                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3687




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                                                        NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                          _________________

                                     No. 02-3687
                                  _________________


                           UNITED STATES OF AMERICA,

                                            v.

                                 MICHAEL WALKER,
                                               Appellant

                                    _______________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                  (D. C. No. 99-cr-00089)
                     District Judge: Honorable James F. McClure, Jr.
                                   _________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 26, 2003

     Before: SLOVITER, AMBRO, Circuit Judges, and TUCKER,* District Judge

                                  (Filed: July 11, 2003)


                               OPINION OF THE COURT


________________

*Hon. Petrese B. Tucker, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

                                            1
SLOVITER, Circuit Judge.

       Appellant Michael Walker appeals from the judgment of sentence imposed

following his guilty plea for possession with intent to distribute in excess of five grams of

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) and 18 U.S.C. § 2.

Walker contends that the District Court erred by sentencing him as a career offender,

denying him a downward adjustment for acceptance of responsibility, and precluding him

from litigating, for the purpose of sentencing, the quantity of drugs he was charged with

possessing. We have jurisdiction to review a district court’s final sentence under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and we now affirm.

       Because we write only for the parties who are aware of the relevant facts, we need

review them only summarily.

                                              I.

       Walker, a passenger in a vehicle on Interstate 80, was arrested on March 15, 1999

by the Pennsylvania State Police who, after a consent search of the vehicle, found 13.6

grams of cocaine base (crack) and 110.3 grams of cocaine that W alker admitted were his.

In course, Walker and the two other men in the car were indicted on federal drug

offenses.

       Two months later, Walker and a colleague were discovered in a motel in South

Williamsport with 13.7 grams of crack cocaine in plain view. On June 9, 1999, a grand

jury returned a four-count Second Superseding Indictment for federal drug charges



                                              2
against Walker and his co-defendants. After withdrawing one guilty plea on July 6, 2000

in the wake of Apprendi, Walker pled guilty on March 1, 2001 to Count II of the Second

Superseding Indictment, which charged him with possession with intent to distribute in

excess of five grams of crack cocaine. Walker admitted to the material facts of the

offense several times during his colloquy with the judge.

       The Pre-Sentence Investigative Report noted that, due to several convictions from

the Philadelphia Court of Common Pleas, Walker qualified as a career offender. Walker

moved to withdraw his guilty plea after the report was compiled but the District Court

denied the motion on December 10, 2001. Walker also moved to have the drugs

independently tested to confirm that they were crack cocaine. The District Court denied

this motion on March 5, 2002 and ordered that Walker would not be granted a reduction

in the offense level for acceptance of responsibility because he had made a false assertion

that the drug in question was not crack. The District Court sentenced Walker to 262

months incarceration, the minimum allowed under the sentencing guidelines without a

downward departure.

                                             II.

       Walker argues that the District Court erred by treating him as a career offender

pursuant to the United States Sentencing Guidelines § 4B1.1. One of the two offenses

that qualified him as a career offender, possession with intent to deliver cocaine base,

resulted from an arrest on December 3, 1991. The other, delivery of cocaine base and



                                             3
possession of cocaine base, resulted from an arrest on December 16, 1994. Walker

contends these two were related cases under § 4A1.2 of the Sentencing Guidelines

because they were “were consolidated for trial or sentencing” and he was sentenced by

the Court of Common Pleas for both in one hearing on June 21, 1996.

       This Court exercises plenary review over a district court’s legal construction of the

Sentencing Guidelines. United States v. Badaracco, 954 F.2d 928, 933 (3d Cir. 1992).

Walker cites no authority other than note 3 to § 4A1.2 of the Sentencing Guidelines to

support his claim that these offenses were related. That note reads in relevant part:

          Prior sentences are not considered related if they were for offenses that
          were separated by an intervening arrest (i.e., the defendant is arrested for
          the first offense prior to committing the second offense). Otherwise, prior
          sentences are considered related if they resulted from offenses that (A)
          occurred on the same occasion, (B) were part of a single common scheme
          or plan, or (C) were consolidated for trial or sentencing.

United States Sentencing Guidelines Manual § 4A1.2, cmt. n.3 (2002).

       Because Walker’s two offenses were separated by an intervening arrest and more

than three years, Walker’s case falls squarely under the scope of the first sentence of the

note and the offenses are not considered related despite their having been consolidated for

sentencing.

       This court decided this issue in United States v. Hallman, 23 F.3d 821 (3d Cir.

1994). In that case, as here, the appellant argued that his previous offenses were related

because they were consolidated for sentencing. We rejected that contention and

held that consolidated sentencing for previous offenses does not make them related where

                                              4
a defendant was arrested at different times for the offenses. Id. at 825. Applying

Hallman here, we hold that the District Court did not err in treating Walker as a career

offender.

                                             III.

       Walker next challenges the District Court’s denial of his request for a two-level

downward adjustment for acceptance of responsibility. After W alker pled guilty to

possessing at least five grams of crack cocaine with intent to distribute, he requested

independent testing of the composition of the drugs. The District Court held that

Walker’s plea, and his multiple admissions during his colloquy that the controlled

substance was crack, provided a sufficient basis for the court to find that the controlled

substance was in fact crack cocaine. It was the court’s view that, by contesting this

finding for purposes of sentencing, Walker had falsely denied relevant conduct, thereby

demonstrating that he did not accept responsibility.

       We review a district court’s factual determination with respect to acceptance of

responsibility under a clearly erroneous standard. United States v. Muhammad, 146 F.3d

161, 167 (3d Cir. 1998); see also United States Sentencing Guidelines Manual § 3E1.1,

cmt. n.5 (2002) (“The sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.”).

       Walker’s plea and his admissions of possessing crack cocaine during his colloquy



                                              5
provided the District Court with ample grounds to conclude that the substance in

Walker’s possession was crack cocaine. See United States v. Faulks, 143 F.3d 133, 138-

39 (3d Cir. 1998) (holding that a voluntary plea constitutes an admission of all material

facts alleged in the indictment); United States v. Powell, 113 F.3d 464, 470 (3d Cir. 1997)

(finding that a plea and admissions during a colloquy provided district court with

sufficient evidentiary basis for factual determination).

       When Walker requested an independent test of the composition of the drugs, he

contested a fact that the court had properly determined to be true. A guilty plea does not

create an entitlement to a reduction for acceptance of responsibility. United States v.

Ortiz, 878 F.2d 125, 128 (3d Cir. 1989). Under note 1(a) to the Sentencing Guidelines

§3E.1.1, “a defendant who falsely denies, or frivolously contests, relevant conduct that

the court determines to be true has acted in a manner inconsistent with acceptance of

responsibility.” In other cases in which defendants have contested a trial court’s factual

findings, we have upheld the district courts’ decisions to deny a reduction of

responsibility. See, e.g., United States v. Price, 13 F.3d 711, 735 (3d Cir. 1994) (holding

that a defendant who contested factual findings did not accept responsibility); Ortiz, 878

F.2d at 128 (holding that a defendant who would not accept the facts presented against

him after a guilty plea had not accepted responsibility). Thus, the District Court in this

case was clearly within its discretion to deny Walker a reduction in sentencing for

acceptance of responsibility.



                                              6
                                            IV.

       Walker next complains of the District Court’s decision to deny him the opportunity

to litigate the amount of drugs he possessed for purposes of sentencing. There is no basis

for this contention. The District Court sentenced Walker based on his guilty plea and his

status as a career offender. Walker’s plea and admissions during his colloquy provided a

sound evidentiary basis for the District Court to conclude that he possessed in excess of

five grams of crack cocaine. The Government stipulated that, for purposes of sentencing,

Walker possessed the minimum quantity punishable under the statute. It was Walker’s

status as a career offender, not the quantity of drugs he possessed in excess of five grams,

that raised his sentencing level to 34. Walker’s reliance on Apprendi for his argument is

groundless because his penalty was not increased beyond the statutory maximum of forty

years and because it was based on prior convictions, which need not be proved beyond a

reasonable doubt for sentencing. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

                                             V.

       Finally, Walker argues that the District Court erred by not resolving all disputed

matters. Once again there is no basis for this claim. The District Court heard Walker’s

arguments on every issue he raised both prior to and during the sentencing hearing,

including whether he was a career offender under the sentencing guidelines, whether he

had lost his acceptance of responsibility downgrade, and whether the parties could litigate

the amount of drugs. The District Court had sound legal and factual bases for its findings



                                             7
on these issues. We reject Walker’s argument to the contrary.

                                           VI.

      For the reasons set forth, we will affirm the judgment of sentence.




TO THE CLERK:

             Please file the foregoing opinion.


                        /s/Dolores K. Sloviter
             Circuit Judge




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