United States v. Mischa Walker , 523 F. App'x 974 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4840
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MISCHA ABSOLOMON WALKER, a/k/a Mischa Walker,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:12-
cr-00199-RWT-1)
Submitted: April 17, 2013 Decided: May 1, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICE OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Leah Jo Bressack, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mischa Absolomon Walker appeals the district court’s
judgment imposing a 120-month sentence following his guilty plea
to possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). Walker argues that his sentence is
procedurally unreasonable because the district court failed to
address specific mitigating factors raised by counsel at the
sentencing hearing. Walker also argues that his sentence is
substantively unreasonable because the district court allegedly
indicated that a lower sentence would have been sufficient. We
affirm.
We review Walker’s sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 46, 51 (2007). We first review for “significant
procedural error[s],” including “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, . . . or failing to adequately
explain the chosen sentence.” 552 U.S. at 51. To avoid
procedural error, the district court must make an
“individualized assessment,” wherein it applies the relevant
§ 3553(a) factors to the specific facts of the defendant’s case.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
2
Contrary to Walker’s assertion that the district court
failed to address specific mitigating factors raised at the
sentencing hearing, the court methodically considered the
§ 3553(a) factors and adequately explained the sentence. 1 See
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.
2006) (stating that district court must only provide “some
indication” that it considered “the potentially meritorious
arguments raised by both parties about sentencing”). Because
the district court articulated its consideration of Walker’s
prior military service, drug addiction, lack of intent to harm
others during the instant offense, remorse, and personal history
and characteristics, we conclude that Walker’s sentence is
procedurally reasonable.
Walker also argues that his sentence is substantively
unreasonable. We review the substantive reasonableness of a
sentence for abuse of discretion, “examin[ing] the totality of
the circumstances,” and, if the sentence is within the properly
calculated Guidelines range, apply a presumption on appeal that
the sentence is substantively reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010). Such a
presumption is rebutted only if the defendant shows “that the
1
Walker does not challenge on appeal the calculation of the
advisory Guidelines range of 100 to 120 months.
3
sentence is unreasonable when measured against the § 3553(a)
factors.” Montes-Pineda, 445 F.3d at 379 (internal quotation
marks omitted).
We conclude that Walker’s 120-month, within-Guidelines
sentence is substantively reasonable, as Walker fails to
overcome the appellate presumption of reasonableness afforded
his sentence. The district court carefully considered the
§ 3553(a) factors, noting the seriousness of Walker’s use of a
stolen, sawed-off shotgun while under the influence of drugs,
his violent prior convictions, his lack of respect for the law,
and the serious need to protect the public from Walker.
Moreover, the court considered the particular needs of Walker in
crafting the sentence, recommending that he receive drug abuse
and mental health treatment.
Walker argues that his sentence is substantively
unreasonable because the district court stated that a 105-month
sentence would be sufficient to meet the goals of sentencing and
therefore improperly applied a presumption in favor of the
higher Guidelines range established at sentencing. The district
court stated that it “would impose a variant sentence of 105
months were the sentencing range upon review to be determined to
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be [84 to 105 months].” (J.A. 79). 2 However, when read in
context, it is evident that the district court merely misspoke
and was articulating that it considered the 120-month sentence
to be the only sufficient sentence in Walker’s case.
Specifically, the district court stated that a sentence in the
lower range of 84 to 105 months “would not be sufficient to meet
the purposes of sentencing.” (J.A. 79). Moreover, the court
emphasized that Walker’s case represented a circumstance “that
requires the public to be protected for the maximum amount of
time.” (J.A. 79). Finally, the district court indicated that
it “simply cannot fathom a sentence that would be one minute
less than 120 months.” (J.A. 80). Accordingly, we conclude
that Walker’s argument is unpersuasive and that the sentence is
substantively reasonable. 3 See Mendoza-Mendoza, 597 F.3d at 218(stating that district court’s comments must be viewed in
context and that “where an appellate court believes that a
sentencing court did not treat the Guidelines sentence as
presumptively applicable, then there is no . . . presumption [in
favor of a Guidelines sentence,] . . . even if stray language in
2
Citations “J.A.” refer to the joint appendix filed by the
parties in this appeal.
3
We have considered Walker’s remaining arguments on appeal
and conclude they are meritless.
5
the sentencing court’s discussion, standing alone, could give
the impression that a presumption was used”).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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