United States v. Walker, Case No. 2:13-cr-379.

Decision Date18 May 2017
Docket NumberCase No. 2:13-cr-379.
Citation252 F.Supp.3d 1269
Parties UNITED STATES of America, Plaintiff, v. John Eugene WALKER, Defendant.
CourtU.S. District Court — District of Utah

J. Drew Yeates, US Attorney's Office, Salt Lake City, UT, for Plaintiff.

MEMORANDUM DECISION AND ORDER ON RESENTENCING

Clark Waddoups, United States District Judge

Defendant John Eugene Walker appears before this court for resentencing following the Tenth Circuit Court of Appeal's reversal and remand of his prior sentence. See United States v. Walker, 844 F.3d 1253 (10th Cir. 2017).

BACKGROUND

On December 11, 2013, Mr. Walker pled guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). On May 13, 2014, the court deferred sentencing for thirteen months to allow Mr. Walker to enroll in a residential treatment program. Mr. Walker returned to the court for sentencing on September 22, 2015. Based on the Presentence Report ("PSR"), the court calculated Mr. Walker's total offense level at 29 with a criminal history category of VI, resulting in a Guideline range of 151 to 188 months with a period of one to three years of supervised release or one to five years of probation. (SeeTranscript of Sentencing ("Sentencing tr.") 11, Dkt. No. 40.) The statutory maximum for this offense is 240 months. See 18 U.S.C. § 2113(a). There is no mandatory minimum. See id.The court originally imposed a sentence of time served followed by 36 months of supervised release, a $200 special assessment, and $3,695.50 in restitution. (Sentencing tr. 39; seeJudgment, Dkt. No. 43.) The court imposed the standard conditions of supervised release, as well as special conditions relating to restitution, drug and alcohol testing, and mental health treatment. (SeeSentencing tr. 39–42; Judgment 3–6.)

The government appealed the sentence, and the Tenth Circuit reversed and remanded, finding the sentence substantively unreasonable in light of the statutory sentencing factors and precedent. Walker, 844 F.3d at 1255. In particular, the Tenth Circuit found this court focused "almost exclusively" on one sentencing factor, while "fail[ing] to give any weight to" other relevant sentencing factors. Id.at 1259.

On remand, the court ordered the parties to file resentencing memoranda analyzing the statutory factors outlined in the Tenth Circuit's decision and recommending a sentence for Mr. Walker based on those factors. (Dkt. No. 52.) The court also ordered the probation office to provide a written update of Mr. Walker's history while on supervised release and any other conduct that could bear on resentencing. (Id.) The probation office provided a written supplement to the PSR detailing Mr. Walker's conduct on supervised release, (Dkt. No. 56), and Mr. Walker and the government submitted resentencing memoranda, (Dkt. Nos. 53, 57 & 61). The court also received a victim impact statement, (Dkt. No. 62), and a written statement from Mr. Walker's mental health and substance abuse counselor, Angie Skinner.

On April 24, 2017, the court held a hearing wherein the parties presented further evidence and arguments on resentencing. The court heard testimony from twelve witnesses. The government also submitted several exhibits related to Mr. Walker's car purchase just before the robberies in May 2013 and his violations of the presentence release conditions in April 2014. The court heard argument from each side, and Mr. Walker directly addressed the court. At the conclusion of the hearing, the court indicated that it would take the resentencing decision under advisement in order to fully consider all evidence in light of the statutory sentencing factors and the Tenth Circuit's remand opinion. Neither party objected to the continuance. The court continued the resentencing to May 18, 2017.

SCOPE OF RESENTENCING

At the outset, the court must determine the appropriate scope of the mandate on resentencing. "Resentencing on remand is typically de novo, but an appellate court may limit the district court's discretion pursuant to the mandate rule." United States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). In the Tenth Circuit, "the scope of the mandate on remand ... is carved out by exclusion: unless the district court's discretion is specifically cabined, it may exercise discretion on what may be heard." United States v. West, 646 F.3d 745, 749 (10th Cir. 2011). The district court must look to the appellate court's mandate "for any limitations on the scope of remand and, in the absence of such limitations, exercise discretion in determining the appropriate scope." Id.

The remand language in this case states:

We conclude that 33 days in pretrial detention constitutes an unreasonably short sentence. For admittedly robbing two banks as an armed1 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.

Walker, 844 F.3d at 1259–60. The court finds this language constitutes a general remand for resentencing consistent with the opinion. Based on the record before it, the Tenth Circuit held the time-served sentence, after 33 days of pretrial detention, and 36 months of supervised release "unreasonably short" and "substantively unreasonable" because the sentence gave "little or no weight to the congressional values of punishment, general deterrence, incapacitation, respect for the law, and avoidance of unwarranted sentence disparities." Id.at 1259.

The Tenth Circuit's mandate does not require imposition of a specific sentence or limit this court to considering sentences only within the Guideline range. See United States v. Brown, 212 Fed.Appx. 747, 751 (10th Cir. 2007) (unpublished) (noting "[a] review of [Tenth Circuit] case law shows that [the Circuit] require[s] quite a high level of specificity to limit a remand on resentencing").2 Nor does the mandate include language prohibiting this court from varying downward from the Guideline range. Compare United States v. Webb, 98 F.3d 585 (10th Cir.1996) (concluding that the language in Webb I, 49 F.3d 636, 640 (10th Cir.1995)"The decision of the district court to depart from the applicable guideline range is therefore REVERSED. The Case is REMANDED for resentencing within the prescribed range of twenty-seven to thirty-three months imprisonment"—prohibited the district court from departing downward from the articulated range at resentencing). Therefore, following the mandate on remand, this court must appropriately weigh the specific congressional values the Tenth Circuit identified, as well as all the 18 U.S.C. § 3553(a) factors, and craft a sentence that is consistent with sentencing objectives, the Tenth Circuit's opinion, and other sentencing precedent.

Finally, in keeping with the principle of de novo sentencing on remand, this court has discretion to receive "any relevant evidence the court could have heard at the first sentencing hearing." Keifer, 198 F.3d at 801 (quoting United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996) ). As the Supreme Court recently recognized, "[s]entencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence. This durable tradition remains, even as federal laws have required sentencing courts to evaluate certain factors when exercising their discretion." Dean v. United States, 581 U.S. ––––, 137 S.Ct. 1170, 1175, 197 L.Ed.2d 490 (2017) (citing Pepper v. United States, 562 U.S. 476, 487–89, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) ). The Sentencing Reform Act specifically provides that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. The Supreme Court implemented this statutory principle in affirming that "a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range." Pepper, 562 U.S. at 481, 131 S.Ct. 1229.

Thus, before considering the sentencing factors, the court will first summarize the evidence before it on resentencing, including evidence presented at the prior sentencing and new evidence received after remand.

EVIDENCE ON RESENTENCING
A. Prior to Remand

On May 29, 2013, a grand jury indicted Mr. Walker on two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). (Dkt. No. 6.) Mr. Walker was arraigned on May 30, 2013 and requested that the detention hearing be continued. (Dkt. No. 8.) On June 25, 2013, Magistrate Judge Evelyn J. Furse held a detention hearing and ordered Mr. Walker released on conditions. (Dkt. No. 13.) On December 11, 2013, Mr. Walker pled guilty to both counts of the indictment. (Dkt No. 19.) Mr. Walker pled to the following facts:

On May 3, 2013, [Mr. Walker] robbed the U.S. Bank located at 888 East 4500 South, in Salt Lake City, Utah while dressed as a construction worker and carrying a dark colored messenger style bag. Upon entering the bank, [Mr. Walker] approached the teller counter and demanded money from the teller. The teller complied and gave [him] approximately $2152.50 in U.S. currency, which [he] put in the bag and left the bank.
On May 22, 2013, [Mr. Walker] robbed the Zions Bank located at 8955 South 700 East in Sandy, Utah while dressed in women's clothing and carrying a light blue purse. After entering the bank, [Mr. Walker] approached the teller counter, placed the purse on the teller counter and demanded money. The teller complied and gave [him] approximately $1543 in U.S.
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