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The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3637

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri. 

David Marron-Garcia, *

*

Appellant. * 

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Submitted: October 13, 2008 

Filed: February 26, 2009

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Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

David Marron-Garcia pled guilty to unlawfully reentering the United States

after he was previously deported for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). Under the advisory sentencing guidelines, the district court

correctly calculated a guideline range of 37 to 46 months’ imprisonment, based on an

offense level of 21 and a criminal history category of I. On November 14, 2007, the

district court1

 denied Marron-Garcia’s request for a downward variance and sentenced
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him to 37 months’ imprisonment, at the bottom of the advisory range. Marron-Garcia

appeals, arguing that he should be resentenced in light of the Supreme Court’s

intervening decision in Gall v. United States, 128 S. Ct. 586 (2007). We affirm.

Prior to Gall, this circuit and others had applied a form of “proportionality

review” to non-guideline sentences. Our cases required that the justification for a

variance be “proportional to the extent of the difference between the advisory range

and the sentence imposed.” United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006)

(internal quotations omitted), rev’d, 128 S. Ct. 586 (2007). “[T]he farther the district

court varies from the presumptively reasonable guidelines range,” we said, “the more

compelling the justification based on the [18 U.S.C.] § 3553(a) factors must be.”

United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006). This followed, we

thought, from the Supreme Court’s explanation that appellate review for

“reasonableness” would “continue to move sentencing in Congress’ preferred

direction, helping to avoid excessive sentencing disparities while maintaining

flexibility sufficient to individualize sentences where necessary.” United States v.

Booker, 543 U.S. 220, 264-65 (2005). In Gall, however, the Supreme Court held that

an appellate rule requiring “proportional” justifications for variances from the

advisory guideline range is inconsistent with Booker. 128 S. Ct. at 594. 

Marron-Garcia argues that Gall’s rejection of “proportionality review” entitles

him to resentencing. He contends that because Gall had not been decided at the time

of his sentencing, the district court did not appreciate the extent of its discretion to

impose a sentence below the advisory guideline range, and that a remand is required.

We disagree.

We have observed that “[o]ne may question whether the standard articulated in

this court’s pre-Gall proportionality review was substantively different from the

Supreme Court’s direction to district courts in Gall that ‘a major departure should be

supported by a more significant justification than a minor one.’” United States v. Lee,
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No. 07-3738, 2009 WL 48222, at *3 (8th Cir. Jan. 9, 2009) (quoting Gall, 128 S. Ct.

at 597). But accepting that Gall altered the legal framework in this circuit, id., the

change is immaterial to this case. Our pre-Gall cases focused on whether major

variances were supported by proportional justifications. One formulation asked

whether an “extraordinary variance” was supported by “comparably extraordinary

circumstances.” United States v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006),

vacated as moot, 551 U.S. 87 (2007). Gall rejected “an appellate rule that requires

‘extraordinary’ circumstances to justify a sentence outside the Guidelines range,” 128

S. Ct. at 595, but this court’s rule did not require “extraordinary” circumstances to

justify every non-guideline sentence. Lee, 2009 WL 48222, at *3. Under this court’s

pre-Gall legal framework, district courts had “less discretion to make a major variance

than they now enjoy,” id., but they had ample discretion to make a minor variance.

Here, the district court imposed a sentence of 37 months’ imprisonment, at the

bottom of the advisory guideline range. Nothing in the record suggests that the

district court thought “extraordinary” circumstances were required to justify even a

modest variance. Nor is there any indication that the district court considered

sentences outside the advisory range presumptively unreasonable. That the district

court was not persuaded to make any variance at all shows that it believed 37 months

was the appropriate sentence under § 3553(a). Because nothing in our pre-Gall cases

impermissibly constrained the district court’s discretion to grant at least a minor

variance based on § 3553(a), and because nothing in the record suggests that the

district court thought otherwise, there is no basis to conclude that the district court’s

approach conflicted with Gall. See United States v. Rodriguez-Rodriguez, 530 F.3d

381, 388-89 (5th Cir. 2008) (per curiam).

The judgment of the district court is affirmed.

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