                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3004
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Pamela J. Walker,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: January 11, 2006
                                 Filed: March 9, 2006
                                  ___________

Before WOLLMAN, GIBSON, and ARNOLD, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Pamela Walker pleaded guilty to conspiracy to defraud. The district court1
sentenced her to five months’ imprisonment and three years’ supervised release.
Walker appeals, arguing that the sentence is unreasonable and that the district court
erred in taking into account the sentence of Walker’s sister and the total amount of
loss involved in the conspiracy when it fashioned Walker’s sentence.2 We affirm.

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
      2
      Walker withdraws her argument that she was denied the benefit of her plea
agreement when the district court took into account the total amount of loss associated
                                          I.

       Walker pleaded guilty to conspiring with her relatives to commit financial aid
fraud in violation of 18 U.S.C. § 371. In her plea agreement, Walker stipulated that
the 2004 version of the U.S. Sentencing Guidelines applied to her case, that her base
offense level was six, and that the amount of loss for which she was responsible was
between $10,000 and $30,000. The Presentence Investigation Report (PSR), to which
Walker did not object, instead applied the 2000 version of the guidelines because
Walker committed her criminal acts while this version of the guidelines was in effect
and because applying the 2000 version would be beneficial to Walker. Applying the
2000 version of the guidelines, the PSR provided that Walker’s base offense level was
six and that the amount of loss for which Walker was responsible was between
$10,000 and $20,000, resulting in an adjusted offense level of nine. Taking into
account a two-level reduction for Walker’s acceptance of responsibility and her
criminal history category of three, the appropriate sentencing range was determined
to be four to ten months’ imprisonment.

       In determining Walker’s sentence, the district court stated that it was required
to consult the 18 U.S.C. § 3553(a) sentencing factors and asserted that it did so. It
also stated that:

      [W]hen we look at the loss regarding Ms. Walker, hers is $10,730. The
      government could have pushed to have Ms. Walker responsible for the
      entire [amount involved in the conspiracy,] $400,000, which would have
      bumped her sentence up significantly, as well as increased the amount
      of restitution. When I have sentenced all of the people involved in this
      conspiracy, and I guess I have one more left to sentence, I have tried to
      take into account the -- their involvement based on the dollar loss the
      government holds them responsible for. And I agree that in terms of the


with the conspiracy rather than the small portion to which she stipulated in the plea
agreement.

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      dollar amount of the loss, Ms. Walker most closely resembles [her sister]
      Betty Walker.

Sentencing Tr. at 19. Finally, the district court sentenced Walker to five months in
prison and three years of supervised release, within the 2000 advisory guidelines
range. Walker now appeals her sentence.

                                           II.

       Walker first argues that the district court imposed an unreasonable sentence
because it did not adequately evaluate all of the factors that it was required to consider
under 18 U.S.C. § 3553(a). We review for abuse of discretion the reasonableness of
the sentence imposed by the district court. United States v. Dieken, 432 F.3d 906, 909
(8th Cir. 2006); see also United States v. Gatewood, No. 05-1865, slip op. at 2, 2006
WL 452902 at *1 (8th Cir. Feb. 27, 2006).

       A sentence may be unreasonable if the district court failed to consider a relevant
factor that should have received significant weight, gave significant weight to an
improper or irrelevant factor, or considered only appropriate factors but nevertheless
committed a clear error of judgment by imposing a sentence that lies outside of the
range dictated by the facts of the case. United States v. Hadash, 408 F.3d 1080, 1084
(8th Cir. 2005). Although a district court is required to consider each of the § 3553(a)
factors in determining the proper sentence to impose, it need not “categorically
rehearse each of the [§] 3553(a) factors on the record when it imposes a sentence as
long as it is clear that they were considered.” Dieken, 432 F.3d at 909. Here, the
district court acknowledged that it was required to consider the § 3553(a) factors and
confirmed that it did consider them. Although the district court did not discuss each
of the factors in detail, we are satisfied that the district court gave them adequate
consideration. Id.




                                           -3-
       Further, a sentence within the guidelines range is presumptively reasonable.
United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005). Walker’s sentence of
five months’ imprisonment and three years’ supervised release fell within the 2000
guidelines range for the crime to which she pleaded guilty. Additionally, Walker
received a lesser sentence than one that would have resulted from the stipulations in
her plea agreement under the 2004 guidelines. Walker failed to rebut the presumption
that the sentence imposed was reasonable.

                                           III.

       Walker next argues that the district court violated Federal Rule of Criminal
Procedure 32 and the Fifth Amendment when, without first giving reasonable notice
to Walker, it took into account evidence not in the record when fashioning Walker’s
sentence. Because Walker raises this issue for the first time on appeal, we review it
for plain error. See United States v. Murphy, 248 F.3d 777, 779 (8th Cir. 2001).
Under plain error review, we cannot correct an error not raised at trial unless there was
an error, it is plain, and it affects substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993); United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc).
If each of these conditions is met, we may exercise our discretion to notice the
forfeited error only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Pirani, 406 F.3d at 550.

        Sentencing judges exercise wide discretion in the types of evidence that they
may consider in determining defendants’ sentences. Williams v. New York, 337 U.S.
241, 246 (1949) (cited with approval in Blakely v. Washington, 542 U.S. 296, 304-05
(2004)). This latitude is manifested in 18 U.S.C. § 3553(a) and Federal Rule of
Criminal Procedure 32, which provide for the consideration of evidence outside of the
trial record in sentencing a defendant. See also Williams, 337 U.S. at 246. Rule 32
provides, however, that before a district court may impose a sentence, it must provide
the defendant and her attorney with an opportunity to speak on the defendant’s behalf.


                                           -4-
Fed. R. Crim. P. 32(i)(4). Further, to give meaning to this opportunity to speak, a
district court must reasonably notify the parties if it contemplates departing from the
sentencing guidelines range on a ground not identified for departure in the presentence
report or a prehearing submission. Fed. R. Crim. P. 32(h); Burns v. United States, 501
U.S. 129, 138-39 (1991). This is consistent with the notice requirements of the Fifth
Amendment. Cf. United States v. Egenberger, 424 F.3d 803, 805 (8th Cir. 2005)
(noting that the core concepts of the Fifth Amendment are notice, foreseeability, and
the right to fair warning).

       Walker, in essence, argues that this rule requiring notification for departures
should be extended to require a district court to reasonably notify the defendant if it
contemplates relying on evidence outside of the record in sentencing the defendant
within the guidelines range. This concern of notice is not at issue in Walker’s case,
however, because Walker was put on constructive notice that the district court might
consider her codefendants’ sentences in sentencing her. Indeed, § 3553(a)(6)
mandates that a district court consider the “need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” 18 U .S.C. § 3553(a)(6). Accordingly, the district court properly
considered Walker’s sister’s sentence. Because Walker had adequate notice, the
district court did not violate Rule 32 or Walker’s Fifth Amendment rights.

        Finally, we disagree with Walker that the district court considered the total
amount of loss involved in the conspiracy when determining her sentence. The
district court merely referenced the $400,000 in comparing Walker’s situation to the
situations and sentences of her codefendants as required under 18 U.S.C. § 3553(a)(6).
If the district court had relied on the $400,000 amount instead of the lesser amount to
which Walker stipulated, Walker’s adjusted offense level would have been thirteen
instead of nine, triggering a sentencing range of eighteen to twenty-four months.
Compare U.S.S.G. § 2F1.1(b)(1)(d) (2000) (providing for a three-level increase when
the offense involved more than $10,000) with U.S.S.G. § 2F1.1(b)(1)(J) (2000)


                                         -5-
(providing for a nine-level increase when the offense involved more than $350,000).
Instead, the district court imposed a significantly lesser sentence.

       We conclude that because the district court properly considered Walker’s
sister’s sentence and did not rely on the total amount of loss involved in the
conspiracy in fashioning the sentence, no error, plain or otherwise, occurred during
the sentencing process.

      The judgment is affirmed.
                      ______________________________




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