                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3637
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
David Marron-Garcia,                    *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: October 13, 2008
                                Filed: February 26, 2009
                                 ___________

Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

       David Marron-Garcia pled guilty to unlawfully reentering the United States
after he was previously deported for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). Under the advisory sentencing guidelines, the district court
correctly calculated a guideline range of 37 to 46 months’ imprisonment, based on an
offense level of 21 and a criminal history category of I. On November 14, 2007, the
district court1 denied Marron-Garcia’s request for a downward variance and sentenced


      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
him to 37 months’ imprisonment, at the bottom of the advisory range. Marron-Garcia
appeals, arguing that he should be resentenced in light of the Supreme Court’s
intervening decision in Gall v. United States, 128 S. Ct. 586 (2007). We affirm.

       Prior to Gall, this circuit and others had applied a form of “proportionality
review” to non-guideline sentences. Our cases required that the justification for a
variance be “proportional to the extent of the difference between the advisory range
and the sentence imposed.” United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006)
(internal quotations omitted), rev’d, 128 S. Ct. 586 (2007). “[T]he farther the district
court varies from the presumptively reasonable guidelines range,” we said, “the more
compelling the justification based on the [18 U.S.C.] § 3553(a) factors must be.”
United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006). This followed, we
thought, from the Supreme Court’s explanation that appellate review for
“reasonableness” would “continue to move sentencing in Congress’ preferred
direction, helping to avoid excessive sentencing disparities while maintaining
flexibility sufficient to individualize sentences where necessary.” United States v.
Booker, 543 U.S. 220, 264-65 (2005). In Gall, however, the Supreme Court held that
an appellate rule requiring “proportional” justifications for variances from the
advisory guideline range is inconsistent with Booker. 128 S. Ct. at 594.

       Marron-Garcia argues that Gall’s rejection of “proportionality review” entitles
him to resentencing. He contends that because Gall had not been decided at the time
of his sentencing, the district court did not appreciate the extent of its discretion to
impose a sentence below the advisory guideline range, and that a remand is required.
We disagree.

       We have observed that “[o]ne may question whether the standard articulated in
this court’s pre-Gall proportionality review was substantively different from the
Supreme Court’s direction to district courts in Gall that ‘a major departure should be
supported by a more significant justification than a minor one.’” United States v. Lee,

                                          -2-
No. 07-3738, 2009 WL 48222, at *3 (8th Cir. Jan. 9, 2009) (quoting Gall, 128 S. Ct.
at 597). But accepting that Gall altered the legal framework in this circuit, id., the
change is immaterial to this case. Our pre-Gall cases focused on whether major
variances were supported by proportional justifications. One formulation asked
whether an “extraordinary variance” was supported by “comparably extraordinary
circumstances.” United States v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006),
vacated as moot, 551 U.S. 87 (2007). Gall rejected “an appellate rule that requires
‘extraordinary’ circumstances to justify a sentence outside the Guidelines range,” 128
S. Ct. at 595, but this court’s rule did not require “extraordinary” circumstances to
justify every non-guideline sentence. Lee, 2009 WL 48222, at *3. Under this court’s
pre-Gall legal framework, district courts had “less discretion to make a major variance
than they now enjoy,” id., but they had ample discretion to make a minor variance.

       Here, the district court imposed a sentence of 37 months’ imprisonment, at the
bottom of the advisory guideline range. Nothing in the record suggests that the
district court thought “extraordinary” circumstances were required to justify even a
modest variance. Nor is there any indication that the district court considered
sentences outside the advisory range presumptively unreasonable. That the district
court was not persuaded to make any variance at all shows that it believed 37 months
was the appropriate sentence under § 3553(a). Because nothing in our pre-Gall cases
impermissibly constrained the district court’s discretion to grant at least a minor
variance based on § 3553(a), and because nothing in the record suggests that the
district court thought otherwise, there is no basis to conclude that the district court’s
approach conflicted with Gall. See United States v. Rodriguez-Rodriguez, 530 F.3d
381, 388-89 (5th Cir. 2008) (per curiam).

      The judgment of the district court is affirmed.
                     ______________________________




                                          -3-
