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United States v. Walker

United States Court of Appeals, Tenth Circuit

March 25, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
JOHN EUGENE WALKER, Defendant-Appellee.

          Appeal 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 Plaintiff-Appellant.

          Adam 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 Defendant-Appellee.

          Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.

          HOLMES, CIRCUIT JUDGE.

         This 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.

         The 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.

         I

         We 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.

         A

         In May 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.[1] 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 robbery.

         B

         Shortly 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 the program.

         At Mr. 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.[2] 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.

         The 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.

         C

         The 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.

         We 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.").

         We also 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.

         In sum, 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.").

         We 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, [3] 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 opinion.

Id. at 1259-60.

         Judge 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.

         D

         On 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.

         The 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).

         Mr. 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.

         At the 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.

         The 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 financial difficulties.

         In 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 ...


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