United States v. Walker , 844 F.3d 1253 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 4, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 15-4171
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)
_________________________________
Jeannette F. Swent, Assistant United States Attorney (John W. Huber,
United States Attorney, with her on the briefs), Office of the United States
Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-Appellant.
Scott Keith Wilson, Assistant Federal Public Defender, (Kathryn N. Nester,
Federal Public Defender, with him on the brief), Office of the Federal
Public Defender, Salt Lake City, Utah, for Defendant-Appellee.
_________________________________
Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
The government appeals the sentence of Mr. John Eugene Walker, a
serial bank robber who pleaded guilty to two counts of bank robbery. See
18 U.S.C. § 2113(a). Mr. Walker attributed his criminal history to an
addiction to drugs and alcohol. Hoping to overcome this addiction, Mr.
Walker asked for an opportunity to attend in-patient treatment before he
was sentenced. The district court agreed and the treatment program
appeared to be successful. Mr. Walker’s success in the treatment program
led the district court to impose a sentence of time served, giving credit for
the 33 days spent in pretrial detention.
In our view, this sentence was unreasonably short based on the
statutory sentencing factors and our precedent. As a result, we reverse.
1. The abuse-of-discretion standard
Though district courts have broad discretion at sentencing, the
sentence must be substantively reasonable. United States v. Hanrahan, 508
F.3d 962, 969 (10th Cir. 2007). Substantive reasonableness focuses on the
length of the sentence and requires that sentences be neither too long nor
too short. Id. The reasonableness of a sentence is reviewable under the
abuse-of-discretion standard. United States v. Friedman, 554 F.3d 1301,
1307 (10th Cir. 2009).
In reviewing a sentence for substantive reasonableness, we recognize
that the job of sentencing criminal defendants is difficult. The court must
individualize sentences without creating unwarranted sentencing
disparities. And the court must consider the seriousness of crimes while
recognizing the uniqueness of the individuals committing crimes.
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In carrying out these difficult tasks, sentencing judges enjoy a unique
perspective and a superior opportunity to interact with the defendant. See
Gall v. United States, 552 U.S. 38, 51-52 (2007). In this case, the
sentencing court sincerely tried to craft a just sentence. In doing so,
however, the court placed inadequate weight on the factors required by
Congress. Under those factors, the sentence was substantively
unreasonable.
2. Alleged waiver of the government’s sentencing arguments
Mr. Walker makes two waiver arguments.
First, Mr. Walker urges waiver by the government’s failure to object
to postponement of the sentencing. This postponement allowed Mr. Walker
to obtain substance-abuse treatment.
In postponing the sentencing, the district court indicated that (1) it
would sentence Mr. Walker after he attended treatment and (2) a successful
recovery might influence the ultimate sentencing decision. The
government’s failure to challenge the postponement does not mean that the
government waived a challenge to the eventual sentence. After all, the
government could justifiably acquiesce in the postponement but object to a
later sentence of time served.
Second, Mr. Walker argues that the government (1) failed to argue
that his recent rehabilitation should be discounted in light of his extensive
criminal history and drug and alcohol abuse and (2) acquiesced in a
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sentence below the guideline range by acknowledging that a sentence of
more than ten years would be excessive.
Generally, claims of substantive reasonableness need not be raised in
district court. United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th
Cir. 2006). An exception exists if the government invited the error. United
States v. Mancera-Perez, 505 F.3d 1054, 1058 (10th Cir. 2007). But the
government did not invite error. The government simply agreed that a
sentence of more than ten years would be excessive; there was no
suggestion that a time-served sentence would be sufficient.
Nor did the government waive its challenge by failing to object to
consideration of Mr. Walker’s post-offense rehabilitation. Even now, the
government does not object to the consideration of Mr. Walker’s recent
progress. Instead, the government argues that this progress could not
justify a time-served sentence. For this argument, the government had no
reason to object to any consideration of Mr. Walker’s recent progress in
drug treatment.
The government did not waive its argument on substantive
reasonableness.
3. The statutory sentencing factors
The sentencing court’s discretion is constrained by Congress, which
requires consideration of seven factors:
1. Offense and offender characteristics;
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2. the need for a sentence to reflect the basic aims of sentencing,
namely (a) “just punishment” (retribution), (b) deterrence,
(c) incapacitation, and (d) rehabilitation;
3. the sentences legally available;
4. Sentencing Commission Guidelines;
5. Sentencing Commission policy statements;
6. the need to avoid unwarranted sentencing disparities; and
7. the need for restitution.
Rita v. United States, 551 U.S. 338, 347-48 (2007); see 18 U.S.C.
§ 3553(a).
Our review of this sentence for substantive reasonableness is
informed by the district court’s consideration of these factors and
explanation for the sentence. United States v. Park, 758 F.3d 193, 201 (2d
Cir. 2014) (per curiam). Applying the factors, the district court imposed a
sentence of “time served.” We conclude that the sentence of time served,
33 days in pretrial detention, was unreasonably short.
Offense and offender characteristics. The district court
acknowledged that the offenses were serious, robbery of two banks. This
factor weighs against a time-served sentence. See United States v.
Friedman, 554 F.3d 1301, 1309 (10th Cir. 2009).
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The court also considered the defendant’s history and characteristics.
Mr. Walker has admittedly committed more than a dozen bank robberies.
See Def.’s Sentencing Mem. at 1-2 (May 6, 2014), ECF No. 30 (“On the
one hand, [Mr. Walker has] committed more than a dozen bank robberies in
his lifetime. . . .”). Nonetheless, the court viewed the defendant’s history
and characteristics to support leniency because Mr. Walker
 had successfully completed a program to overcome addiction to
alcohol and drugs,
 had joined a faith-based community, which provided him with
support, 1
 had a supportive family, and
 had employment.
Appellant’s App’x vol. I at 73-74.
These factors could reasonably support leniency. Mr. Walker
attributed his history of robbing banks to addiction. And, according to
defense counsel, Mr. Walker had remained sober for eighteen months when
he appeared for sentencing. See id. at 50 (defense counsel stating at
sentencing that Mr. Walker “has 18 months of sobriety”). 2
1
Though religion is an impermissible sentencing factor, a district
court may consider the changes in a defendant’s life following a religious
conversion. See United States v. Clay, 483 F.3d 739, 744 (11th Cir. 2007).
2
We note that Mr. Walker had once overcome his addiction for a
three-year period before relapsing and robbing two banks.
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This factor points both ways: The nature of the offense weighs
strongly against a time-served sentence, and the offender’s characteristics
could reasonably support leniency.
The need for a sentence to reflect the basic aims of sentencing. The
court must consider whether the sentence would reflect the seriousness of
the offense and promote respect for the law. 18 U.S.C. § 3553(a)(2)(A).
Thus, the length of the sentence should reflect the “harm done” and “the
gravity of the defendant’s conduct.” S. Rep. No. 98-225, at 75 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3258. As noted above, bank robbery
is a serious crime.
The district court also had to consider the need for a just punishment.
18 U.S.C. § 3553(a)(2)(A). Mr. Walker states that he was punished by his
33 days in pretrial detention and 13 months in a residential treatment
program. But the pretrial detention and residential treatment did not
constitute punishment. Mr. Walker was temporarily detained for 33 days
because he had requested postponement of his detention hearing and
confinement was statutorily required prior to the hearing. 18 U.S.C.
§ 3142(f). And Mr. Walker wanted to attend in-patient treatment; the court
simply permitted Mr. Walker to obtain that treatment before he was
sentenced. The district court did not provide any punitive sanctions for the
two bank robberies.
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The district court must consider not only the crime’s seriousness and
the need for just punishment, but also the need to deter the defendant and
others. 18 U.S.C. § 3553(a)(2)(B). The district court concluded that a
lengthy sentence was unnecessary to deter or rehabilitate Mr. Walker. This
conclusion was reasonable. But the district court apparently dismissed the
relevance of deterrence to others: “The need to deter others, I don’t give
much stock in the fact that others are deterred by the fact that you’re sent
to prison for a long time.” Appellant’s App’x vol. I at 74.
In our view, this explanation conflicted with Congress’s directive to
sentencing judges. “General deterrence . . . is one of the key purposes of
sentencing . . . .” United States v. Medearis, 451 F.3d 918, 920 (8th Cir.
2006); see also United States v. Milo, 506 F.3d 71, 76 (1st Cir. 2007)
(“The need to deter others is under federal law a major element in criminal
sentencing.”). This purpose becomes particularly important when the
district court varies substantially from the sentencing guidelines. See
United States v. Musgrave, 761 F.3d 602, 609 (6th Cir. 2014)
(“Consideration of general deterrence is particularly important where the
district court varies substantially from the Guidelines.”).
The district court gave inadequate attention to this purpose. The
court reasonably concluded that no further prison time would be necessary
to deter Mr. Walker, but did not “give much stock” in the importance of
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general deterrence. Federal law required the court to put its skepticism
aside. 18 U.S.C. § 3553(a)(2)(B).
Finally, the court had a statutory obligation to consider the value of
incapacitation. Rita v. United States, 551 U.S. 338, 347-48 (2007). But this
factor was never mentioned at the sentencing. The value of incapacitating
Mr. Walker further supports incarceration of Mr. Walker.
Ultimately, the congressional aims of sentencing weigh against a
time-served sentence.
The sentences legally available. The district court must consider the
kinds of available sentences. 18 U.S.C. § 3553(a)(3). But this
consideration is not pertinent here.
Sentencing Commission Guidelines. Congress established the
sentencing guidelines to provide objective benchmarks for the selection of
an appropriate sentence. Kimbrough v. United States, 552 U.S. 85, 108-09
(2007). Thus, “district courts must begin their analysis with the Guidelines
and remain cognizant of them throughout the sentencing process.” Gall v.
United States, 552 U.S. 38, 50 n.6 (2007).
Under the guidelines, Mr. Walker faced between 151 and 188 months
in prison. The district court could vary downward, but here it varied down
all the way to time served—33 days in pretrial detention—which amounted
to 0.718% of the bottom of the guideline range. This factor weighs against
a time-served sentence.
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Sentencing Commission policy statements. The district court must
also consider the Sentencing Commission’s policy statements. But the
parties have not identified any pertinent policy statements.
The need to avoid unwarranted sentencing disparities. The district
court must consider the need to avoid unwarranted disparities with other
sentences. 18 U.S.C. § 3553(a)(6). In district court and our court, Mr.
Walker has failed to identify a single other sentence of “time served” or
only a month or two in prison for someone convicted of bank robbery. Here
Mr. Walker was convicted of two bank robberies after admittedly
committing more than ten other bank robberies.
The government identifies other sentences for bank robbery that were
far longer than Mr. Walker’s sentence. Mr. Walker correctly points out that
these cases involve different facts. See United States v. Franklin, 785 F.3d
1365, 1372-73 (10th Cir. 2015). Nonetheless, Mr. Walker has not identified
a single case in which a career offender or convicted bank robber received
a sentence of 33 days (or a comparable period); Mr. Walker was a career
offender who had admittedly committed more than twelve bank robberies.
His sentence of time served creates an unwarranted sentencing disparity.
As a result, this factor weighs against a time-served sentence.
The need for restitution. Federal law ordinarily requires
consideration of a potential need for restitution (18 U.S.C.
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§ 3553(a)(2)(7)), but this appeal does not involve a judgment for
restitution.
* * *
Of the seven sentencing factors, three factors weigh against a time-
served sentence, one points both ways, and three are inapplicable. We
recognize that these factors do not necessarily bear equal weight, and the
district court bore the delicate task of balancing these factors.
In balancing these factors, the district court focused almost
exclusively on Mr. Walker’s newfound sobriety. We do not question the
materiality of this factor. But 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. See United
States v. Pugh, 515 F.3d 1179, 1194 (11th Cir. 2008) (“[A] sentence may
be unreasonable if it is grounded solely on one factor, relies on
impermissible factors, or ignores relevant factors.”); United States v.
Ward, 506 F.3d 468, 478 (6th Cir. 2007) (stating that a sentence may be
substantively unreasonable if the court failed to consider pertinent section
3553(a) factors or gave an unreasonable amount of weight to any one
factor).
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4. Precedent
We addressed a similar issue in United States v. Friedman, 554 F.3d
1301 (10th Cir. 2009). There too the defendant pleaded guilty to bank
robbery, triggering a guideline range of 151 to 188 months. Friedman, 554
F.3d at 1302, 1308. The district court imposed a sentence of 57 months,
and 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. at 1307-14.
Unlike the defendant in Friedman, Mr. Walker expressed remorse for
his crimes and his sobriety supported leniency in ways that had been absent
in Friedman. But Mr. Walker had a longer history of committing bank
robberies than did the Friedman defendant and Mr. Walker’s 33 days in
pretrial detention involved less than 2% of the prison time meted out to the
Friedman defendant. Mr. Walker admitted to more than twelve bank
robberies and had felony convictions not only for bank robbery but also for
possession of controlled substances and possession of a controlled
substance with intent to distribute. And while on release conditions, he had
absconded supervision, possessed methamphetamine, possessed
methamphetamine with intent to distribute, and driven a vehicle while
intoxicated.
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If the 57 months of incarceration in Friedman was an unreasonably
light sentence, Mr. Walker’s 33 days in pretrial detention was also
unreasonably light. Mr. Walker was more remorseful than the defendant in
Friedman, but had an even worse criminal record and was given only a
small fraction of the prison time imposed in Friedman.
5. Conclusion
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 opinion.
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15-4171, United States v. Walker
HARTZ, Circuit Judge, concurring:
I concur in the judgment and join Judge Bacharach’s opinion except in one
respect. I cannot agree that the offense-and-offender-characteristics factor is neutral in
assessing the reasonableness of Mr. Walker’s sentence. His short period of apparent
rehabilitation hardly counterbalances the seriousness of his offense and his extensive
criminal record.