from the United States District Court for the District of
Utah D.C. No. 2:13-CR-00379-CW-1
Jennifer Williams, Assistant United States Attorney (John W.
Huber, United States Attorney, and Jeannette F. Swent,
Assistant United States Attorney, with her on brief),
District of Utah, Salt Lake City, Utah, for
Bridge, Assistant Federal Public Defender (Kathryn N. Nester,
Federal Public Defender, Scott Keith Wilson, and Bretta
Pirie, Assistant Federal Public Defenders, on brief),
District of Utah, Salt Lake City, Utah, for
TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
case comes before us for a second time. Defendant-Appellee
John Walker, who pleaded guilty to two counts of bank robbery
under 18 U.S.C. § 2113(a), was originally sentenced to
time served-thirty-three days in pretrial detention-followed
by three years of supervised release. The government
appealed, and we reversed the sentence as substantively
unreasonable and remanded for resentencing consistent with
our opinion. On remand, the district court received new
arguments and evidence before resentencing Mr. Walker to ten
years of probation, two years of home confinement, and 500
hours of community service.
government appeals again, and we are now asked (1) whether
the district court, on remand, violated the mandate we issued
in United States v. Walker ("Walker
I"), 844 F.3d 1253 (10th Cir. 2017), by not
sentencing Mr. Walker to a term of imprisonment; and (2)
whether, even if the district court complied with our
mandate, Mr. Walker's sentence following our remand
nevertheless remains substantively unreasonable. The
government also requests, in the event that we reverse and
remand for resentencing, that we reassign the case to a
different district court judge. Because we conclude that the
district court did not run afoul of Walker I's
mandate when it declined to sentence Mr. Walker to a prison
term and further conclude that the government has waived its
remaining substantive reasonableness challenge, we
affirm the district court's sentence.
And, consequently, we deny as moot the
government's request for reassignment.
start by surveying (A) Mr. Walker's offense conduct, (B)
the district court's original sentencing proceeding, (C)
our opinion in Walker I, (D) the district
court's resentencing proceeding, and (E) the district
court's resentencing order.
2013, Mr. Walker walked into a bank in Salt Lake City, Utah,
while wearing a wig and fake mustache and yelled at the
teller to give him money. The teller gave him over two thousand
dollars, and Mr. Walker left without further incident. Later
that same month, Mr. Walker entered a second bank, this time
in Sandy, Utah, while dressed in women's clothing. Again,
he yelled at the teller, took over fifteen hundred dollars,
and left. Police subsequently arrested Mr. Walker, who
admitted to robbing both banks. Mr. Walker was indicted on
two counts of bank robbery in violation of 18 U.S.C. §
2113(a). Although he was taken into custody after the arrest,
he was released on pretrial supervision thirty-three days
later. He subsequently pleaded guilty to both counts of bank
before Mr. Walker's sentencing hearing, he violated the
conditions of his release when he was cited for driving under
the influence and with an open container. After receiving
these charges, Mr. Walker requested that the court defer his
sentencing for thirteen months so that he could attend a
faith-based residential treatment program. The district court
granted the deferral, and Mr. Walker successfully completed
Walker's subsequent sentencing hearing, the court
accepted the PSR's findings and calculated Mr.
Walker's United States Sentencing Guidelines
("Guidelines" or "U.S.S.G.") range to be
151 to 188 months' imprisonment. This range reflected Mr.
Walker's extensive criminal history, which, as Mr. Walker
conceded, included involvement in at least ten previous bank
robberies. The government argued for a below-Guidelines-range
sentence of 120 months' imprisonment, whereas Mr.
Walker-emphasizing his rehabilitation through the residential
treatment program-argued for a five-year term of probation.
district court discussed the 18 U.S.C. § 3553(a) factors
but, in sentencing Mr. Walker, relied almost exclusively on
his rehabilitation. The court gave Mr. Walker a time-served
sentence, i.e., the thirty-three days of pre-trial detention,
followed by thirty-six months of supervised release.
government appealed from the district court's sentence,
claiming that it was substantively unreasonable. We reversed
and remanded for resentencing, acknowledging that "the
sentencing court sincerely tried to craft a just
sentence" but concluding that "the court placed
inadequate weight on the factors required by Congress."
Walker I, 844 F.3d at 1255. To make this point, we
assessed the district court's reasoning against the
relevant § 3553(a) factors.
concluded that only one-the nature and circumstances of the
crime and Mr. Walker's history and characteristics,
see § 3553(a)(1)-provided even partial support
for a time-served sentence. As to that factor, we noted that
"[t]he nature of the offense weighs strongly against a
time-served sentence" but that "the offender's
characteristics could reasonably support leniency."
Walker I, 844 F.3d at 1257. The other § 3553(a)
factors, however, favored imprisonment or were irrelevant.
For instance, § 3553(a)(2)-that is, the need for the
sentence imposed to reflect "the congressional aims of
sentencing"-"weigh[ed] against a time-served
sentence." Id. at 1258. We noted that
"[t]he district court gave inadequate attention" to
certain congressional aims, id. (discussing general
deterrence); see id. ("the value of
incapacitation . . . was never mentioned at sentencing"
(citation omitted)), and found that some of these aims cut
against the district court's sentencing conclusion,
id. ("The value of incapacitating Mr. Walker
further supports incarceration of Mr. Walker.").
determined that the sentencing range established by the
Guidelines and the need to avoid unwarranted disparities,
see § 3553(a)(4), (6), both "weigh[ed]
against a time-served sentence." Walker I, 844
F.3d at 1258. To underscore this point, we compared
Mr. Walker to the defendant in United States v.
Friedman, 554 F.3d 1301 (10th Cir. 2009). We explained
that in Friedman the defendant had also pleaded
guilty to bank robbery and faced an identical Guidelines
range. See Walker I, 844 F.3d at 1259. The district
court in that case had imposed a sentence of fifty-seven
months' imprisonment, but "we concluded that this
sentence was substantively unreasonable because (1) the
defendant had an extensive history of recidivism and lacked
remorse and (2) the 57-month sentence created unwarranted
sentence disparities." Id. While the Walker
I panel noted some differences between the two cases, it
reasoned that "[i]f the 57 months of incarceration in
Friedman was an unreasonably light sentence, Mr.
Walker's 33 days in pretrial detention was also
unreasonably light." Id.
we concluded that, "[o]f the seven sentencing factors,
three factors weigh[ed] against a time-served sentence, one
point[ed] both ways, and three [were] inapplicable."
Id. at 1259. Thus, we held that the district court
erred because it "focused almost exclusively on Mr.
Walker's new found sobriety"-i.e., a characteristic
of Mr. Walker-to the exclusion of the other factors.
Id. While we did "not question the materiality
of this factor," we held that "by declining to
impose any prison time, the district court effectively failed
to give any weight to the congressional values of punishment,
general deterrence, incapacitation, respect for the law, and
avoidance of unwarranted sentencing disparities."
Id.; see id. at 1255 ("In our view,
this sentence was unreasonably short based on the statutory
sentencing factors and our precedent.").
ended the opinion as follows:
We conclude that 33 days in pretrial detention constitutes an
unreasonably short sentence. For admittedly robbing two banks
as an armed career offender,  Mr. Walker would avoid any
punishment and the sentence would give little or no weight to
the congressional values of punishment, general deterrence,
incapacitation, respect for the law, and avoidance of
unwarranted sentence disparities. In these circumstances, we
regard the sentence as substantively unreasonable.
Reversed and remanded for resentencing consistent with this
Id. at 1259-60.
Hartz wrote a brief concurrence wherein he disagreed with the
majority's analysis of the nature and circumstances of
the crime and Mr. Walker's history and characteristics,
see § 3553(a)(1). Walker I, 844 F.3d
at 1260 (Hartz, J. concurring). In his view, Mr. Walker's
"short period of apparent rehabilitation hardly
counterbalances the seriousness of his offense and his
extensive criminal record." Id.
remand, the district court ordered the Probation Office to
provide an update to the PSR that detailed Mr. Walker's
lifestyle and conduct since the original sentencing. The
court also ordered the parties to file supplemental briefing
responding to Walker I, and it allowed the parties
to submit supplemental evidence.
update to the PSR explained that Mr. Walker had complied with
all conditions of his supervision, maintained employment, and
was living a modest life. Mr. Walker's Probation Officer
also testified at a subsequent evidentiary hearing, stating
that he did not "think a custody sentence would be
beneficial in Mr. Walker's case" because of the
"positive changes" that Mr. Walker had made in his
life, namely his sobriety, employment, and familial ties. R.
at 540-41 (Tr. of Evidentiary Hr'g on Resentencing, dated
Apr. 24, 2017).
Walker submitted additional evidence of his rehabilitation.
His wife testified about the positive effect that Mr. Walker
had on her relationships with her daughter and granddaughter.
Mr. Walker's other family members and
drug-treatment-program classmates sent the district court
"a small flood of letters" that the court
characterized as "uniformly praising his character, work
ethic, and the progress he [had] made in the past
years." Id. at 361. Mr. Walker's counselor
submitted a written statement that indicated Mr. Walker had
been "rehabilitated," no longer craved alcohol and
drugs, and now "turn[ed] to God, his faith community and
mentors" during stressful periods. Id. at
360-61. This counselor also testified at the evidentiary
hearing, where she opined that removing Mr. Walker from his
support system would "absolutely have a negative effect
on him." Id. at 553.
end of the evidentiary hearing, Mr. Walker addressed the
court. He testified that it was his "drinking that le[d]
to other things," and that it was only when he was using
drugs that he would "think about a bank."
Id. at 620. He added that he "would never do a
bank robbery if [he] wasn't under the influence."
Id. at 617. He claimed that this problematic path
from drug abuse to crime was "not going to happen"
again because he had "been transformed," was
"not the old Johnny," and did not "even think
about drinking" anymore. Id. at 620.
government, on the other hand, submitted its own additional
evidence. Victims, including a teller at one of the robbed
banks, indicated that Mr. Walker had shaken their personal
senses of security, and one victim specifically testified
that he believed Mr. Walker needed to be incarcerated for
some period of time. Two law enforcement officers both
testified about conversations that they had with Mr. Walker
wherein he had admitted that he had robbed the banks due to
addition to this evidence, the parties offered oral arguments
for the sentences that they thought would be appropriate. The
government again argued that Mr. Walker should be sentenced
to 120 months' imprisonment, while Mr. Walker asserted
that "five years of probation, a substantial period of
home confinement, and community service" would be
sufficient to satisfy the aims of sentencing. Id. at
374-75. At the conclusion of the evidentiary hearing, the
court decided to continue the hearing "[i]n order to
adequately address the issues raised by the United States, as