                                                                         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.

                                      2
      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
                                       3
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;

                                     4
     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).




                                         5
      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.

                                      6
      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.



                                      7
      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



                                      8
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.

                                       9
     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.



                                     10
§ 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).




                                      11
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.



                                        12
     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.




                                     13
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.
