, 794 F.3d
925, 927 (8th Cir. 2015). Gilmer argues that the reasons the district court stated for
the variance—Gilmer’s probation status, his gang affiliation, and the number and
capacity of the firearms he possessed—had been contemplated by the Guidelines
range and could not also constitute the basis for an upward variance. District courts
are not forbidden, however, “from determining that the weight the Guidelines
assigned to a particular factor was insufficient” and varying upward, so long as they
take care to avoid undermining sentencing uniformity. United States v. Thorne, 896
F.3d 861, 865 (8th Cir. 2018) (discussing United States v. Martinez, 821 F.3d 984
(8th Cir. 2016)). Further, the district court had heard and considered factors not
accounted for by the Guidelines, both aggravating (Gilmer’s pre-sentencing daily use
of marijuana, as well as his unindicted possession of a .40 caliber handgun) and
mitigating (his mental health history and his commitment to reform). Because Gilmer
has not shown that the district court failed to consider a relevant factor, gave
significant weight to an improper or irrelevant factor, or committed a clear error of
judgment in weighing the proper factors, we conclude that the district court did not
abuse its discretion by varying upward. See United States v. David, 682 F.3d 1074,
1077 (8th Cir. 2012).
The judgment is affirmed.
______________________________
-3-