U.S. v. Walker, No. 17-4103

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHOLMES, Circuit Judge.
Parties UNITED STATES of America, Plaintiff - Appellant, v. John Eugene WALKER, Defendant - Appellee.
Docket NumberNo. 17-4103
Decision Date25 March 2019

918 F.3d 1134

UNITED STATES of America, Plaintiff - Appellant,
v.
John Eugene WALKER, Defendant - Appellee.

No. 17-4103

United States Court of Appeals, Tenth Circuit.

FILED March 25, 2019


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

918 F.3d 1138

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,

918 F.3d 1139

§ 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

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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...

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  • United States v. Mier-Garces, No. 18-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 28, 2020
    ...because he advanced interdependence arguments for the first time ever in his appellate reply brief. See, e.g. , United States v. Walker , 918 F.3d 1134, 1153 (10th Cir. 2019) ("[A]rguments advanced for the first time in a litigant's reply brief will ordinarily not forestall a conclusion of ......
  • Sec. & Exch. Comm'n v. GenAudio Inc., 19-1454
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 26, 2022
    ...opening brief"—that is, we have treated such arguments as waived. Bronson , 500 F.3d at 1104 ; see, e.g. , United States v. Walker , 918 F.3d 1134, 1151 (10th Cir. 2019) ("Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived."). Si......
  • G.W. v. Boulder Valley Sch. Dist., Civil Action No. 16-cv-00374-PAB-SKC
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 18, 2019
    ...to their § 504 claims in their opening brief. Their failure to do so constitutes a waiver of those claims. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) ("Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived.");......
  • G.W. v. Boulder Valley Sch. Dist., Civil Action No. 16-cv-00374-PAB-SKC
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 17, 2019
    ...to their § 504 claims in their opening brief. Their failure to do so constitutes a waiver of those claims. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) ("Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived.");......
  • Request a trial to view additional results
40 cases
  • United States v. Mier-Garces, No. 18-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 28, 2020
    ...because he advanced interdependence arguments for the first time ever in his appellate reply brief. See, e.g. , United States v. Walker , 918 F.3d 1134, 1153 (10th Cir. 2019) ("[A]rguments advanced for the first time in a litigant's reply brief will ordinarily not forestall a conclusion of ......
  • Sec. & Exch. Comm'n v. GenAudio Inc., 19-1454
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 26, 2022
    ...opening brief"—that is, we have treated such arguments as waived. Bronson , 500 F.3d at 1104 ; see, e.g. , United States v. Walker , 918 F.3d 1134, 1151 (10th Cir. 2019) ("Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived."). Si......
  • G.W. v. Boulder Valley Sch. Dist., Civil Action No. 16-cv-00374-PAB-SKC
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 18, 2019
    ...to their § 504 claims in their opening brief. Their failure to do so constitutes a waiver of those claims. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) ("Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived.");......
  • G.W. v. Boulder Valley Sch. Dist., Civil Action No. 16-cv-00374-PAB-SKC
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 17, 2019
    ...to their § 504 claims in their opening brief. Their failure to do so constitutes a waiver of those claims. See United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) ("Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived.");......
  • Request a trial to view additional results

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