PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Pl aintiff - Appellant,

v. JOHN EUGENE WALKER, De fendant - 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, Assi stant 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, (K athryn 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. J ohn Eugene Walker, a serial bank robber who pl eaded guilty to two counts of bank robbery. See FILED United States Court of Appeals Tenth Circuit 

### January 4, 2017 Elisabeth A. Shumaker Clerk of Court2 18 U.S.C. § 2113(a). Mr. Walker attributed his criminal history to an addiction to drugs and alcohol. Hopi ng to overcome this addiction, Mr. Walker asked for an opportunity to atte nd in-patient trea tment before he was sentenced. The dist rict court agreed and the treatment program appeared to be successf ul. Mr. Walker’s success in the treatment program led the district court to impose a senten ce of time served, giving credit for the 33 days spent in pretrial detention. In our view, this sentence was unreasonably shor t based on the statutory sentencing factors and our precedent. As a resu lt, we reverse. 1. The abuse-of-discretion standard Though district courts have broa d discretion at sentencing, the sentence must be substantively reasonable. United States v. Hanrahan , 508 F.3d 962, 969 (10th Cir. 2007). Substantive reas onableness focuses on the length of the sentence and requires th at sentences be neither too long nor too short. Id. The reasonableness of a sent ence 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 substa ntive reasonablene ss, we recognize that the job of se ntencing criminal defendants is difficult. The court must individualize sentences without cr eating unwarranted sentencing disparities. And the court must consid er the seriousness of crimes while recognizing the uniquen ess of the individual s committing crimes.3 In carrying out these diffi cult 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 fact ors 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 fa ilure to object to postponement of the sentencing. This postponement al lowed Mr. Walker to obtain substance- abuse treatment. In postponing the sentencing, the district court indicated that (1) it would sentence Mr. Walker after he a ttended treatment an d (2) a successful recovery might influence the ultimate sentencing decision. The government’s failure to ch allenge the postponement does not mean that the government waived a challe nge to the even tual sentence. After all, the government could jus tifiably acquiesce in the postponement but object to a later sentence of time served. Second, Mr. Walker argu es that the government (1) failed to argue that his recent rehabilita tion should be di scounted in light of his extensive criminal history and dr ug and alcohol abuse and (2) acquiesced in a4 sentence below the guideline range by acknowledging that a sentence of more than ten years would be excessive. Generally, claims of su bstantive 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 in vited the error. United States v. Mancera-Perez , 505 F.3d 1054, 1058 (10t h 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 se ntence would be sufficient. Nor did the government wa ive its challenge by failing to object to consideration of Mr. Walker’s post-o ffense rehabilitati on. Even now, the government does not object to the consideration of Mr. Walker’s recent progress. Instead, the government argues that th is 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 no t waive its argument on substantive reasonableness. 3. The statutory sent encing 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, a nd (d) rehabilitation;
3. the sentences lega lly available;
4. Sentencing Commissi on Guidelines;
5. Sentencing Commission policy statements;

6. the need to avoid unwarranted sentenci ng 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). Ap plying the factors, the district court imposed a sentence of “time served.” We conclu de that the sentence of time served, 33 days in pretrial detention, was unreasonably short. Offense and offender characteristics . The district court acknowledged that th e offenses were serious, robbery of tw o 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 defe ndant’s history and characteristics. Mr. Walker has admittedl y 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. Walk er 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 supportiv e family, and

 had employment. Appellant’s App’x vo l. I at 73-74. These factors could reasonably support leniency . Mr. Walker attributed his history of robbing bank s to addiction. And, according to defense counsel, Mr. Walker had rema ined sober for eight een months when he appeared fo r sentencing. See id . at 50 (defense counsel stating at sentencing that Mr. Walker “has 18 months of sobriety”). 2

1 Though religion is an impermissibl e sentencing fact or, a district court may consider the ch anges in a defendant’s lif e 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 rela psing 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 s upport leniency. The need for a sentence to reflect the basi c aims of sentencing . The court must consider whet her the sentence would re flect the seriousness of the offense and promote re spect for the la w. 18 U.S.C. § 3553(a)(2)(A). Thus, the length of the sentence shou ld reflect the “har m done” and “the gravity of the defendan t’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 cons ider the need for a just punishment. 18 U.S.C. § 3553(a)(2 )(A). Mr. Walker states th at he was punished by his 33 days in pretrial detention and 13 months in a resi dential 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 postponem ent of his detention hearing and confinement was statutor ily required prior to the hearing. 18 U.S.C. § 3142(f). And Mr. Walker wanted to attend in-pa tient treatment; the court simply permitted Mr. Walk er to obtain that trea tment 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 dete r the defendant and others. 18 U.S.C. § 3553(a)(2)(B). The district court concluded that a lengthy sentence was unnecessary to dete r or rehabilitate Mr. Walker. This conclusion was reasonable. But the dist rict court apparently dismissed the relevance of deterrence to others: “The need to deter others, I don’t give much stock in the fact th at 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 explan ation conflicted with C ongress’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 fe deral law a major el ement in criminal sentencing.”). This purpose become s particularly im portant 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 im portant where the district court varies substantially from the Guidelines.”). The district court gave inadequate attention to this purpose. The court reasonably conclude d that no further prison time would be necessary to deter Mr. Walker, but did not “giv e much stock” in the importance of9 general deterrence. Federal law requir ed the court to pu t its skepticism aside. 18 U.S.C. § 3553(a)(2)(B). Finally, the court had a statutory ob ligation 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 sent encing. The value of incapacitating Mr. Walker further supports in carceration 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 benchmar ks for the selection of an appropriate sentence. Kimbrough v. United States , 552 U.S. 85, 108-09 (2007). Thus, “district cour ts must begin their analys is 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 va ry 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 guide line range. This factor weighs against a time-served sentence.10 Sentencing Commission policy statements . The district court must also consider the Sentencing Commiss ion’s policy statements. But the parties have not identified any pertinent policy statements. The need to avoid unwarrant ed 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 iden tify a single other sentence of “time served” or only a month or two in pr ison 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 ba nk robbery that were far longer than Mr. Walke r’s sentence. Mr. Walker co rrectly points out that these cases involve different facts. See United States v. Franklin , 785 F.3d 1365, 1372-73 (10th Cir. 2015 ). Nonetheless, Mr. Wa lker has not identified a single case in which a career offender or convic ted bank r obber 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 serv ed 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 po tential need for res titution (18 U.S.C.11 § 3553(a)(2)(7)), bu t this appeal does no t involve a judgment for restitution. * * *Of the seven sentencing factors, three factors weigh against a timeserved sentence, one points both wa ys, and three are inapplicable. We recognize that these fact ors do not necessarily be ar equal weight, and the district court bore the delicate task of balancing these factors. In balancing these factors, th e district court focused almost exclusively on Mr. Walker’s newfound sobriety. We do not question the materiality of this factor . But by declining to im pose any prison time, the district court effectively failed to give any weight to the congressional values of punishment, general deterre nce, incapacitation, respect for the law, and avoidance of unwarranted sent encing disparities. See United States v. Pugh , 515 F.3d 1179, 1194 (11th Ci r. 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). Th ere too the defendant pl eaded 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 ex tensive history of recidivism and lacked remorse and (2 ) the 57-month senten ce 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. Walk er’s 33 days in pretrial detention involved less than 2% of the pris on time meted out to the Friedman defendant. Mr. Walker admitted to more than twelve bank robberies and had felony c onvictions not only for bank robber y but also for possession of controlled substances and possession of a controlled substance with intent to distribute. An d while on release conditions, he had absconded supervision, possessed methamph etamine, possessed methamphetamine with intent to dist ribute, 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. Wa lker was more remorseful than the defendant in Friedman , but had an even worse criminal record and was given only a small fraction of the pr ison time imposed in Friedman

. 5. Conclusion We conclude that 33 days in pr etrial detention constitutes an unreasonably short sentence. For ad mittedly robbing tw o banks as an armed career offender, Mr . Walker would avoid any punishment and the sentence would give little or no weight to the c ongressional values of punishment, general deterre nce, incapacitation, respect for the law, and avoidance of unwarra nted sentence disparities. In these circumstances, we regard the sentence as substantively unreasonable. Reversed and remanded for resentencing consiste nt with this opinion.15-4171, United States v. Walker HARTZ, Circuit Judge, concurring: I concur in the judgment and join Ju dge 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 counterb alances the seriousness of his offense and his extensive criminal record.