United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-2126

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Hurley Wallace

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

 Submitted: January 8, 2018

 Filed: February 1, 2018 

[Unpublished]

____________

Before LOKEN, BEAM, and KELLY, Circuit Judges.

____________

PER CURIAM.

Hurley Wallace pleaded guilty to one count of being a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). In

doing so Wallace stipulated to a very limited factual recitation regarding his

possession of certain ammunition in February 2016 at the Grand-U-Buy located in the

City of St. Louis. The plea agreement also indicated that at the time of sentencing,
after the district court had determined the Guidelines range that applied in the case, 1

either side could ask for a sentence above or below that range. The presentence

investigation report (PSR) arrived at a suggested Guidelines range of forty-six to

fifty-seven months, and noted the statutory maximum of ten years. 

Priorto sentencing, the government filed a sentencingmemorandumand notice

of its intent to call a St. Louis police officer to testify about the circumstances

surrounding the charge to which Wallace pled guilty, specifically that video

surveillance revealed that Wallace entered the store with another man and the two

were arguing, the altercation escalated, punches were thrown, and Wallace ultimately

produced a handgun from his pocket, shot the victim in the neck, and calmly walked

out of the store. Wallace responded that this testimony was unnecessary because he

had already stipulated to facts supporting the charge. Wallace additionally argued

that because there had been no objections by either party to the prepared PSR, the

government could not raise the issue of an upward variance at sentencing. The

district court permitted the testimony. 

The district court then varied upward from the suggested Guidelines range and

imposed a sentence of 108 months. On appeal, Wallace argues that this sentence is

procedurally and substantively improper, but we find neither to be the case. "This

court reviews sentencesfor abuse of discretion." United States v. Durr, 875 F.3d 419,

420 (8th Cir. 2017). Under this standard the court initially reviews a sentence for

significant procedural error wherein this court reviews a district court's factual

findings for clear error and its interpretation and application of the Guidelines de

novo. Id. at 421. If there is no significant procedural error, we review a sentence for

substantive reasonableness. Here, "[a] district court abuses its discretion when it (1)

'fails to consider a relevant factor that should have received significant weight'; (2)

The Honorable John A. Ross, United States District Judge for the Eastern 1

District of Missouri.

-2-
'gives significant weight to an improper or irrelevant factor'; or (3) 'considers only the

appropriate factors but in weighing those factors commits a clear error of judgment.'"

United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting

United States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)). 

First, there is no legal basis for Wallace's argument that the government should

not be allowed to accept the conclusions of a PSR and simultaneously seek an upward

variance in a particular case. And, the district court did not abuse its discretion in

granting the government'stimely request for an upward variance following its review

of the matter in light of the requisite 18 U.S.C. § 3553(a) factors. 

Second, Wallace'ssentence wassubstantively reasonable. A careful review of

the court'ssentencing colloquy reveals the court'sthorough recitation ofthe § 3553(a)

factors and discussion of its decision-making in arriving at the imposed sentence. 

The court did not abuse its broad discretion. United States v. Peeples, 879 F.3d 282,

289 (8th Cir. 2018) ("The district court has broad discretion in weighing the 18

U.S.C. § 3553(a) factors when imposing a sentence."). 

For the reasons stated herein we affirm.

______________________________

-3-