                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2008

USA v. Walker
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4712




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-4712


                           UNITED STATES OF AMERICA

                                           v.

                            MICHAEL M. WALKER, JR.,

                                                      Appellant.


                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                      (D.C. Criminal Action No. 06-cr-00060-3E)
                    District Judge: Honorable Maurice B. Cohill, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 3, 2008



                  Before: AMBRO and GREENBERG, Circuit Judges,
                           and RODRIGUEZ,* District Judge


                          (Opinion filed: December 23, 2008)



                                       OPINION




      *
        The Honorable Joseph H. Rodriguez, Senior United States District Judge for the
District of New Jersey, sitting by designation
RODRIGUEZ, Senior District Judge

       Michael M. Walker, Jr. appeals from the sentence imposed after he pled guilty to

conspiracy to possess with intent to distribute fifty grams or more of cocaine in violation

of 21 U.S.C. § 846. Walker argues that in sentencing him to 120 months’ incarceration

followed by 60 months of supervised release, the District Court erred in failing to reduce

his criminal history points under the Sentencing Guidelines to enable him to come within

the purview of the statutory safety valve, thereby avoiding a mandatory minimum

sentence. Walker also contends that his sentence was unreasonable because the District

Court refused to apply the minor participant base offense level reduction provided by the

Sentencing Guidelines.1 Because we conclude that Walker validly waived the right to

appeal his sentence, we will affirm.

                                             I.

       As we write solely for the parties, we recite only those facts necessary to our

decision. In the spring of 2006, with the aid of a confidential informant, members of Erie

Area Gang Law Enforcement (EAGLE) FBI Task Force captured multiple controlled

buys of crack cocaine on both audio and video recording devices. The evidence gathered

demonstrated that Walker and others were involved in a drug conspiracy and that Walker,

on three separate occasions, was involved in a controlled buy of over five grams of crack

cocaine and aided and abetted the transport of 120 grams of crack cocaine to Erie,

       1
       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have appellate jurisdiction to review the sentence imposed pursuant to 18 U.S.C. § 1291
and 18 U.S.C. § 3742(a).

                                             2
Pennsylvania.

       On October 10, 2006, a federal indictment was unsealed, charging Walker and

several co-conspirators with conspiracy to possess with intent to distribute and

distribution of fifty grams or more of cocaine base in violation of 21 U.S.C. § 846 (Count

One). Walker was also charged with possession with intent to distribute and distribution

of five grams or more (Counts Two, Three, and Six) and fifty grams or more (Count

Seven) of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and

841(b)(1)(A)(iii). On August 22, 2007, Walker pleaded guilty to Count One of the

Indictment and accepted responsibility for the remaining counts, which were dismissed.

       In his plea agreement, Walker waived his right to take a direct appeal from his

conviction or sentence,2 subject to certain exceptions: if the Government appealed from

the sentence, or “[i]f (1) the sentence exceed[ed] the applicable statutory limits set forth

in the United States Sentencing Code, or (2) the sentence unreasonably exceed[ed] the

guideline range determined by the Court under the Sentencing Guidelines,” Walker could

take a direct appeal. (A12.)

       Under the 2007 Sentencing Guidelines, Walker’s base offense level was 30. He

was credited with two points for acceptance of responsibility and one point for timely

notification of his intent to enter a guilty plea, for a Total Offense Level of 27.

       Walker previously had been convicted of three separate offenses involving the

       2
         This Court “retains subject matter jurisdiction over [an] appeal by a defendant
who ha[s] signed an appellate waiver.” United States v. Gwinnett, 483 F.3d 200, 203 (3d
Cir. 2007).

                                               3
possession of marijuana or disorderly conduct. As a result of these incidents, he received

a total of four criminal history points under Guidelines §§ 4A1.1(b) and (c),3 and his

Presentence Investigation Report set his Criminal History Category at III. Thus, Walker’s

starting Guideline Range for imprisonment was calculated to be 87 to 108 months, to be

followed by a term of supervised release of three to five years. Because the statutory

mandatory minimum was ten years under 21 U.S.C. § 841(b)(1)(A)(iii), the sentencing

court found that “the guidelines sentence [was] one hundred twenty months.” (A81.) In

December of 2007, Walker was sentenced to the ten-year mandatory minimum term of

imprisonment to be followed by a five-year term of supervised release.

                                             II.

       This Court will decline to exercise jurisdiction to review the merits of a

defendant’s appeal where a defendant knowingly and voluntarily waives the right to

       3
        In 2002, Walker plead guilty to possession of marijuana and possession of drug
paraphernalia, and was sentenced to pay a $236 fine, yielding one criminal history point
under Guidelines § 4A1.1(c).
       In December of 2002, Walker plead guilty to disorderly conduct, and was
sentenced to 90 days’ probation and a $300 fine. On April 15, 2003, his probation was
revoked due to an arrest for unlawful possession of marijuana, failure to work regularly,
and failure to make regular payments on his fines. He was sentenced to 90 days’
incarceration, but given 41 days’ credit since he had been detained from January 30, 2003
due to testing positive for marijuana. Pursuant to Guidelines § 4A1.1(b), Walker was
assessed two criminal history points on the disorderly conduct.
       In June of 2003, Walker plead guilty to the unlawful possession of marijuana, and
was sentenced to 30 days’ probation and a $100 fine. In August 2003, his probation was
revoked for failure to pay the fine. In September of 2003, a warrant was issued for failure
to pay fines and court costs. In 2005, Walker was arrested and taken into custody, and
was released upon payment approximately a month later. One criminal history point was
assessed under Guidelines § 4A1.1(c).


                                             4
appeal, unless the result will work a miscarriage of justice. United States v. Gwinnett,

483 F.3d 200, 203 (3d Cir. 2007). Of course, “a sentence based on constitutionally

impermissible criteria, such as race, or a sentence in excess of the statutory maximum

sentence for the defendant’s crime, can be challenged on appeal even if the defendant

executed a blanket waiver of his appeal rights.” Id. (citation omitted).

       In the instant case, Walker acknowledged during the plea colloquy that he waived

his right to take a direct appeal. (A46-48.) It is apparent from the record that the waiver

was knowing and voluntary. (A48-56.) None of the waiver exceptions is present in this

case: the Government has not appealed, the sentence imposed does not exceed the

statutory maximum, and the mandatory minimum sentence imposed did not unreasonably

exceed the guideline range determined by the court. Although Walker’s initial guideline

range was 87 to 108 months, “[w]here a statutorily required minimum sentence is greater

than the maximum of the applicable guideline range, the statutorily required minimum

sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b).

       Further, at sentencing, in accordance with United States v. Gunter, 527 F.3d 282,

285 (3d Cir. 2008), the District Court correctly calculated Walker’s starting Guidelines

range; formally ruled on Walker’s motions regarding the Presentence Investigation

Report, noting on the record any effect the rulings had on the Guidelines calculations; and

exercised appropriate discretion by considering the relevant § 3553(a) factors.4

       4
           In this case, the District Court noted, in its Statement of Reasons,

       The Court believes that a sentence of 120 months followed by 5 years of

                                                 5
       Even if we were to invalidate the waiver in this case, we would reject Walker’s

argument that the sentencing court should have exercised discretion in interpreting the

safety valve provision, 18 U.S.C. § 3553(f). In United States v. McKoy, 452 F.3d 234,

240 (3d Cir.), cert. denied 127 S. Ct. 449 (2006), we found that Booker did not render

eligibility requirements for safety-valve sentencing relief advisory. Rather, applicability

of the safety valve continues to depend on a defendant’s criminal history without

consideration of the underlying circumstances of prior sentences. Similarly, although

U.S.S.G. § 4A1.3(b) permits a district court to reduce a defendant’s criminal history

category for overstatement of criminal history, the provision cannot be used to satisfy the

safety valve’s criminal history point requirement for one who otherwise exceeds it.

       Moreover, in imposing the mandatory minimum sentence, the sentencing court

made a finding that Walker’s criminal history was not overstated by application of more


       supervised release adequately addresses the nature and circumstances of
       this offense, as well as the history and background of the defendant. In
       particular, the Court has taken into account that Mr. Walker was involved in
       a large drug distribution ring out of Detroit. The Court has also taken into
       consideration his past convictions and juvenile adjudications set forth in the
       Presentence Report. In imposing this sentence, the Court has considered
       the kinds of sentences available, and the sentencing range set forth in the
       guidelines, including any relevant policy statements issued by the
       Sentencing Commission. This sentence also takes into account the need to
       avoid unwarranted disparities in sentencing among defendants with similar
       records who have been found guilty of similar conduct. At the same time,
       this sentence reflects the seriousness of the offense and provides just
       punishment for it; and also promotes respect for the law and affords
       adequate deterrence to criminal conduct while protecting the public from
       further crimes by the defendant.

(SA-49. Accord A88.)

                                             6
than one criminal history point, as “[h]e had eight adjudications as a juvenile, and . . five

convictions in the presentence report, plus the one that’s been before the court today. So,

I can’t . . . agree that the safety valve should not apply in this case.” (A79.) Finally, the

District Court did not err in denying Walker’s request to apply the minor participant base

level reduction provided for under U.S.S.G. § 3B1.2(b). In declining to apply a minor

role adjustment, instead imposing the mandatory minimum, the sentencing court pointed

out that Walker had stipulated to 135 grams of cocaine base, (A65), and accepted the

Government’s argument that he was one of the most active participants in supplying

crack cocaine to the confidential informant, (A69).

       In conclusion, we find that the issues Walker pursues here fall squarely within the

scope of his appellate waiver, he knowingly and voluntarily agreed to the waiver, and

enforcing the appellate waiver will not work a miscarriage of justice. See United States v.

Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (articulating three elements to be considered

when government invokes appellate waiver and defendant argues it does not bar appeal).

Accordingly, we decline to exercise our jurisdiction to review the merits of his appeal.

See, e.g., United States v. Corso, — F.3d —, 2008 WL 5205891 (3d Cir. Dec. 15, 2008)

(finding defendant’s appellate waiver precluded appeal challenging the district court's

calculation of the Guideline range).

                                              III.

       For these reasons, we affirm.




                                               7
