United States v. Walker , 69 F. App'x 546 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-11-2003
USA v. Walker
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3687
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_________________
No. 02-3687
_________________
UNITED STATES OF AMERICA,
v.
MICHAEL WALKER,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 99-cr-00089)
District Judge: Honorable James F. McClure, Jr.
_________________
Submitted Under Third Circuit LAR 34.1(a)
June 26, 2003
Before: SLOVITER, AMBRO, Circuit Judges, and TUCKER,* District Judge
(Filed: July 11, 2003)
OPINION OF THE COURT
________________
*Hon. Petrese B. Tucker, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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SLOVITER, Circuit Judge.
Appellant Michael Walker appeals from the judgment of sentence imposed
following his guilty plea for possession with intent to distribute in excess of five grams of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) and 18 U.S.C. § 2.
Walker contends that the District Court erred by sentencing him as a career offender,
denying him a downward adjustment for acceptance of responsibility, and precluding him
from litigating, for the purpose of sentencing, the quantity of drugs he was charged with
possessing. We have jurisdiction to review a district court’s final sentence under 28
U.S.C. § 1291 and 18 U.S.C. § 3742, and we now affirm.
Because we write only for the parties who are aware of the relevant facts, we need
review them only summarily.
I.
Walker, a passenger in a vehicle on Interstate 80, was arrested on March 15, 1999
by the Pennsylvania State Police who, after a consent search of the vehicle, found 13.6
grams of cocaine base (crack) and 110.3 grams of cocaine that W alker admitted were his.
In course, Walker and the two other men in the car were indicted on federal drug
offenses.
Two months later, Walker and a colleague were discovered in a motel in South
Williamsport with 13.7 grams of crack cocaine in plain view. On June 9, 1999, a grand
jury returned a four-count Second Superseding Indictment for federal drug charges
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against Walker and his co-defendants. After withdrawing one guilty plea on July 6, 2000
in the wake of Apprendi, Walker pled guilty on March 1, 2001 to Count II of the Second
Superseding Indictment, which charged him with possession with intent to distribute in
excess of five grams of crack cocaine. Walker admitted to the material facts of the
offense several times during his colloquy with the judge.
The Pre-Sentence Investigative Report noted that, due to several convictions from
the Philadelphia Court of Common Pleas, Walker qualified as a career offender. Walker
moved to withdraw his guilty plea after the report was compiled but the District Court
denied the motion on December 10, 2001. Walker also moved to have the drugs
independently tested to confirm that they were crack cocaine. The District Court denied
this motion on March 5, 2002 and ordered that Walker would not be granted a reduction
in the offense level for acceptance of responsibility because he had made a false assertion
that the drug in question was not crack. The District Court sentenced Walker to 262
months incarceration, the minimum allowed under the sentencing guidelines without a
downward departure.
II.
Walker argues that the District Court erred by treating him as a career offender
pursuant to the United States Sentencing Guidelines § 4B1.1. One of the two offenses
that qualified him as a career offender, possession with intent to deliver cocaine base,
resulted from an arrest on December 3, 1991. The other, delivery of cocaine base and
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possession of cocaine base, resulted from an arrest on December 16, 1994. Walker
contends these two were related cases under § 4A1.2 of the Sentencing Guidelines
because they were “were consolidated for trial or sentencing” and he was sentenced by
the Court of Common Pleas for both in one hearing on June 21, 1996.
This Court exercises plenary review over a district court’s legal construction of the
Sentencing Guidelines. United States v. Badaracco, 954 F.2d 928, 933 (3d Cir. 1992).
Walker cites no authority other than note 3 to § 4A1.2 of the Sentencing Guidelines to
support his claim that these offenses were related. That note reads in relevant part:
Prior sentences are not considered related if they were for offenses that
were separated by an intervening arrest (i.e., the defendant is arrested for
the first offense prior to committing the second offense). Otherwise, prior
sentences are considered related if they resulted from offenses that (A)
occurred on the same occasion, (B) were part of a single common scheme
or plan, or (C) were consolidated for trial or sentencing.
United States Sentencing Guidelines Manual § 4A1.2, cmt. n.3 (2002).
Because Walker’s two offenses were separated by an intervening arrest and more
than three years, Walker’s case falls squarely under the scope of the first sentence of the
note and the offenses are not considered related despite their having been consolidated for
sentencing.
This court decided this issue in United States v. Hallman, 23 F.3d 821 (3d Cir.
1994). In that case, as here, the appellant argued that his previous offenses were related
because they were consolidated for sentencing. We rejected that contention and
held that consolidated sentencing for previous offenses does not make them related where
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a defendant was arrested at different times for the offenses. Id. at 825. Applying
Hallman here, we hold that the District Court did not err in treating Walker as a career
offender.
III.
Walker next challenges the District Court’s denial of his request for a two-level
downward adjustment for acceptance of responsibility. After W alker pled guilty to
possessing at least five grams of crack cocaine with intent to distribute, he requested
independent testing of the composition of the drugs. The District Court held that
Walker’s plea, and his multiple admissions during his colloquy that the controlled
substance was crack, provided a sufficient basis for the court to find that the controlled
substance was in fact crack cocaine. It was the court’s view that, by contesting this
finding for purposes of sentencing, Walker had falsely denied relevant conduct, thereby
demonstrating that he did not accept responsibility.
We review a district court’s factual determination with respect to acceptance of
responsibility under a clearly erroneous standard. United States v. Muhammad, 146 F.3d
161, 167 (3d Cir. 1998); see also United States Sentencing Guidelines Manual § 3E1.1,
cmt. n.5 (2002) (“The sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility. For this reason, the determination of the sentencing judge is
entitled to great deference on review.”).
Walker’s plea and his admissions of possessing crack cocaine during his colloquy
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provided the District Court with ample grounds to conclude that the substance in
Walker’s possession was crack cocaine. See United States v. Faulks, 143 F.3d 133, 138-
39 (3d Cir. 1998) (holding that a voluntary plea constitutes an admission of all material
facts alleged in the indictment); United States v. Powell, 113 F.3d 464, 470 (3d Cir. 1997)
(finding that a plea and admissions during a colloquy provided district court with
sufficient evidentiary basis for factual determination).
When Walker requested an independent test of the composition of the drugs, he
contested a fact that the court had properly determined to be true. A guilty plea does not
create an entitlement to a reduction for acceptance of responsibility. United States v.
Ortiz, 878 F.2d 125, 128 (3d Cir. 1989). Under note 1(a) to the Sentencing Guidelines
§3E.1.1, “a defendant who falsely denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner inconsistent with acceptance of
responsibility.” In other cases in which defendants have contested a trial court’s factual
findings, we have upheld the district courts’ decisions to deny a reduction of
responsibility. See, e.g., United States v. Price, 13 F.3d 711, 735 (3d Cir. 1994) (holding
that a defendant who contested factual findings did not accept responsibility); Ortiz, 878
F.2d at 128 (holding that a defendant who would not accept the facts presented against
him after a guilty plea had not accepted responsibility). Thus, the District Court in this
case was clearly within its discretion to deny Walker a reduction in sentencing for
acceptance of responsibility.
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IV.
Walker next complains of the District Court’s decision to deny him the opportunity
to litigate the amount of drugs he possessed for purposes of sentencing. There is no basis
for this contention. The District Court sentenced Walker based on his guilty plea and his
status as a career offender. Walker’s plea and admissions during his colloquy provided a
sound evidentiary basis for the District Court to conclude that he possessed in excess of
five grams of crack cocaine. The Government stipulated that, for purposes of sentencing,
Walker possessed the minimum quantity punishable under the statute. It was Walker’s
status as a career offender, not the quantity of drugs he possessed in excess of five grams,
that raised his sentencing level to 34. Walker’s reliance on Apprendi for his argument is
groundless because his penalty was not increased beyond the statutory maximum of forty
years and because it was based on prior convictions, which need not be proved beyond a
reasonable doubt for sentencing. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
V.
Finally, Walker argues that the District Court erred by not resolving all disputed
matters. Once again there is no basis for this claim. The District Court heard Walker’s
arguments on every issue he raised both prior to and during the sentencing hearing,
including whether he was a career offender under the sentencing guidelines, whether he
had lost his acceptance of responsibility downgrade, and whether the parties could litigate
the amount of drugs. The District Court had sound legal and factual bases for its findings
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on these issues. We reject Walker’s argument to the contrary.
VI.
For the reasons set forth, we will affirm the judgment of sentence.
TO THE CLERK:
Please file the foregoing opinion.
/s/Dolores K. Sloviter
Circuit Judge
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