                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3414
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Michael John Walker

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                  ____________

                            Submitted: October 14, 2019
                             Filed: February 27, 2020
                                  [Unpublished]
                                  ____________

Before KELLY, WOLLMAN, and BEAM, Circuit Judges.
                          ____________

PER CURIAM.

       Michael Walker was convicted in 2015 of being a felon in possession of a
firearm. On his first appeal, we vacated his sentence and remanded for
reconsideration of whether he qualified as an armed career criminal. United States v.
Walker, 840 F.3d 477, 490–91 (8th Cir. 2016). On remand, the government conceded
that the armed career criminal enhancement did not apply. In calculating Walker’s
new Guidelines range, the district court applied a four-level enhancement to his base
offense level under USSG § 2K2.1(b)(6) for possessing a firearm “in connection with
another felony offense” and resentenced him to a 96-month term of imprisonment.
Walker appealed, and we reversed that sentence and remanded with instructions to
resentence Walker without the firearm enhancement. United States v. Walker, 900
F.3d 995, 998 (8th Cir. 2018). At the October 24, 2018 resentencing hearing, the
district court1 imposed a 63-month term of imprisonment and a three-year term of
supervised release. Taking into account good-time credits, Walker had already served
more than 63 months in custody, so he was immediately released and began his term
of supervised release. Now, on his third appeal, Walker contends the district court
erred by imposing a supervised release term not offset by the time he spent in prison
above his 63-month sentence and by denying his motion for a downward departure
based on an allegedly incorrect criminal history category.2

       First, as Walker concedes, United States v. Johnson, 529 U.S. 53 (2000),
forecloses his argument that his supervised release period should be offset by his
excess incarceration period. As the Supreme Court explained in Johnson, although
incarceration and supervised release are “interrelated, the terms are not
interchangeable.” Id. at 58–59. “Supervised release fulfills rehabilitative ends,
distinct from those served by incarceration.” Id. at 59. And “[t]he objectives of
supervised release would be unfulfilled if excess prison time were to offset and reduce
terms of supervised release.” Id. Second, a district court’s denial of a downward
departure is unreviewable “unless the district court had an unconstitutional motive or
erroneously thought that it was without authority to grant the departure”—and Walker


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
      2
      To the extent Walker moved for a variance, the district court did not err in
denying the motion.

                                         -2-
fails to allege either occurred here. United States v. Montgomery, 525 F.3d 627, 629
(8th Cir. 2008) (cleaned up). In any event, a downward departure would not have
made a difference because Walker was immediately released from custody based on
the sentence imposed. Finally, we do not find, and Walker does not allege, any
indication that the district court abused its discretion in imposing his sentence. Gall
v. United States, 552 U.S. 38, 41 (2007) (“[C]ourts of appeals must review all
sentences . . . under a deferential abuse-of-discretion standard.”). The court properly
considered the 18 U.S.C. § 3553(a) factors and articulated its reasons for imposing the
sentence. See Montgomery, 525 F.3d at 629.

      The judgment of the district court is affirmed.
                     ______________________________




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