              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 18-3636
                     ___________________________

                          United States of America

                     lllllllllllllllllllllPlaintiff - Appellee

                                        v.

                          Sejuan Marquise Walker

                   lllllllllllllllllllllDefendant - Appellant
                                   ____________

                  Appeal from United States District Court
              for the Northern District of Iowa - Cedar Rapids
                               ____________

                        Submitted: October 14, 2019
                          Filed: February 6, 2020
                               [Unpublished]
                              ____________

Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                              ____________

PER CURIAM.
      Sejuan Walker pleaded guilty to possessing a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The district court1 sentenced Walker to 87 months’
imprisonment, the maximum within the Sentencing Guidelines range. Walker
challenges his sentence, arguing that the district court made erroneous factual
findings. We affirm.

                                    I. Background
       On January 29, 2018, Walker and two friends went car-hopping. Car-hopping
involves locating unlocked cars and stealing their valuable contents. The group stole
a gun, a wallet, and credit and debit cards from a car. Walker used one of the debit
cards to purchase an electronic game system and video games. The purchase made
him a suspect for the theft. At the time, Walker had multiple warrants out for his
arrest. When police approached him at his apartment complex, Walker attempted to
escape through the laundry room before being arrested. A week later, investigating
officers found the stolen gun in the laundry room. One of Walker’s fingerprints was
found on the gun’s magazine. Walker pleaded guilty to the weapon possession
charge.

      At sentencing, the district court stated that Walker relied on theft to support
himself rather than find employment. Further, the court found that Walker had a
criminal history that included multiple crimes of theft and had failed to rehabilitate
when provided the opportunity. The court also noted that, unlike his previous
offenses, this crime involved a firearm. Based on these facts, the district court
sentenced Walker to 87 months’ imprisonment, at the top of the Guidelines range.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

                                         -2-
                                     II. Discussion
      Walker argues that the district court procedurally erred because it relied on
disputed factual allegations in his presentence investigation report (PSR).
Specifically, he alleges that the court failed to sentence him “on the basis of accurate
and reliable information.” Appellant’s Br. at 5.

      We have held that “[p]rocedural error includes . . . selecting a sentence based
on clearly erroneous facts.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc) (internal quotations omitted). “[A] district court finding without
record support is clearly erroneous.” United States v. Richey, 758 F.3d 999, 1002 (8th
Cir. 2014) (cleaned up). “If the sentencing court chooses to make a finding with
respect to any disputed facts, it must do so on the basis of evidence, and not the
presentence report.” Id. (cleaned up).

       The government points out that Walker failed to object to the alleged
procedural error. “If a defendant fails to object timely to a procedural sentencing
error, the error is forfeited and may only be reviewed for plain error.” United States
v. Hill, 552 F.3d 686, 690 (8th Cir. 2009) (quoting United States v. Vaughn, 519 F.3d
802, 804 (8th Cir. 2008)). “To constitute a plain error, a district court’s decision must
be (1) an error, (2) which is clear or obvious, and (3) which affects substantial rights.”
United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002). “Even if the defendant
shows these three conditions are met, we may exercise our discretion to correct a
forfeited error only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Hill, 552 F.3d at 690 (cleaned up).

      In his reply brief, Walker responds that he preserved his argument for
procedural error by disputing facts in the PSR, which represented that he was the one
who stole the firearm from the car. Instead, Walker asserted that one of his
accomplices stole the gun. He contends the district court, without evidence, assumed



                                           -3-
that he stole the gun in considering the severity of his offense. Alternatively, Walker
argues that the procedural error alleged would satisfy even plain error review. The
sentencing transcript indicates that Walker did not object to the district court’s
comments. Therefore, “[b]ecause [Walker] failed to object to the district court’s
alleged procedural error, we review for plain error.” United States v. Cottrell, 853
F.3d 459, 462 (8th Cir. 2017).

      Walker argues (1) that the district court adopted the government’s version of
the contested gun facts and (2) that the district court mischaracterized Walker’s time
in group homes as probation supervision. The government responds that Walker
simply misinterprets the district court’s statements. We agree.

       In Richey, we rejected the defendant’s “subjective interpretation of the district
court’s sentencing rationale.” 758 F.3d at 1004. There, the defendant believed that the
district court erred because it referenced “all of the reasons set out in the adjustment
report and recommendation,” and the adjustment report contained disputed facts. Id.
But, considering the record as a whole, we determined that the district court was
referring to the “Recommendation/Justification” section, which contained only
undisputed facts. Id. at 1004–05. Because the court did not use disputed facts, we
affirmed. Id. at 1005.

       Looking to the record as a whole—as we did in Richey—we conclude that the
district court did not commit a procedural error, much less a plain error. Walker
argues that the district court found that his criminal conduct was escalating because
he stole a gun. We read the record as the district court merely noting that Walker
possessed a gun rather than that he personally stole it. This is consistent with both
parties’ narratives. In the district court’s words:

      In reviewing the case and the guidelines the Court did not consider any
      objected-to portions of the Pre-Sentence Investigation Report and there

                                          -4-
      were several in the offense conduct. Notably, some disagreement as to
      whether [Walker’s girlfriend] was really the possessor of the firearm.
      But in any event, at some point Mr. Walker did possess the firearm and
      we know that because there was a fingerprint of the Defendant located
      on the magazine that was inserted into the firearm.

Tr. of Sent. at 13, United States v. Walker, 1:18-cr-00055-LRR (N.D. Iowa Jan. 4,
2019), ECF No. 46 (emphasis added).

       Considering both parties’ accounts, the district court found that Walker
possessed the stolen firearm because it bore his fingerprint. The district court
considered gun possession to be an escalation of his prior conduct, which had never
involved firearms. That finding was supported by the record. In short, the district
court did not use the PSR allegations to resolve a contested issue of fact, and so it did
not commit a procedural error.

      Walker also contends the court construed his troubled upbringing as
aggravating evidence against him rather than mitigating evidence in his favor. Walker
bases this contention on the following quotes from the sentencing transcript:

      It’s not only the actual convictions, but also, as Mr. Morfitt has noted,
      the pattern of activity and the fact that [Walker] was on correctional
      supervision at the time he committed this offense on multiple state
      violations of law. . . . Very concerning that he has been noncompliant
      while subject to correctional treatment and that he has repeated
      violations of law relating to theft and burglary convictions, which the
      Court concludes shows a lack of respect for the law. He is penalized for
      these after conviction and he goes back and repeats the same crime
      several times. I concluded that he would rather be a burglar and a thief
      rather than have legal employment and that, of course, is not acceptable.
      I did look at the personal and family data that Mr. Meyer talked about
      and he did have a lack of stability in the home, but he also had



                                          -5-
      opportunities to change things around because he was at group homes
      and residential placements, he had probation supervision, but his
      behavior was not changed. In fact, you could argue that his criminal
      behavior is escalating rather than going down as he gets older.

Id. at 14–15 (emphasis added). Citing only the emphasized text, Walker argues that
the district court’s sentence was based on untrue facts: that Walker was placed in the
group home due to bad conduct and that the group home constituted probation
supervision. Walker’s reading ignores the context. The probation and behavioral
issues cited by the district court refer back to his supervised release and prior thefts,
not to Walker’s placement in a group home.

      Thus, like Richey, we reject Walker’s subjective interpretation of the district
court’s rationale. The district court’s decision was based on uncontested evidence,
and the district court did not commit procedural error in considering that evidence.
The district court expressly considered the 18 U.S.C. § 3553(a) factors and based
Walker’s sentence “on his likelihood to recidivate and the seriousness of his criminal
behavior.” Id. at 15–16. The district court did not err.

                                 III. Conclusion
      For the foregoing reasons, we affirm the district court.
                      ______________________________




                                          -6-
