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United States v. Walker

United States District Court, D. Utah, Central Division

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN EUGENE WALKER, Defendant.

          MEMORANDUM DECISION AND ORDER ON RESENTENCING

          Clark Waddoups United States District Judge.

         Judge Clark Waddoups Defendant John Eugene Walker appears before this court for resentencing following the Tenth Circuit Court of Appeal's reversal and remand of his prior sentence. See United States v. Walker, 844 F.3d 1253 (10th Cir. 2017).

         BACKGROUND

         On December 11, 2013, Mr. Walker pled guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). On May 13, 2014, the court deferred sentencing for thirteen months to allow Mr. Walker to enroll in a residential treatment program. Mr. Walker returned to the court for sentencing on September 22, 2015. Based on the Presentence Report (“PSR”), the court calculated Mr. Walker's total offense level at 29 with a criminal history category of VI, resulting in a Guideline range of 151 to 188 months with a period of one to three years of supervised release or one to five years of probation. (See Transcript of Sentencing (“Sentencing tr.”) 11, Dkt. No. 40.) The statutory maximum for this offense is 240 months. See 18 U.S.C. § 2113(a). There is no mandatory minimum. See Id. The court originally imposed a sentence of time served followed by 36 months of supervised release, a $200 special assessment, and $3, 695.50 in restitution. (Sentencing tr. 39; see Judgment, Dkt. No. 43.) The court imposed the standard conditions of supervised release, as well as special conditions relating to restitution, drug and alcohol testing, and mental health treatment. (See Sentencing tr. 39-42; Judgment 3-6.)

         The government appealed the sentence, and the Tenth Circuit reversed and remanded, finding the sentence substantively unreasonable in light of the statutory sentencing factors and precedent. Walker, 844 F.3d at 1255. In particular, the Tenth Circuit found this court focused “almost exclusively” on one sentencing factor, while “fail[ing] to give any weight to” other relevant sentencing factors. Id. at 1259.

         On remand, the court ordered the parties to file resentencing memoranda analyzing the statutory factors outlined in the Tenth Circuit's decision and recommending a sentence for Mr. Walker based on those factors. (Dkt. No. 52.) The court also ordered the probation office to provide a written update of Mr. Walker's history while on supervised release and any other conduct that could bear on resentencing. (Id.) The probation office provided a written supplement to the PSR detailing Mr. Walker's conduct on supervised release, (Dkt. No. 56), and Mr. Walker and the government submitted resentencing memoranda, (Dkt. Nos. 53, 57 & 61). The court also received a victim impact statement, (Dkt. No. 62), and a written statement from Mr. Walker's mental health and substance abuse counselor, Angie Skinner.

         On April 24, 2017, the court held a hearing wherein the parties presented further evidence and arguments on resentencing. The court heard testimony from twelve witnesses. The government also submitted several exhibits related to Mr. Walker's car purchase just before the robberies in May 2013 and his violations of the presentence release conditions in April 2014. The court heard argument from each side, and Mr. Walker directly addressed the court. At the conclusion of the hearing, the court indicated that it would take the resentencing decision under advisement in order to fully consider all evidence in light of the statutory sentencing factors and the Tenth Circuit's remand opinion. Neither party objected to the continuance. The court continued the resentencing to May 18, 2017.

         SCOPE OF RESENTENCING

         At the outset, the court must determine the appropriate scope of the mandate on resentencing. “Resentencing on remand is typically de novo, but an appellate court may limit the district court's discretion pursuant to the mandate rule.” United States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). In the Tenth Circuit, “the scope of the mandate on remand . . . is carved out by exclusion: unless the district court's discretion is specifically cabined, it may exercise discretion on what may be heard.” United States v. West, 646 F.3d 745, 749 (10th Cir. 2011). The district court must look to the appellate court's mandate “for any limitations on the scope of remand and, in the absence of such limitations, exercise discretion in determining the appropriate scope.” Id.

         The remand language in this case states:

We conclude that 33 days in pretrial detention constitutes an unreasonably short sentence. For admittedly robbing two banks as an armed[1] 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.

Walker, 844 F.3d at 1259-60. The court finds this language constitutes a general remand for resentencing consistent with the opinion. Based on the record before it, the Tenth Circuit held the time-served sentence, after 33 days of pretrial detention, and 36 months of supervised release “unreasonably short” and “substantively unreasonable” because the sentence gave “little or no weight to the congressional values of punishment, general deterrence, incapacitation, respect for the law, and avoidance of unwarranted sentence disparities.” Id. at 1259.

         The Tenth Circuit's mandate does not require imposition of a specific sentence or limit this court to considering sentences only within the Guideline range. See United States v. Brown, 212 F. App'x 747, 751 (10th Cir. 2007) (unpublished) (noting “[a] review of [Tenth Circuit] case law shows that [the Circuit] require[s] quite a high level of specificity to limit a remand on resentencing”).[2] Nor does the mandate include language prohibiting this court from varying downward from the Guideline range. Compare United States v. Webb, 98 F.3d 585 (10th Cir.1996) (concluding that the language in Webb I, 49 F.3d 636, 640 (10th Cir.1995)--“The decision of the district court to depart from the applicable guideline range is therefore REVERSED. The Case is REMANDED for resentencing within the prescribed range of twenty-seven to thirty-three months imprisonment”--prohibited the district court from departing downward from the articulated range at resentencing). Therefore, following the mandate on remand, this court must appropriately weigh the specific congressional values the Tenth Circuit identified, as well as all the 18 U.S.C. §3553(a) factors, and craft a sentence that is consistent with sentencing objectives, the Tenth Circuit's opinion, and other sentencing precedent.

         Finally, in keeping with the principle of de novo sentencing on remand, this court has discretion to receive “any relevant evidence the court could have heard at the first sentencing hearing.” Keifer, 198 F.3d at 801 (quoting United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)). As the Supreme Court recently recognized, “[s]entencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence. This durable tradition remains, even as federal laws have required sentencing courts to evaluate certain factors when exercising their discretion.” Dean v. United States, 581 U.S., 137 S.Ct. 1170, 1175 (2017) (citing Pepper v. United States, 562 U.S. 476, 487-89 (2011)). The Sentencing Reform Act specifically provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. The Supreme Court implemented this statutory principle in affirming that “a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.” Pepper, 562 U.S. at 481.

         Thus, before considering the sentencing factors, the court will first summarize the evidence before it on resentencing, including evidence presented at the prior sentencing and new evidence received after remand.

         EVIDENCE ON RESENTENCING

         A. Prior to Remand On May 29, 2013, a grand jury indicted Mr. Walker on two counts of bank robbery, in violation of 18 U.S.C. § 2113(a). (Dkt. No. 6.) Mr. Walker was arraigned on May 30, 2013 and requested that the detention hearing be continued. (Dkt. No. 8.) On June 25, 2013, Magistrate Judge Evelyn J. Furse held a detention hearing and ordered Mr. Walker released on conditions. (Dkt. No. 13.) On December 11, 2013, Mr. Walker pled guilty to both counts of the indictment. (Dkt No. 19.) Mr. Walker pled to the following facts:

On May 3, 2013, [Mr. Walker] robbed the U.S. Bank located at 888 East 4500 South, in Salt Lake City, Utah while dressed as a construction worker and carrying a dark colored messenger style bag. Upon entering the bank, [Mr. Walker] approached the teller counter and demanded money from the teller. The teller complied and gave [him] approximately $2152.50 in U.S. currency, which [he] put in the bag and left the bank.
On May 22, 2013, [Mr. Walker] robbed the Zions Bank located at 8955 South 700 East in Sandy, Utah while dressed in women's clothing and carrying a light blue purse. After entering the bank, [Mr. Walker] approached the teller counter, placed the purse on the teller counter and demanded money. The teller complied and gave [him] approximately $1543 in U.S. currency, which [he] put in the purse and left the bank.

(Dkt. No. 20.) A sentencing hearing was set for February 13, 2014, but later continued to May 13, 2014, at Mr. Walker's request. (Dkt. Nos. 19 & 23.) Mr. Walker had moved with his family to Ohio in September 2013, was having trouble finding stable work while supporting his family, and requested “some additional time to get his family in better financial shape before sentencing.” (Dkt. No. 22.)

         Shortly before sentencing, on April 28, 2014, Mr. Walker violated his conditions of presentence release by receiving a DUI and open container charge in Ohio. (See Dkt. Nos. 27 & 31.) At sentencing, Mr. Walker indicated that he had been tentatively accepted by a residential treatment program and requested that the court defer sentencing for thirteen months to allow him to complete the program. Mr. Walker had sold his car in order to pay for the program. (Dkt. No. 49, p. 25-26.) The government did not object, (Id. at 27), and the court granted the deferral, (Dkt. No. 32). On June 4, 2015, Mr. Walker successfully completed Lansing Teen Challenge, a faith-based residential treatment program in central Michigan. (Dkt. No. 36.)

         On September 22, 2015, Mr. Walker appeared before this court for sentencing. At this time, Mr. Walker had served 33 days in pretrial detention and 819 days (approximately 27 months) on pretrial/presentence release.

         The PSR submitted in advance of sentencing reports that Mr. Walker has a long criminal history, which is only surpassed by his long addiction to alcohol and drugs. (Dkt. No. 39.) Mr. Walker began using alcohol at an early age and has been an alcoholic “all his life.” (Id. at 22.) He began using methamphetamine daily in his twenties. (Id.) In 1987, Mr. Walker committed armed bank robberies in Nevada, for which he was incarcerated approximately 14 years (paroled in 2001). (Id. at 11.) While in prison, he used meth intravenously at least once per month until he got clean in 1997. (Id. at 22.) In 2004, he committed another bank robbery, this time in Utah, for which he served five years in prison (until 2009) and three years on supervised release (until 2012). (Id. at 14-15.) During the years when Mr. Walker was not incarcerated, he was convicted of several felony drug possession charges and misdemeanor DUI/intoxication charges. (See Id. at 9-17.) From April 2009 through 2012, Mr. Walker successfully completed a term of supervised release and was apparently clean for three years, but he relapsed on meth in 2013. (Id. at 14, 22.) After completing Teen Challenge in June 2015, Mr. Walker had been clean from all substances for nearly two years. (Id. at 23.)

         At sentencing, Mr. Walker first objected to the career offender enhancement in the PSR, but, after hearing argument from the parties, the court found that the enhancement applied. (See Dkt. No. 40, pp. 3-11.) The court accepted the PSR and calculated Mr. Walker's total offense level at 29 and criminal history category at VI (with or without the career offender enhancement), resulting in a Guideline range of 151 to 188 months. (See Dkt. No. 39; Dkt. No. 40, p. 11.) The government, represented by Assistant United States Attorney Drew Yeates, recommended a sentence of 120 months, noting its concern with Mr. Walker's history of bank robberies, but also a concern about a within-guideline-range sentence for a defendant of Mr. Walker's age (at that time, 55 years old). (See Dkt. No. 40, p. 12.) Mr. Walker's counsel, Federal Defender Adam Bridge, argued that considering the sentencing factors in light of Mr. Walker's extensive rehabilitation, a five-year term of probation would be sufficient to serve the purposes of sentencing in Mr. Walker's case. (See Id. at 12-16.) Mr. Walker addressed the court and spoke at length about the difference Teen Challenge had made in his life, both for his relationships with his family and his engagement with his community. (See Id. at 16-27.) Ms. Walker (formerly, Ms. Detry) also spoke to how Teen Challenge had changed Mr. Walker. She felt that Mr. Walker “did do [his] time” while in Teen Challenge, noting that the program was very long and strict, resulting in many failures by others, and employed a “work your way up” ethic under which Mr. Walker excelled. (See Id. at 27-33.) The court then discussed the § 3553(a) factors and ultimately imposed a time-served sentence to be followed by 36 months of supervised release. (Id. at 33-39; see also Judgment, Dkt. No. 43.)[3]

         B. After Remand

         On resentencing, the court has received additional evidence spanning from Mr. Walker's commission of the two bank robberies in May 2013 through his pretrial/post-release conduct as of April 2017.

         First, the Probation Office submitted a Supplemental Memorandum to the PSR. (Dkt. No. 56.) Probation Officer Renee Lewis stated that since the September 2015 sentencing, Mr. Walker has been supervised in the Northern District of Ohio. (Id. at 1.) His supervising probation officer in Ohio, Adam Jones, reported that Mr. Walker has complied with all conditions of supervision, including maintaining employment, paying restitution monthly, and completing random drug testing with no positive results. (Id.) Mr. Walker works for R.B.P. One, Inc. as a painter and has earned several raises. (Id.) He and his wife live a modest life, and he continues to work on restoring his relationships with his siblings and children. (Id. at 1-2.) Mr. Walker also continues to see a mental health counselor once a month and has remained sober with no relapses. (Id. at 2.) He attends church, self-improvement classes offered by his church, and Alcoholics Anonymous (AA) meetings. (Id.) He has led several AA groups, which have given him the opportunity to speak about his experiences and sobriety. (Id.)

         The court also received a written statement from Angie Skinner, Mr. Walker's court-ordered mental health counselor and a Licensed Clinical Christian Counselor. Ms. Skinner reports that Mr. Walker has made “significant improvement in every area of his life and has taken his recovery very seriously.” She reports that he has been clean since April 29, 2014, and that he no longer has cravings for drugs or alcohol. Mr. Walker got married on December 31, 2015. Ms. Skinner considers him “a contributing member of society” who “provides for his family and is a faithful husband and father.” Along with the church and AA meetings, Mr. Walker has completed volunteer work at his church, including painting and repairs. Ms. Skinner recalls that when she first began meeting with Mr. Walker, in November 2013, “he was a very lost and broken man who had suffered with addiction and depression for most of his life.” Ms. Skinner saw that when life became challenging or stressful, Mr. Walker would turn to drugs and alcohol to cope, which led him “to make very poor decisions.” Mr. Walker still has many stressors in his life since completing Teen Challenge, including helping his wife through three major surgeries and recovery, but now he “turns to God, his faith community and mentors for help instead of drugs or alcohol and handles all stressors in his environment appropriately.” Ms. Skinner concludes with her professional opinion that Mr. Walker “has been rehabilitated and there is absolutely no evidence to suggest otherwise, ” and that Mr. Walker “is a healthy, happy member of society.”

         Mr. Walker's resentencing memorandum also includes a small flood of letters from staff at Teen Challenge, his pastor, church and community members, members of his anti-addiction classes, his wife, his step-daughter, and his employer, all uniformly praising his character, work ethic, and the progress he has made in the past years. (See Dkt. Nos. 53-2 through 53-6.)

         Finally, the court received a victim impact statement from an unnamed victim.[4] (Dkt. No. 62.) The victim states that Mr. Walker's robbery of U.S. Bank “took my sense of security.” The victim recounts Mr. Walker yelling and aggressively demanding money. The victim was not sure if Mr. Walker was armed, but noticed his right hand close to his waist band. The victim “felt helpless” at the time and has been uneasy in public places since the robbery, feeling that he “cannot fully relax” in public because “in [his] mind there is always potential for danger.” The victim notes that Mr. Walker clearly put thought into the robbery by dressing as a construction worker, and related a belief that Mr. Walker “will attempt to rob again and hurt or kill someone next time.” The victim concludes that “[i]f someone can rob banks and then be out on the streets again within a few years, I think the justice system is failing in protecting citizens.”

         At the resentencing hearing, Assistant United States Attorneys Cy Castle and Drew Yeates appeared on behalf of the government, and Federal Defender Adam Bridge appeared on behalf of Mr. Walker. The government first called eight witnesses: Rob Scott, Heather Blanco, Stephen Rick Brimley, Chris Platts, Chanelle Torgerson, Austin Bentley, Scott Quillen, and Cameron Moss.

         1. Law Enforcement Testimony

         In 2013, Sergeant Rob Scott was a detective for the violent crimes unit of the Unified Police Department. (Transcript of Evidentiary Hearing on Resentencing (“Resentencing tr.”) 12, Dkt. No. 68.) Sgt. Scott was assigned to investigate the Zions Bank robbery. (Id.) Sgt. Scott also transported Mr. Walker from the Salt Lake County Jail to the federal courthouse on May 28, 2013. (Id. at 13.) During transportation, Sgt. Scott began talking with Mr. Walker about why he committed the robberies, and Mr. Walker said that since being released from federal prison he was having financial trouble and having a hard time making ends meet. (Id. at 14.)

         Sergeant Heather Blanco was a detective in the person crimes unit of the Sandy City Police Department in 2013, and she was also assigned to investigate the Zions Bank robbery. (Id. at 15-16.) Sgt. Blanco arrested and interviewed Mr. Walker about the robbery. After waiving his Miranda rights, Mr. Walker told Sgt. Blanco that he robbed the bank because he was having a difficult time financially and was not making enough at his job to pay all of his bills. (Id. at 16-17.) Sgt. Blanco also explained that Mr. Walker had entered the bank with a foil-lined purse, and that the purpose of the foil would be to defeat any GPS location device the bank might turn over with the money. (Id.) Sgt. Blanco further testified that Mr. Walker had a getaway driver during the robbery, but he did not assist police officers in identifying that person. (Id. at 17-18.)

         2. Employment & Car Dealership Testimony

         Stephen Rick Brimley is co-owner of Mountain States Moving and Storage Company and Quick Transportation. (Id. at 19.) Mr. Brimley employed Mr. Walker as a local truck driver from April 2, 2012 through May 23, 2013. (Id.) Mr. Walker received one raise at some point after the first four months of his employment. (Id. at 22.) Mr. Brimley found Mr. Walker to be a very helpful and good employee until the end of his tenure with the company. (Id. at 20-21.) During the last month of his employment, Mr. Brimley thought Mr. Walker became somewhat negative and confrontational, and seemed to resent having to come to work. (Id. at 21-22.) On May 3, 2013, Mr. Walker left work early, saying that he had met a girl and that they were going to move away from Utah. (Id. at 24.)

         Mr. Walker passed a pre-employment drug screen, but he was not selected to be randomly drug tested at any other time during his employment with the trucking company. (Id. at 23, 24.) The random drug screens would not have tested for alcohol. (Id. at 25.) Mr. Brimley did not recall Mr. Walker having any drug problems that the company was aware of while he was employed. (Id. at 23.) When Mr. Walker was arrested, Mr. Brimley was present and was aware that the police found drugs and syringes in Mr. Walker's lunch box. (Id. at 25.) Mr. Brimley agreed that Mr. Walker may have been using drugs before his arrest, but Mr. Brimley did not know if he was using them or selling them. (Id. at 25.)

         Chris Platts owns a car dealership at 4000 South State in Salt Lake City. (Id. at 26.) In May 2013, Mr. Platts sold Mr. Walker a green Toyota Solara with gold trim. (Id. at 27.) Mr. Walker's girlfriend (now wife) Vicky Detry was a joint applicant for the vehicle. (Id.; see Gov't Ex. 101, Dkt. No. 65.) On May 2, 2013, Mr. Walker and Ms. Detry signed a promissory note for $500 as a down payment for the vehicle. (Resentencing tr. 29; see Gov't Ex. 104, Dkt. No. 65.) Mr. Platts confirmed that Mr. Walker timely paid the down payment on or before May 16, 2013, and had possession of the car before that date. (Resentencing tr. 30.) Mr. Walker and Ms. Detry received financing for the car in the amount of $6, 454.95. (Id. at 31; see Gov't Ex. 105, Dkt. No. 65.) Mr. Platts recalled Mr. Walker as a nice guy who was pleasant to work with and on time with his obligations. (Resentencing tr. 32.) Mr. Platts did not perceive Mr. Walker to be under the influence of any drugs or alcohol during their interactions. (Id.) On the day Mr. Walker paid the $500 down payment, he brought a young man with him as an attempted referral. (Id. at 32-33.) The young man appeared to Mr. Platts to be on drugs and attempted to sell Mr. Platts a firearm, but Mr. Platts was not interested. (Id. at 33.)

         3. Victim Testimony

         Chanelle Torgerson was the first victim to testify. Ms. Torgerson worked for U.S. Bank as a head teller on May 3, 2013, during the robbery. (Id. at 35.) When Mr. Walker entered the bank screaming, Ms. Torgerson thought he was a grumpy customer and approached him to try to diffuse the situation. (Id. at 36.) Mr. Walker, who was dressed as a construction worker and had what looked like a soft cooler bag with him, was yelling “top and bottom, top and bottom” at another teller named Austin. (Id. at 36-37.) When Ms. Torgerson realized that this was a robbery, she began handing him the money in her top and bottom drawers, including a tracker. (Id. at 38.) She described Mr. Walker as ignorant and confused, and reported to officers afterwards that he was high and “not himself.” (Id. at 38, 41.) She did not like how he was screaming and being disrespectful toward them. (Id. at 38.) Mr. Walker kept screaming for more money, and Ms. Torgerson kept saying her drawers were empty, at which point Mr. Walker left. (Id. at 39.) Ms. Torgerson had never been part of a robbery before, and she testified that it has affected her life “a little bit.” (Id.) She continued: “When I go into the bank, I have to be more paranoid now that this trial has been back up and everyone is bringing it back up, like, I have anxiety when I see construction workers. I know it's weird, but it happens.” (Id.) A counselor spoke to the employees the Monday after the robbery, but Ms. Torgerson has not sought counseling since. (Id. at 40, 42.) Ms. Torgerson felt that the contact brought about by the resentencing had re-opened some of the experiences associated with the robbery. (Id. at 42.)

         Austin Bentley was shadowing tellers at the U.S. Bank on May 3, 2013. (Id. at 44-45.) He recalled that a man walked quickly into the bank dressed as a construction worker, cut in front of another customer, put a bag on the counter, and said aggressively and loudly “fill it up, top and bottom.” (Id. at 45.) At one point, Mr. Walker backed away from the counter and put his hand over his hip area, and the thought went through Mr. Bentley's head that Mr. Walker could be armed, though Mr. Bentley did not see any weapon. (Id.) When asked whether the robbery impacted his life, Mr. Bentley said: “I would say that it has. Definitely a little more anxious when I see things that I feel are out of place in, you know, public settings or banks, things like that.” (Id. at 45-46.)[5]

         Scott Quillen was the branch manager at U.S. Bank on the day of the robbery. (Id. at 48.) Mr. Quillen was sitting in the bank desk, facing the door, and initiating a wire transfer for a customer when he realized there was an irate individual, dressed in construction clothing, in the lobby. (Id. at 49.) As the branch manager, Mr. Quillen felt that he had to respond. (Id.) When Mr. Quillen approached, however, Mr. Walker started toward him and asked him if he wanted to get hit and wanted to be on the ground. (Id. at 50.) Mr. Quillen had never before experienced a bank robbery or physical threat. (Id.) After this experience, Mr. Quillen stated: “I feel a more presence of anxiety, a general nervousness. I made sure, at that location, I had moved to an office location where my desk would face a window so I could monitor the parking lot at all times for people coming in and going out of our building.” (Id. at 51.)

         Cameron Moss was a teller at Zions Bank during the robbery on May 22, 2013. (Id. at 52.) Mr. Moss recalled that, shortly before closing, a man dressed in women's clothing walked purposefully into the bank. (Id.) Mr. Moss immediately knew that a robbery was taking place and tried to alert his coworkers. (Id. at 53.) Mr. Walker asked Mr. Moss in a woman's voice to give him all of the money. (Id.) After Mr. Moss declined, Mr. Walker slammed his hands on the counter and yelled multiple times in a man's voice “give me all of your money.” (Id.) Mr. Moss pulled the silent alarm and started giving Mr. Walker money as slowly as he could. (Id. at 54-55.) Mr. Moss noticed Mr. Walker gesturing to his chest and shoulder multiple times; though he did not note the significance at the time, others in the branch afterwards said a holster was under his arm. (Id. at 54.) Mr. Walker asked for money from the other drawers, and Mr. Moss went to each until they were empty. (Id. at 55.) At some point, the branch manager approached Mr. Walker from behind, and Mr. Walker turned to yell something in reference to bodily harm at him. (Id. at 56.) Mr. Walker then left, seeming agitated and frustrated that he did not get what he needed or wanted. (Id.) Mr. Moss followed Mr. Walker to the getaway vehicle, a green Toyota Solara with gold trim and dealer's tags. (Id. at 57.) Mr. Moss wrote down the information for the car as it drove away. (Id.) Mr. Moss felt the whole situation was threatening, but noted that he had lived abroad and experienced multiple life-threatening incidents that had changed his opinion of dangerous situations. (Id. at 54, 57-58.)

         4. Probation Officer, Mental Health Counselor, and Pastor Testimony

         After the government's final witness, Mr. Walker called Adam Jones, Angie Skinner, and Danny Akers to testify via videoconference from Ohio.

         Probation Officer Adam Jones began supervising Mr. Walker in Ohio in June 2016.[6](Resentencing tr. 59-60.) Mr. Jones sees Mr. Walker quarterly and has conducted three home visits during his period of supervision, with no violations of concern. (Id. at 61, 69.) Mr. Jones reported that Mr. Walker lives in a modest home, which was formerly his father-in-law's home, with his wife and a few pets. (Id. at 61.) Mr. and Ms. Walker also sometimes care for their granddaughter. (Id.) Mr. Jones reported that Mr. Walker has complied with all conditions of supervision, made regular restitution payments, submitted to random drug screens, and attended mental health treatment. (Id. at 62.)

         The Probation Office's Post-Conviction Risk Assessment (PCRA) factors place Mr. Walker at a low to moderate risk level. (Id. at 67.) The PCRA measures various risk factors related to the offender--both static (age, criminal history) and dynamic (employment, drug and alcohol use, social networks, criminal thinking)--so the probation office can identify and address any risk areas and prevent recidivism. (Id. at 62-63.) Considering the dynamic factors, Mr. Jones was unable to identify any present criminal cognition concerns or anti-social associations in Mr. Walker's case. Rather, Mr. Jones acknowledged a number of pro-social activities and positive voluntary associations in which Mr. Walker engages, including church functions, addiction recovery meetings, and marriage classes. (Id. at 64-65.) Mr. Walker has a stable job as a painter and recently received a raise. (Id. at 66.) He has not failed any drug screen on supervised release. (Id. at 67.) Mr. Jones felt that Mr. Walker has not shown any risk of recidivating at this time and that Mr. Walker has done exceptionally well relative to other career offenders and bank robbers he supervises. (Id. at 68, 75.)

         On cross examination, Assistant U.S. Attorney Yeates asked Mr. Jones if Mr. Walker's position today would be similar to his position in May 2013, when he also had a job, girlfriend, and church. (Id. at 70-71.) Mr. Jones did not know Mr. Walker in 2013, but responded that, based on those factors, he would assume the positions were similar. (Id. at 71.) The government also submitted documentation of Mr. Walker's presentence release violation in April 2014, including citations for an open container and DUI. (Id. at 72-73; see Gov't Exs. 107-111, Dkt. No. 65.) In the citation, Mr. Walker's blood alcohol content was measured at .151. (Resentencing tr. 72; see Gov't Exs. 107, 108 & 111.) Mr. Jones could not say whether Mr. Walker was attending drug treatment at that time, though he would have been required to as a condition of his release. (Resentencing tr. 73-74.)

         The court asked Mr. Jones whether, based on his experience as a probation officer and his supervision of numerous individuals, he had an opinion about whether a long period of incarceration for Mr. Walker would provide any assistance in protecting the public. Mr. Jones opined:

I don't believe it would be beneficial in Mr. Walker's case. I think he has shown, throughout his time on supervised release, that he is amenable to supervision, that it has been effective. I realize that there are similar characteristics to when he-- when he committed the instant offense that are similar now, but I, you know, unfortunately, I don't have--I didn't have the opportunity to know Mr. Walker before to really compare the differences between the two, but I can say that, you know, he's shown a lot of progress. He's shown that he can comply with the conditions of supervision. And I would personally attribute it to his dedication to his faith and his religion that seems to have motivated him to make those positive changes in his life. So, at this time, I don't think a custody sentence would be beneficial in Mr. Walker's case. I think it would be the opposite.

(Id. at 76-77.)

         Angie Skinner, Mr. Walker's mental health and substance abuse counselor, also testified from Ohio. Ms. Skinner is a clinical Christian counselor licensed through the National Christian Counseling Association. (Id. at 77-78.) Starting in November 2013, Ms. Skinner saw Mr. Walker for counseling sessions about twice a month until he went to Teen Challenge. (Id. at 78-79.) After Teen Challenge, Ms. Skinner and Mr. Walker started meeting monthly. (Id. at 78.) Ms. Skinner discussed how their counseling sessions have changed over time. Before Teen Challenge, they would address Mr. Walker's depression, anxiety, hopelessness, fear of the future, and drug and alcohol addiction by working through his past, working toward forgiveness, and attempting to change his mindset. (Id. at 79.) Now, they focus on strategies for dealing with life stressors and keeping him accountable to his faith. (Id. at 79-80.)

         Following up on her written statement to the court, summarized supra, at 9-10, Ms. Skinner confirmed that Mr. Walker has been completely sober since April 2014 and is “completely effective in society at this point.” (Id. at 81.) When asked what makes Mr. Walker different today from May 2013, Ms. Skinner stated:

He absolutely is in a different position. When I first saw him, he had a lot of mental health issues, including depression, anxiety, hopelessness, helplessness. He had sleep problems. There were many things contributing to his issues. And now, if you look at him today, he's very stable, very consistent. Prior to Teen Challenge, I would have said that he was very inconsistent. He had anger issues. He had some trouble dealing with his emotions. I noticed that one of the people that testified that he used to work for said that a month prior to the--I believe it was the month prior to the robbery, that they noticed a change in his personality and that he was much more agitated at work.
Those were the kind of things that we would look for now, and we don't see any of that. Did I see agitation before Teen Challenge[]? Yes, I did. He struggled. He struggled to manage his life. He struggled to deal with any kind of stress, and that would tie into the drug addiction and the alcohol addiction which came out in the DUI right before he went to Teen Challenge.
Now we don't see any mood changes, we don't see any personality changes. There's no health issues. There's no money issues, you know, that we are aware of that he isn't managing. There's no stressors, and there's also no mental health issues. He is not depressed. He is not anxious. He is just a very healthy individual at this time.

(Id. at 82-83.) Ms. Skinner noted that Mr. Walker is involved in church activities on Wednesday and Sunday and addiction-related meetings on Friday nights. (Id. at 83.) She finds Mr. Walker has shifted from reactive to “very proactive” about his mental health and recovery, noting that he always contacts her to set up their monthly appointment. (Id.) Ms. Skinner observed that Mr. Walker's life has not been stress-free recently. His wife went through three major surgeries and was out of work during that time, and his step-daughter and her child were also living with them for a time. (Id. at 84.) Mr. Walker now has a strategy and support system for dealing with his life stressors:

He handles situations appropriately by leaving the situation, getting himself together, calming down, praying, doing whatever he needs to do.
He also contacts me. He also contacts his pastor. He has accountability in his life, which is a huge issue in the world of recovery. If you have accountability, you're much more likely to succeed, and he knows who he can go to, when he's struggling, for help.

(Id. at 85.) Ms. Skinner confirmed that she sees no warning signs from Mr. Walker's past in his life today. (Id.) She opined that Mr. Walker's being away from his current support system would ÔÇťabsolutely ...


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