United States of America, Appellee, v. Demarko S. Walker, Appellant, 418 F.3d 949 (8th Cir. 2005)

Richard E. Rothrock, U.S. Attorney's Office, Des Moines, IA, for Appellee.

B. John Burns, Federal Public Defender's Office, Des Moines, IA, for Appellant.

Order Denying Petition for Rehearing and for Rehearing En Banc.

On January 13, 2005, a panel of this court affirmed the judgment of the district court. See United States v. Walker, 393 F.3d 842 (8th Cir. 2005). Before oral argument, Walker requested leave to file a supplemental brief on the applicability of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which the panel denied. However, the panel specifically reserved ruling on the applicability of Blakely to this case until the Supreme Court decided United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). See Walker, 393 F.3d at 849 n. 4. After the panel issued its decision, Walker filed a suggestion for rehearing en banc. The court decided to hold the suggestion for rehearing en banc pending the en banc resolution of a sentencing case involving Booker error. The court has issued that decision. See United States v. Pirani, 406 F.3d 543 (8th Cir. 2005).

Because Walker failed to preserve Booker-type error, the panel has now reviewed Walker's Blakely sentencing claims under a plain-error standard. Although the district court erroneously viewed the Guidelines as mandatory, in violation of Booker, Walker has not "demonstrated a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated." Id. at 551. Therefore, Walker has not shown the district court committed plain error in sentencing him. The panel affirms Walker's sentence. See 8th Cir. R. 47B.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Colloton did not participate in the consideration or decision of this matter. (5128-010199)