In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1812

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS WALKER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 04 CR 19—Larry J. McKinney, Chief Judge.

____________

ARGUED OCTOBER 24, 2005—DECIDED MAY 17, 2006

____________

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Thomas Walker, an inmate at the

United States Penitentiary in Terre Haute, Indiana,

pleaded guilty to stabbing four correctional officers with

sharpened metal rods. A few days later he had second

thoughts and mailed a letter to the district court asking to

withdraw one of his guilty pleas. On the day of sentencing,

Walker’s attorney filed a motion to withdraw all four pleas,

asserting that Walker “felt coerced” to plead guilty because

the district court had denied his motion to transfer the case

to Indianapolis and he did not think he could get a fair trial

in Terre Haute. The district court denied Walker’s motion
2 No. 05-1812

1 United States v. Booker, 543 U.S. 220 (2005).

and sentenced him to 240 months’ imprisonment—30

months longer than the high end of the applicable advisory

Sentencing Guidelines range.

Walker argues on appeal that (1) the district court should

have permitted him to withdraw his guilty pleas, (2) under

Rule 32(h) of the FEDERAL RULES OF CRIMINAL PROCEDURE

he was entitled to advance notice before the district court

imposed a sentence that departed upward from the advisory

Guidelines range, and (3) his sentence was unreasonable. 

We affirm. The district court held that Walker had not

presented a fair and just reason to withdraw his guilty

pleas but had merely changed his mind; this ruling was not

an abuse of discretion. Rule 32(h)’s notice

requirement—which applies to “departures” from the

Guidelines, a concept that our post-Booker1 cases have

called “obsolete”—does not apply here, where the district

court selected a sentence at variance from the advisory

Guidelines range based on the sentencing factors specified

in 18 U.S.C. § 3553(a). Finally, Walker’s sentence of 240

months was reasonable and adequately explained by the

district court.

I. Background

Joseph Sims, Gary Brummett, Terry Ray, and Lloyd

McPherson, Jr., were on duty as correctional officers at the

United States Penitentiary in Terre Haute, Indiana, on

July 14, 2004. Sims was sitting on a stool monitoring a

metal detector as inmates returned to their housing units

for the evening. Walker sneaked up behind Sims and

stabbed him twice in the back with two sharpened metal

rods. Walker then ran down a corridor where Officers

Brummett, Ray, and McPherson apprehended him, but not
No. 05-1812 3

2 Assaulting a federal officer while the officer is performing

official duties carries a maximum penalty of twenty years in

prison if the defendant uses a deadly or dangerous weapon, or

inflicts bodily injury. 18 U.S.C. § 111(b).

before Walker managed to stab each of these officers as

well. All four officers were treated for their injuries at a

local hospital, with Sims requiring an overnight stay.

FBI Agent James Buckley interviewed Walker about the

assaults. After signing a written Miranda waiver, Walker

admitted to Buckley that he stabbed one officer during the

incident on July 14, and also that he swung the sharpened

metal rods at three other officers but was not sure whether

he actually stabbed any of them. Walker told Buckley he

did not know Officer Sims’s name and had not been angry

at him when he stabbed him, but simply wanted to escape

from the penitentiary.

A grand jury indicted Walker on four counts of assaulting

a federal officer with a deadly or dangerous weapon and

inflicting bodily injury in violation of 18 U.S.C. § 111(a) and

(b).2

 After his initial hearing in the district court in Terre

Haute, the Bureau of Prisons transferred Walker to its

penitentiary in Marion, Illinois, pending trial. Walker

moved to transfer his case from Terre Haute to Indianapolis. He asserted that radio and television stations in the

Terre Haute area had broadcast news accounts of the July

14 assaults during the week following the incident. Walker

argued that these news accounts, coupled with the federal

penitentiary’s status as a major employer in Terre Haute,

made it unlikely that a fair and impartial trial could be had

if the case were not transferred.

The district court held a hearing on February 8, 2005, to

consider Walker’s motion to transfer the case. Walker had

been returned to the Terre Haute penitentiary to facilitate
4 No. 05-1812

his presence at the hearing; the Bureau of Prisons intended

to keep him in Terre Haute until his trial in March. The

government opposed transferring the case, citing the

inconvenience to its witnesses, all of whom resided in the

Terre Haute area. The district court denied the motion,

proposing instead to call a larger-than-usual venire:

[T]he remedy is not transferring this case to Indianapolis, given all of the witnesses that will be here in any

case. The remedy is calling a few more jurors to see if

there is the kind of prejudice that you—that defense is

concerned about. And if of course there is, if we find

that, we’ll not convene the trial at that point and we’ll

go to Indianapolis. But at this point I don’t think it’s

necessary.

Defense counsel then asked to have Walker transferred

back to the penitentiary in Marion until the start of his

trial, citing Walker’s concerns about his safety in Terre

Haute. The court tried to reset the trial for an earlier date

so as to minimize Walker’s time in Terre Haute, but

government counsel’s schedule made that unworkable. The

following exchange then ensued:

THE COURT: I’m not going to send you back to Marion,

but what I will do is request the government to

provide—file with me the plan of providing security for

this man while he’s in the prison.

THE DEFENDANT: You don’t have to worry about no

security. You can give me a cop out now.

THE COURT: A what?

THE DEFENDANT: He can give me a cop out now.

THE COURT: What’s that?

THE DEFENDANT: I want to go ahead and plead

guilty now.
No. 05-1812 5

3 At one point during the plea colloquy, Walker denied inflicting

bodily injury on Officer McPherson but did admit that he had

assaulted him with a dangerous or deadly weapon, which by itself

was sufficient to trigger the enhanced penalties of 18 U.S.C.

§ 111(b).

At that point the court recessed for fifty-five minutes, and

Walker and his counsel prepared a petition to enter a guilty

plea without a plea agreement.

The court reconvened, and during the change-of-plea

colloquy, the judge recited the elements of the four counts

against Walker. Walker admitted that each element was

satisfied and he was guilty of four violations of § 111(a) and

(b).3

 The judge then advised Walker that he faced the

potential of twenty years in prison and a $250,000 fine on

each of the four counts, for a maximum possible sentence of

eighty years in prison and a $1,000,000 fine. Walker said he

understood these potential penalties. The court then

evaluated the voluntariness of Walker’s pleas:

THE COURT: Anybody made an offer or any promise to

you in an effort to induce you to plead guilty in this

case?

THE DEFENDANT: No.

THE COURT: Anybody attempted in any way to force

you into a plea agreement in this case?

THE DEFENDANT: No.

THE COURT: Are you pleading guilty of your own free

will because you are guilty?

THE DEFENDANT: I’m pleading guilty because I'm not

going to get a fair trial.

THE COURT: The question, sir, if that’s what—if that’s

what you think, then that is not a voluntary plea. A
6 No. 05-1812

voluntary plea is that you’re pleading guilty of your own

free will because you are guilty.

THE DEFENDANT: Yeah, man, I’m pleading guilty.

THE COURT: Because you are guilty?

THE DEFENDANT: Because I am guilty.

The government then presented the factual basis for the

pleas through the testimony of FBI Agent Buckley. Buckley

recounted the details of Walker’s confession admitting that

he assaulted the four on-duty officers with two sharpened

metal rods. Responding to questions from the court, Walker

admitted Buckley’s testimony was correct, and the court

accepted the guilty pleas on all four counts.

On February 22 the district court received a letter from

Walker stating he wished to withdraw his guilty plea on

count four of the indictment (the assault on McPherson). On

March 9, the day of Walker’s sentencing hearing, defense

counsel formally moved for leave to withdraw Walker’s

guilty pleas on all four counts. The motion asserted that

Walker’s pleas were not voluntary because he was “anguished and distraught over the Court’s denial of [his]

motion to transfer the case, and believed that he could not

receive a fair trial before an impartial jury in Terre Haute,

thus he had no choice but to plead guilty.” The court denied

the motion, concluding that “the only thing that has

changed is the defendant’s mind. And just because he has

now thought about it and thinks it is a bad idea is not

enough to show a fair and just reason for withdrawing the

plea.”

The court then proceeded to sentencing, assigning Walker

an adjusted offense level of 30 and a criminal history

category of VI under the Sentencing Guidelines. This

produced an advisory sentencing range of 168-210 months’

imprisonment. The parties agreed that the court correctly

calculated this range because Walker qualified as a career
No. 05-1812 7

4 U.S.S.G. § 4B1.1(b)(C) (“Career Offender” provision setting

Walker’s base offense level at 32 and his criminal history category

at VI). Walker’s offense level was then reduced by two levels to

reflect his acceptance of responsibility. U.S.S.G. § 3E1.1(a).

offender under the Guidelines.4 Consulting the range as

advisory, the district court concluded that it did not adequately address “the number of assaults in this case, and

the viciousness of the attack, and the complete lack of any

motivation but harm and violence for its own sake.” The

court imposed an above-Guidelines sentence of 240 months

in prison.

II. Analysis

A. Motion to withdraw guilty plea

A defendant may withdraw a guilty plea before sentence

is imposed if he presents a “fair and just reason for the

withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). The burden is on

the defendant to demonstrate a fair and just reason for plea

withdrawal. United States v. Milquette, 214 F.3d 859, 861

(7th Cir. 2000). Walker argued in the district court that his

guilty pleas were not voluntary because of the pressure he

felt as a result of the court’s denial of his motion to transfer

his case to Indianapolis. See United States v. Ellison, 835

F.2d 687, 692-93 (7th Cir. 1987) (“One ‘fair and just’ reason

for withdrawing a plea is where that plea was not voluntarily made.”). We review the district court’s denial of a plea

withdrawal motion for abuse of discretion and its underlying factual findings for clear error. Milquette, 214 F.3d at

861.

We find no clear error or abuse of discretion here. Walker

contended that he was “anguished and distraught” by the

imminent prospect of going to trial in Terre Haute, a venue

where he believed the jury would be stacked against him.

But the district court agreed to summon an extra large
8 No. 05-1812

number of potential jurors to facilitate the selection of an

impartial jury and assured Walker that if, after questioning

the oversized venire, an impartial jury could not be seated,

“we’ll not convene the trial at that point and we’ll go to

Indianapolis.” Moreover, the record reflects a thorough plea

colloquy during which Walker freely admitted that he was

guilty of the four criminal counts against him. Walker also

agreed on the record that Agent Buckley’s testimony

correctly described his admission to assaulting the four

correctional officers. Although Walker suggested at one

point during the plea colloquy that he was pleading guilty

because he thought he could not get a fair trial in Terre

Haute, the judge carefully instructed him that his guilty

pleas could not be accepted unless they were entered of his

own free will and based on his actual guilt. Walker then

assured the court that he was pleading guilty because he

was guilty.

Walker argues that the “spontaneous nature” of his

decision to plead guilty casts doubt on the sworn responses

he gave during his change-of-plea hearing. We are not

persuaded. The court recessed for fifty-five minutes between

the time Walker made his surprise announcement that he

would plead guilty and the commencement of his plea

hearing. During that extended recess, the parties drafted a

petition to enter the guilty pleas and Walker had adequate

time to reflect on his decision.

“The only rational manner in which a judge may determine whether a plea is knowingly and voluntarily made, is

to observe the defendant’s demeanor and responses to the

court’s questions and to rely on the defendant’s sworn

answers.” Ellison, 835 F.2d at 693. Accordingly, we give

great weight to what was said during the change-of-plea

colloquy between the defendant and the judge, id., and a

“defendant who presents a reason for withdrawing his plea

that contradicts the answers he gave at a Rule 11 hearing

faces an uphill battle” to show his reason for withdrawing
No. 05-1812 9

the plea is fair and just. United States v. Trussel, 961 F.2d

685, 689 (7th Cir. 1992).

The record of the change-of-plea hearing does not support

Walker’s contention that his judgment was so clouded by

emotion and fear that his guilty pleas were involuntary.

Instead, the transcript reveals that the district judge made

every effort to reassure Walker that he would get a fair trial

and to ensure that Walker was pleading guilty because he

committed the crimes described in the indictment. The

district judge observed Walker’s appearance, demeanor, and

tone of voice at the plea hearing and was in the best

position to determine whether his pleas were voluntary. See

Trussel, 961 F.2d at 689-90. The district court’s finding that

Walker’s guilty pleas were voluntary was not clearly

erroneous, and the court’s denial of the plea withdrawal

motion was not an abuse of discretion.

B. Notice under Rule 32(h)

Walker next argues that his sentence should be vacated

because the district court violated Rule 32(h) of the FEDERAL RULES OF CRIMINAL PROCEDURE when it failed to give

him reasonable notice before imposing an upward out-ofGuidelines sentence. He forfeited this issue by not objecting

in the district court, so our review is for plain error. United

States v. Woods, 301 F.3d 556, 560 (7th Cir. 2002) (citing

United States v. Olano, 507 U.S. 725, 732-34 (1993)). “We

may correct a plain error if . . . (1) there is indeed an error,

(2) it is plain, clear or obvious, and (3) it affects substantial

rights,” though we are not required to correct it. Woods, 301

F.3d at 560; FED. R. CRIM. P. 52(b).

Rule 32(h) provides as follows:

(h) Notice of Possible Departure from Sentencing

Guidelines. Before the court may depart from the

applicable sentencing range on a ground not identified
10 No. 05-1812

for departure either in the presentence report or in a

party’s prehearing submission, the court must give the

parties reasonable notice that it is contemplating such

a departure. The notice must specify any ground on

which the court is contemplating a departure.

Rule 32(h) thus applies only to “departures” from the

Sentencing Guidelines. Before the Supreme Court’s decision

in United States v. Booker, 543 U.S. 220 (2005), district

courts were required by 18 U.S.C. § 3553(b)(1) to impose

sentences that fell within the sentencing ranges prescribed

by the Guidelines except under narrow and specifically

defined circumstances. A sentencing court engaged in a

“departure” from the Guidelines when it invoked the very

limited discretion that existed under the mandatory

Guidelines regime to sentence outside the applicable

Guidelines range where one of the specified circumstances

was found to exist. See, e.g., 18 U.S.C. § 3553(b)(1) (excised

by Booker, 543 U.S. at 259); U.S.S.G. § 4A1.3 (authorizing

departures when a defendant’s criminal history score

inadequately reflects his prior criminal conduct); U.S.S.G.

§ 5K2.0 (permitting departures based on relevant circumstances that the Guidelines have overlooked entirely or

have accounted for insufficiently); United States v. Parker,

368 F.3d 963, 968 (7th Cir. 2004) (noting district court’s

“discretion under the guidelines to assign upward departures when a particular case presents atypical circumstances”).

But after Booker our cases have declared the concept of

departures “obsolete” and “beside the point.” E.g., United

States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (“Johnson’s framing of the issue as one about ‘departures’ has

been rendered obsolete by our recent decisions applying

Booker. . . . [A]fter Booker what is at stake is the reasonableness of the sentence, not the correctness of the ‘departures’ as measured against pre-Booker decisions that
No. 05-1812 11

5 We are aware of at least two other circuits that continue to

require district courts to engage in traditional departure analysis

post-Booker. See, e.g., United States v. Hawk Wing, 433 F.3d 622,

631 (8th Cir. 2006) (describing that circuit’s three-step sentencing

approach: (1) determine the appropriate Guidelines range, (2)

decide whether a “traditional departure” is called for under

U.S.S.G. §§ 4A1.3 or 5K, and (3) consider all factors listed in 18

U.S.C. § 3553(a) to determine whether a sentence outside the

advisory Guidelines range is needed). See also United States v.

Finfield, 432 F.3d 1056, 1061 n.5 (9th Cir. 2005) (citing United

States v. Menyweather, 431 F.3d 692, 695 (9th Cir. 2005) (noting

district court’s continuing obligation to engage in traditional

departure analysis)). The Eighth Circuit, which retains pre-Booker

departure analysis, distinguishes between traditional “departures” and sentences at variance from the Guidelines for purposes

of Rule 32(h). See United States v. Sitting Bear, 436 F.3d 929, 932-

33 (8th Cir. 2006) (citing United States v. Long Soldier, 431 F.3d

1120, 1122 (8th Cir. 2005) (“[N]otice pursuant to Rule 32(h) is not

required when the adjustment to the sentence is effected by a

variance, rather than by a departure.”)).

cabined the discretion of sentencing courts to depart from

guidelines that were then mandatory.”); United States v.

Laufle, 433 F.3d 981, 986-87 (7th Cir. 2006) (“Now that

Booker has rendered the Guidelines advisory and district

courts have much broader authority to sentence outside the

recommended range, departures are beside the point.”). See

also United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir.

2005); United States v. Long, 425 F.3d 482, 487 (7th Cir.

2005); United States v. Castro-Juarez, 425 F.3d 430, 434-36

(7th Cir. 2005) (looking at departure analysis “only by way

of analogy” to aid the court’s determination of the sentence’s

reasonableness). The question presented here is whether, in

light of Booker and post-Booker case law in this circuit, Rule

32(h) has any continuing application.5

Rule 32(h) has its origins in Burns v. United States, 501

U.S. 129 (1991). Burns held that an earlier version of Rule
12 No. 05-1812

6 This right was then codified at FED. R. CRIM. P. 32(a)(1) and is

now found generally at FED. R. CRIM. P. 32(i)(1).

32 impliedly required district courts to give defendants

notice before sua sponte departing upward from the Guidelines sentencing range based on grounds not identified by

the presentence report or by the government’s sentencing

recommendation. Id. at 138-39. In order to give effect to a

defendant’s Rule 32 right “to comment upon . . . matters

relating to the appropriate sentence,”6 Burns held that

defendants must be given advance notice of the grounds on

which the court might depart. Id. at 136. The Court reasoned that “the Guidelines place essentially no limit on the

number of potential factors that may warrant a departure

. . . [so] no one is in a position to guess when or on what

grounds a district court might depart, much less to ‘comment’ on such a possibility in a coherent way.” Id. at 136-37.

Rule 32(h) codified this rule from Burns.

Now that Booker has rendered the Guidelines advisory,

the concerns that animated the Court’s decision in Burns no

longer apply. The Burns Court was concerned about the

unexpected sua sponte invocation of a departure provision

as grounds to exceed an otherwise mandatory Guidelines

sentence. A sentencing court applying Booker now consults

the Guidelines as guidance for what is a wholly discretionary decision—discretion that is exercised by reference to the

broad array of sentencing factors set forth in § 3553(a).

Those factors include: the defendant’s offense conduct,

personal history, and characteristics; the need for the

sentence to provide just punishment, to protect the public,

to provide deterrence, and to rehabilitate the defendant; the

Sentencing Commission’s advisory Guidelines range and

policy statements; the need to avoid unwarranted sentencing disparities; and the need to provide restitution for

victims. 18 U.S.C. § 3553(a). The element of unfair surprise

that underlay Burns and led to the creation of Rule 32(h) is
No. 05-1812 13

7 On May 4, 2006, the government filed a letter under Rule 28(j),

FED. R. APP. P., indicating that it wished to withdraw its argument concerning the inapplicability of Rule 32(h) to out-ofGuidelines sentences post-Booker. Counsel for the government

asserted that she had “recently been made aware that the

argument is contrary to Department of Justice policy.” She

summarized Department of Justice (“DOJ”) policy as follows:

“[A]lthough Rule 32(h) does not literally apply to the district

court’s discretion to sentence defendants post-Booker, due process concerns may still require a district court to provide notice

and opportunity to be heard on any contemplated departure or

imposition of a non-Guideline sentence.” The letter then asserts

that any error in this case was harmless. The government’s new

position is noted, but does not change our view of the issue. The

DOJ apparently takes the position that while Rule 32(h) does

not “literally” apply to post-Booker out-of-Guidelines sentences, it

should be interpreted to apply because of “due process concerns.”

No due process argument was asserted in this case. It is unclear

in any event how “due process concerns” could be implicated by

the district court’s consideration of the sentencing factors set forth

in 18 U.S.C. § 3553(a), as Booker requires; notice is provided by

Booker and the statute itself.

no longer present; defendants are on notice post-Booker that

sentencing courts have discretion to consider any of the

factors specified in § 3553(a).7

Here, Walker had full knowledge of all the facts on which

the district court relied for its § 3553(a) analysis. The

district court did not unexpectedly “depart” from a generally

binding Guidelines range based on information not contained in the presentence report or the parties’ sentencing

submissions; rather, the court predictably applied Booker

and exercised its discretion to arrive at a sentence based on

the advisory Guidelines range and the discrete set of factors

specified in § 3553(a). Rule 32(h) did not apply, and the

district court therefore was not required to give advance
14 No. 05-1812

8 Although Walker did indicate to an FBI agent that he wanted

to escape from prison, nothing about these stabbings reflects any

realistic plan for getting free from confinement. The district court

reasonably concluded the attacks were merely pointless violence,

unprovoked and unmotivated by any animosity between Walker

and his victims.

notice before imposing a sentence above the advisory

Guidelines range based on the factors set forth in § 3553(a).

C. Reasonableness

Finally, Walker argues that his above-Guidelines sentence was unreasonable. We disagree. Sentencing courts

post-Booker must first consult a properly calculated advisory Guidelines range and then, by reference to the factors

specified in § 3553(a), select a sentence either inside or

outside the advisory range. See United States v. Dean, 414

F.3d 725, 729 (7th Cir. 2005). Sentences within the advisory

range are entitled to a rebuttable presumption of reasonableness, see United States v. Mykytiuk, 415 F.3d 606, 608

(7th Cir. 2005), and sentences outside the advisory range

require a more thorough explanation based on the § 3553(a)

factors. Johnson, 427 F.3d at 426. The farther a sentence

varies from the advisory range, the more compelling the

district court’s explanation must be. Id. at 426-27 (citing

Dean, 414 F.3d at 729).

There is no dispute here that the district court correctly

calculated Walker’s advisory Guidelines range. Our only

consideration is whether the district court’s 240-month

sentence—30 months longer than the high end of Walker’s

advisory range—was adequately reasoned by reference to

the § 3553(a) sentencing factors. The district court was

particularly concerned about the number of Walker’s

victims and the wanton, senseless nature of the violence.8

The district court explained that the Guidelines range
No. 05-1812 15

9 Because he qualified as a career offender under U.S.S.G.

§ 4B1.1, Walker’s adjusted offense level—after receiving a twolevel reduction for his guilty plea, U.S.S.G. § 3E1.1(a)—would

have been 30 and his criminal history category would have been

VI whether he stabbed one or four victims.

insufficiently accounted for the number of victims injured,9

and the viciousness and unprovoked nature of the attacks.

The judge also noted the particularized psychological harm

Walker caused by assaulting prison guards:

I consider the responsibility that these officers have

every day to appear and treat prisoners with respect, to

treat them with an attitude that does not expect violent

behavior every day. So there is a responsibility that

each of these officers has to think that everything is

going to be fine, and yet be on the alert for some inordinately hostile and violent, vicious behavior.

These considerations appropriately relate to the nature,

circumstances, and seriousness of the offenses and to the

need for just punishment, adequate deterrence, and the

protection of the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-

(C). The reasonableness standard of review is necessarily

deferential because the district court is uniquely positioned

to determine an appropriate sentence. See, e.g., United

States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005). The

district court here observed Walker in court during two

lengthy hearings, engaged in conversations with him on the

record, listened to him testify, and heard live testimony

from one of Walker’s victims. The 240-month sentence is

one-quarter of the 80-year statutory maximum Walker

faced. The court’s modest upward variance from the advisory sentencing range was fully consistent with the procedure we have asked district judges to follow post-Booker,

and Walker’s sentence was adequately explained and

reasonable.

AFFIRMED.
16 No. 05-1812

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-17-06