United States v. Walsh
| Decision Date | 24 August 2022 |
| Docket Number | 21-1220 |
| Citation | 47 F.4th 491 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David WALSH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John C. Kocoras, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
Before Scudder, Kirsch, and Jackson-Akiwumi, Circuit Judges.
At 71 years old, David Walsh robbed a bank with a firearm and nearly robbed another a few days later. During his sentencing hearing and just after the district court announced an intended 13 year sentence, Walsh lashed out with threats of violence against the judge, the judge's family, the probation officer, and the government's attorney. The judge denied Walsh's subsequent motion to recuse, finding that Walsh's tirade was strategic and made for the purpose of getting a different sentencing judge. Over three months and several hearings later, the judge imposed a life sentence.
Walsh has appealed this sentence on two grounds. First, he contends that the life sentence is substantively unreasonable. And second, Walsh argues that his tirade required the judge's recusal. We disagree on both counts and thus affirm.
Before the instant offenses, David Walsh's criminal history included convictions for the murder of a police officer, unlawful use of loaded weapons, two burglaries, and a previous armed robbery. He has been in and out of prison since 1965, with only short stints between release from confinement and new criminal conduct. In 1965, Walsh used a crowbar to break a window and commit burglary. Three years later, Walsh committed another burglary and murdered a police officer by shooting him five times in the chest. Walsh was paroled in May 1983 and arrested 37 days later under an alias for manufacturing and/or delivering marijuana. After receiving parole from that sentence in July 1984, Walsh was arrested 22 days later, using a second alias. This time, Walsh was convicted of unlawfully using a weapon after driving into several parked vehicles and exiting his car carrying a loaded .38 caliber revolver. Officers also found a loaded 12 gauge shotgun and a loaded Uzi submachine gun in Walsh's car. Walsh received parole from that sentence in April 1987 and was arrested 11 days later under a third alias for armed robbery.
On July 14, 2018, just nine months after receiving parole on the earlier armed robbery conviction, Walsh committed the armed bank robbery at issue in this case. He donned a plastic mask, navy cap, dark clothes, and plastic gloves as he walked into a Chicago bank. After propping the door open with stoppers he brought with him, Walsh walked up to the tellers' counter and demanded cash. When the tellers hesitated, he held up a .357 caliber revolver and said, "I'm not playing." The tellers gave Walsh $3,700, and he exited the bank, retreated into a nearby alley, changed clothes, stashed his tools in a bag he had hidden between garbage cans, and left the area on public transportation without attracting attention.
Nine days later, Walsh recruited a getaway driver for another bank robbery. Unbeknownst to Walsh, however, the driver was an FBI informant. The next day, on July 24, 2018, the pair canvassed a different Chicago bank from a parking lot, and Walsh prepared his disguise; he put on the same out-fit and plastic mask that he had used in the first robbery. FBI agents then arrested Walsh and recovered a loaded .357 caliber revolver, plastic gloves, and door stoppers.
For this conduct, Walsh pled guilty to three crimes: (1) bank robbery by force or violence in violation of 18 U.S.C. § 2113(a) and (d) ; (2) use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) ; and (3) unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Because of the COVID-19 pandemic, the district court granted Walsh's motion to proceed with his sentencing hearing over videoconference after making the required CARES Act findings. At the sentencing hearing, the district court announced an intended total sentence of 156 months' imprisonment, the top of the adjusted Sentencing Guidelines range. In explaining this sentence, the judge asked rhetorically, "Why the top end of the adjusted Guidelines range?" to which Walsh interrupted, saying calmly:
Because you're a filthy stinking pig, you mother-fucker, and I'd blow your fucking brains out. That was a fucking -- I not only would blow your fucking brains out, you pig, but I would kill your entire fucking family and torture and murder each and every fucking one of them, you filthy, mother-fucking lying pig mother-fucker, you.
Walsh's profanity laced rant continued from there, spanning several pages of the hearing transcript. Walsh threatened violence against the judge, his family, the probation officer, and the Assistant U.S. Attorney. Walsh also repeatedly demanded that his threats be captured in the transcript and stated that he wanted to "start the appeal."
After Walsh's tirade, the district court concluded the hearing without imposing a sentence. Walsh then filed a motion for recusal and moved to withdraw his guilty plea. A few weeks later, the district court held another hearing, at which it denied both motions. The judge found recusal inappropriate because there was a "significant possibility that Mr. Walsh's purpose in ... articulating that threat was ... to prompt a change of judges through recusal." The judge stated that it was simply "a fact" that Walsh had "shown himself to be a strategic actor" in his criminal conduct and in how he had conducted himself in the case and thus found that "the most plausible reason for a strategic actor like Mr. Walsh" to "articulate[ ] his threat in great detail" "would be to prompt recusal, in the hopes that a different judge would give him a better sentence."
The district court proceeded to hold two additional sentencing hearings and ultimately sentenced Walsh to 96 months' imprisonment on the bank robbery and unlawful possession convictions and life imprisonment on the § 924(c) conviction for use of a firearm during a crime of violence, concluding that Walsh had shown himself "in both word and deed to be an incorrigibly violent offender and a capable and strategic one at that." In considering the 18 U.S.C. § 3553(a) factors, the district court emphasized the seriousness of Walsh's criminal conduct in this case, his extensive criminal history and contempt for the law, the serious threat of recidivism, and the danger he posed to the public. Walsh has appealed, arguing that the life sentence is substantively unreasonable and that recusal was required.
We review the substantive reasonableness of a sentence under an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We "will not reverse unless the district court's sentence falls outside the broad range of objectively reasonable sentences in the circumstances." United States v. Daoud , 980 F.3d 581, 591 (7th Cir. 2020) (citation omitted). Because "[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a)" in each particular case, the fact that we may reasonably think a different sentence more appropriate "is insufficient to justify reversal." Gall , 552 U.S. at 51, 128 S.Ct. 586 (citation omitted).
In reviewing a sentence, we "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. "[T]here is no precise formula for deciding whether the basis for exceeding the range is proportional to the sentence's deviation from the range." United States v. Bridgewater , 950 F.3d 928, 935 (7th Cir. 2020). But a district court "must give serious consideration to the extent of any departure from the Guidelines and ... explain his conclusion that an unusually lenient or unusually harsh sentence is appropriate in a particular case with sufficient justifications." Gall , 552 U.S. at 46, 128 S.Ct. 586. At the same time, we do not apply a presumption of unreasonableness to sentences outside the Guidelines range, and we "give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Id. at 51, 128 S.Ct. 586. Moreover, "a district court's decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply." Kimbrough v. United States , 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (citation omitted).
Walsh first contends that his sentence is substantively unreasonable because it departs from sentences given to similarly situated defendants. In fashioning a sentence, a district court must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). But not all disparities are "unwarranted," United States v. Warner , 792 F.3d 847, 862 (7th Cir. 2015), so there's "plenty of room for differences in sentences when warranted under the circumstances." United States v. Brown , 732 F.3d 781, 788 (7th Cir. 2013). And when a defendant is unique, sentence comparisons can prove less helpful. See Warner , 792 F.3d at 863 (). Indeed, "every case [i]s a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Gall , 552 U.S. at 52, 128 S.Ct. 586 (quoting Koon v. United States , 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ).
Walsh correctly points out that his Guidelines range was far...
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