                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1766
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Thurman L. Wade, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                           Submitted: December 12, 2016
                              Filed: March 21, 2017
                                  [Unpublished]
                                  ____________

Before RILEY, Chief Judge,1 WOLLMAN and SMITH, Circuit Judges.
                              ____________

PER CURIAM.




      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
       Thurman Wade was sentenced to 151 months’ imprisonment followed by two
years of supervised release for bank robbery. While on supervised release, Wade
violated a special condition of the release. At his revocation hearing and in his
sentencing memorandum, Wade asked the district court2 to consider the duration of
his initial imprisonment as a mitigating factor in determining his punishment for
violating the special condition. Wade argued that he served a “phenomenally longer
period of time” for his original sentence (151 months) than he would have served
under current law (46–57 months) because his criminal history category would be
lower under current law. Therefore, Wade asked the district court to “exercise its
discretion in light of the unjustly overlong sentence he had served and allow him to
restart his supervised release” rather than imposing a sentence within the Guidelines
range of 8–14 months’ imprisonment.

      The district court sentenced Wade to eight months’ imprisonment, to be
followed by two years of supervised release. The court noted that it “considered the
guideline range as well as all the factors of Section 3553(a), defense counsel’s
memorandum on disposition of supervised release violation, and the statements of
defense counsel and the Government and the Defendant.”

       Wade appeals, arguing that remand is appropriate because the district court was
unaware of its power to consider the duration of Wade’s imprisonment as a mitigating
factor. We affirm.

                                     I. Discussion
      “We review the district court’s application of the Guidelines de novo and its
factual findings for clear error. We review the ultimate sentence for reasonableness,
which is akin to the abuse-of-discretion standard. A sentence within the Guidelines


      2
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

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 range is presumptively reasonable.” United States v. Watson, 480 F.3d 1175,
1176–77 (8th Cir. 2007) (citations omitted).

       Wade argues that the district court erred by declining to exercise its discretion
to consider the duration of his initial imprisonment as a mitigating factor in
determining his revocation sentence. “When a district court does not consider an
argument because it is unaware of its power to do so, . . . a remand is appropriate.”
United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). However, “when a
district court is aware of its discretion to depart downward and elects not to exercise
this discretion, then that decision is unreviewable.” Watson, 480 F.3d at 1177.

        Wade identifies no evidence indicating that the district court was unaware of
its power to consider Wade’s argument. To the contrary, the record shows that not
only was the district court aware of its power to consider Wade’s argument, but also
that the district court did consider the argument. The district court expressly stated
that it “considered the guideline range as well as all the factors of Section 3553(a),
defense counsel’s memorandum on disposition of supervised release violation, and
the statements of defense counsel and the Government and the Defendant.” (Emphasis
added.)

      Thus, the court considered Wade’s proposed mitigating factors and,
nonetheless, imposed a sentence that it believed to be sufficient but not greater than
necessary “[b]ased upon the nature of the violations.” We discern no error. See
Watson, 480 F.3d at 1177; Roberson, 517 F.3d at 995.

                                 II. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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