U.S. v. Walker

• Decision Date: 16 January 2007
• Docket Number: No. 04-4405.,04-4405.
• Citation: 473 F.3d 71
• Parties: UNITED STATES of America v. Michael WALKER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

473 F.3d 71

UNITED STATES of America v. Michael WALKER, Appellant.

No. 04-4405.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) December 12, 2006.

Opinion filed January 16, 2007.

COPYRIGHT MATERIAL OMITTED

Enid W. Harris, Harris & Van Jura, Kingston, PA, Counsel for Appellant.

Thomas A. Marino, United States Attorney, John C. Gurganus, Jr., Assistant United States Attorney, Scranton, PA, Counsel for Appellee.

Before FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA, District Judge.^*

OPINION OF THE COURT

PADOVA, District Judge.

Michael Walker appeals his sentence from a conviction in the United States District Court for the Middle District of Pennsylvania for numerous firearms, robbery and drug charges. At issue is whether the 55-year consecutive mandatory minimum portion of his sentence on the firearms charges violates the Fifth and Eighth Amendments to the Constitution. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We will affirm.

I.

Superceding Indictment No. 03-93 charged Walker with offenses arising from the armed robbery of the Mr. Z's Food Mart in Hawley, Pennsylvania on October 26, 2001; the armed robbery of the Peoples National Bank in Nicholson, Pennsylvania on November 30, 2001; and the sale of cocaine, cocaine base ("crack"), and marijuana in Scranton, Pennsylvania between October 2001 and September 28, 2002. Walker was charged with two counts in connection with the Mr. Z's robbery: interference with commerce by robbery, in violation of 18 U.S.C. § 1951 (Count I) and using and possessing a short-barreled Harrington and Richardson 12 gauge shotgun during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count II). On October 26, 2001, Walker robbed two employees of Mr. Z's who were on their way to make a night deposit at a bank in the same strip mall. Walker demanded the deposit bag from the employees, told the employees to run, and fired a shot from his short-barreled shotgun. He made off with $9,628.21 in cash and $14,698.87 in checks, receipts and coupons.

The Superceding Indictment also charged Walker with two counts in connection with the Peoples National Bank robbery: armed bank robbery, in violation of 18 U.S.C. § 2113(d) (Count III) and using, carrying and brandishing a short-barreled Harrington and Richardson 12 gauge shotgun and a silver Bryco .380 automatic handgun during and in relation to the crime of armed bank robbery, in violation of 18 U.S.C. § 924(c) (Count IV). On November 30, 2001, Walker used both the sawed-off shotgun and the handgun to rob the Peoples National Bank. He pointed the shotgun in the faces of employees of the bank, and threw a 92-year-old man to the ground when the man did not respond to his commands. He obtained $8,863 from the bank robbery. The Superceding Indictment also charged Walker with one count of possession of an unregistered short-barreled Harrington and Richardson 12 gauge shotgun between October 2001 and February 2002, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count V).

In addition to the robbery and firearms charges, the Superceding Indictment charged Walker with four counts related to his sales of cocaine, cocaine base ("crack"), and marijuana from his home in Scranton, Pennsylvania: conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base ("crack"), cocaine, and marijuana between October 2001 and September 28, 2002, in violation of 21 U.S.C. § 846 (Count VI); distribution of cocaine base ("crack") and aiding and abetting the distribution of cocaine base ("crack") between October 2001 and September 27, 2002, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count VII); possession with intent to distribute in excess of five grams of cocaine base ("crack") and aiding and abetting the possession with intent to distribute in excess of five grams of cocaine base ("crack") on September 28, 2002, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count VIII); and possession of a Jennings .9mm pistol during and in relation to a drug trafficking offense on September 28, 2002, in violation of 18 U.S.C. § 924(c) (Count IX). In connection with these drug trafficking offenses, Walker distributed and possessed with intent to distribute 100 grams of cocaine base and 1 kilogram of cocaine and supervised the distribution of these drugs by another individual.

The drug trafficking charges (Counts VI-IX) were severed from the armed robbery and armed bank robbery charges (Counts I-V) for trial. On March 12, 2004, Walker was convicted by a jury of Counts VI-IX. On September 29, 2004, Walker was convicted by a jury of Counts I-V.

Walker was sentenced on June 16, 2005. He objected to the pre-sentence report on the grounds that the consecutive mandatory minimum sentences totaling 55 years of imprisonment for the three violations of 18 U.S.C. § 924(c), Counts II, IV and IX were unconstitutional.¹ The District Court overruled his objections and sentenced him to a term of imprisonment of 65 years, consisting of 120 months on each of Counts I, III, V, VI, VII, and VIII, to be served concurrently;² and to mandatory minimum terms of imprisonment of five years on Count IX, to be served consecutively to the term of imprisonment imposed for Counts I, III, V, VI, VII and VIII; and 25 years on each of Counts II and IV, to be served consecutively to each other and to the terms imposed for Counts I, III, V, VI, VII, VIII, and IX. The District Court also sentenced Walker to a total term of supervised release of five years, a special assessment of $900, and restitution in the amount of $24,004.72, to be paid to Mr. Z's Food Mart and to Peoples National Bank.³

II.

Walker asks us to find that his consecutive mandatory minimum sentence of 55 years of imprisonment pursuant to 18 U.S.C. § 924(c)(1) is unconstitutional because it violates the Due Process Clause of the Fifth Amendment and the doctrine of separation of powers; constitutes an irrational classification in violation of the equal protection principles of the Fifth Amendment; inflicts cruel and unusual punishment in violation of the Eighth Amendment; and was not appropriate under established rules of statutory construction. The standard of review for Walker's constitutional challenge to his mandatory minimum sentence is plenary, as is his statutory construction challenge. See United States v. Randolph, 364 F.3d 118, 121 (3d Cir.2004) ("We apply a plenary standard of review to issues of statutory interpretation, and to questions regarding a statute's constitutionality.") (citations omitted).

III.

Walker contends that the mandatory consecutive sentencing scheme of Section 924(c)(1) violates the Due Process Clause of the Fifth Amendment and the doctrine of separation of powers because it limits the court's discretion at sentencing and turns that discretion over to the executive branch. See Mistretta v. United States, 488 U.S. 361, 390-91, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (stating that responsibility for sentencing has traditionally been shared by the three branches of government). He notes that, when Section 924(c)(1) was initially passed into law in 1968, it provided for mandatory terms of imprisonment of 2 to 25 years for second or subsequent offenders, thereby giving judges considerable discretion in sentencing second or subsequent offenders. See Gun Control Act of 1968, Pub.L. No. 90-618, § 102, 82 Stat. 1223 (1968); Simpson v. United States, 435 U.S. 6, 7-8, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Walker maintains that Congress, in amending the statute to eliminate that discretion, created an unconstitutional mandatory sentencing scheme. He also argues that the mandatory consecutive sentencing scheme of Section 924(c)(1) violates the Due Process Clause because it prevents the courts from conducting individualized sentencing. He further asserts that the 55-year increase in his sentence of imprisonment attributable solely to his Section 924(c)(1) convictions cannot be consistent with due process without an individualized determination of whether his conduct and criminal history justify such a sentence.

This Court has squarely addressed and rejected the argument that mandatory sentences violate the doctrine of separation of powers and the Due Process Clause. See United States v. MacEwan, 445 F.3d 237 (3d Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 208, ___ L.Ed.2d ___ (2006); see also United States v. Frank, 864 F.2d 992, 1010 (3d Cir.1988). Regarding the separation of powers argument, MacEwan noted that the Supreme Court "has specifically held that `Congress has the power to define criminal punishments without giving the courts any sentencing discretion.'" Id. at 251 (quoting Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)). The MacEwan Court explicitly considered whether mandatory sentencing schemes vest too much power in the prosecutor and concluded that "`a legislature can exercise its right to limit judicial discretion in sentencing by bestowing on prosecutors the right to make decisions that may curtail judicial discretion.'" Id. at 252 (quoting Ehrsam v. Rubenstein, 917 F.2d 764, 767 (3d Cir. 1990)). McEwan also recognized that this Court has repeatedly rejected due process challenges to mandatory sentencing schemes on the ground that there is no due process right to individualized sentencing. See id. (citing Ehrsam, 917 F.2d at 766); Frank, 864 F.2d at 1010. Accordingly, the 55-year mandatory consecutive sentence required by Section 924(c)(1) does not violate the separation of powers doctrine or the Due Process Clause of the Fifth Amendment.

IV.

Walker also argues that his 55-year mandatory consecutive sentence for violations of Section 924(c)(1) is irrational when compared with the punishment for other, more serious federal crimes and, therefore, violates the equal protection principles of the Due Process...