PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant, 

v. 

JOHN EUGENE WALKER, 

 Defendant - Appellee. 

No. 15-4171 

_________________________________ 

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 

FILED 

United States Court of Appeals

Tenth Circuit 

January 4, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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. 
3 

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 
4 

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; 
5 

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). 
6 

 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. 
7 

 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. 
8 

 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 
9 

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. 
10 

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. 
11 

§ 3553(a)(2)(7)), but this appeal does not involve a judgment for 

restitution. 

* * * 

 Of the seven sentencing factors, three factors weigh against a timeserved 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). 
12 

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. 
13 

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. 
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.