United States v. Jason Christopher Walker

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14522
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cr-00056-LGW-JEG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
JASON CHRISTOPHER WALKER,
a.k.a. Weezey,
lllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(July 11, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Jason Christopher Walker appeals his convictions and total 225-month
sentence for three counts of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1); one count of possession of an unregistered
firearm, in violation of 26 U.S.C. §§ 5841, 5861(d); and one count of unlawful
transfer of a firearm, in violation of 26 U.S.C. §§ 5812, 5861(e). First, he argues
that the district court clearly erred in overruling his Batson objection. Second, he
argues that the court abused its discretion in removing an empaneled juror due to
his prior knowledge of the underlying investigation. Third, he argues that the
court’s supplemental jury instruction was erroneous. Fourth, he argues that the
magistrate judge erred in denying his motion to sever the counts in the indictment.
Fifth, he argues that the court erred in applying the armed career criminal statutory
sentencing enhancement. Sixth and finally, he argues that the court clearly erred
in refusing to apply an acceptance of responsibility sentence reduction and thereby
punished him for going to trial.
I.
A district court’s resolution of a Batson objection that turns on credibility is
entitled to great deference and is reviewed only for clear error. United States v.
Hill, 643 F.3d 807, 837-38 (11th Cir. 2011). “A district court’s findings regarding
whether a peremptory strike was exercised for a discriminatory reason largely
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involve credibility determinations and are therefore entitled to great deference.”
United States v. Novaton, 271 F.3d 968, 1001 (11th Cir. 2001).
Under the Equal Protection Clause, the government may not “challenge
potential jurors solely on account of their race or on the assumption that black
jurors as a group will be unable impartially to consider the [government]’s case
against a black defendant.” Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712,
1719 (1986). The district court applies a three-step analysis in evaluating equal
protection challenges to the government’s use of peremptory strikes. Hill, 643
F.3d at 837. First, a defendant must make a prima facie showing of purposeful
discrimination based upon a prohibited ground. Id. Second, upon such a showing,
the government must articulate a nondiscriminatory explanation for the challenge.
Id. Third, the trial court must determine if the defendant established purposeful
discrimination. Id. Throughout, the ultimate burden of persuasion rests with the
defendant. Id. Generally, the defendant must show that the government attempted
to exclude “as many black persons as it could from the jury.” Id. at 839.
We generally will not address an argument, raised for the first time on
appeal, that “there were similarly situated white venire members whom the
prosecution did not strike.” United States v. Houston, 456 F.3d 1328, 1338 (11th
Cir. 2006). The record on appeal would likely be insufficient to consider such an
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argument, and the district court is not required to sua sponte “draw comparisons
that no party asked it to draw.” Id. at 1339.
Here, even assuming arguendo that Walker made out a prima facie case
below, the district court did not clearly err in overruling Walker’s Batson
challenge. The government articulated legitimate race-neutral reasons for its
peremptory challenges—namely, that the first prospective juror was unemployed,
and the second was not dressed appropriately for court and had not received a high
school diploma. The court properly relied on its independent observations of both
the prosecutor and the challenged jurors in determining that the government’s
proffered explanations were credible, and nothing in the record suggests
otherwise. Three black venire members were not challenged by the prosecutor.
Insofar as Walker now argues that there were similarly situated white jurors who
were not challenged by the prosecution, this argument was not before the district
court, the record is otherwise silent, and we will not address it on appeal.1
II.
A district court’s decision to remove a juror is reviewed only for abuse of
discretion. United States v. Augustin, 661 F.3d 1105, 1129 (11th Cir. 2011). The
court may excuse a juror and replace him with an alternate if, prior to
1
In any event, we find no merit to this contention.
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deliberations, the juror is found to be “unable” or “disqualified” to perform his
duties. United States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir. 1986). Absent a
showing of bias or prejudice to the defendant, we will not disturb the district
court’s decision. United States v. De La Vega, 913 F.2d 861, 869 (11th Cir.
1990). Prejudice includes discharge of a juror without factual support or for a
legally irrelevant reason. Id. The trial judge “does not need a defendant’s consent
to replace a juror with an alternate before the jury retires; all that is required is a
reasonable cause for the replacement.” Fajardo, 787 F.2d at 1526.2
Here, the district court did not abuse its discretion in removing the juror.
After opening statements, the juror said that he was familiar with the underlying
undercover investigation. Specifically, two of his restaurant’s former employees
frequented the storefront to buy cigarettes and, following the arrests, had told him
that their friends were “set up” in “an entrapment type thing.” Although the juror
ultimately said that he would base his verdict solely on the evidence presented at
trial, he had initially stated that he was unsure if he would be able to set aside this
prior information. The court, based on its own observations of the juror during
2
Walker cites the standard for striking a juror when the jury has already begun
deliberations. In that situation, we apply a more stringent standard because of the danger that a
dissenting juror may be excused based on the court’s “mistaken view that the juror is engaging in
impermissible nullification.” Augustin, 661 F.3d at 1129. However, as Walker acknowledges,
the juror in this case was excused well before deliberations, and thus the heightened standard is
not applicable here.
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questioning, found that he was incapable of disregarding the prior information and
deliberating impartially. We find no abuse of discretion in the court’s decision to
excuse a juror who had previous knowledge of some of the facts underlying
Walker’s case.
III.
We ordinarily review for abuse of discretion the district court’s response to
questions from the jury. United States v. Phaknikone, 605 F.3d 1099, 1107 (11th
Cir. 2010). Additionally, a district court’s refusal to give a requested instruction is
generally reversible error only where (1) the requested instruction was a correct
statement of the law, (2) its subject matter was not substantially covered by other
instructions, and (3) the failure to give the requested instruction seriously impaired
the defendant’s ability to defend himself. United States v. Carrasco, 381 F.3d
1237, 1242 (11th Cir. 2004). There generally is a “strong presumption” that jurors
follow instructions given to them by the district court. See Hill, 643 F.3d at 829.
Here, Walker did not object to the district court’s supplemental instruction.
Although we review this objection only for plain error, see United States v.
Chisholm, 73 F.3d 304, 307 (11th Cir. 1996), we find no error at all by the district
court. The court expressly instructed the jury to consider the supplemental
instruction along with all the previously given charges, and nothing in the record
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casts any doubt on the “strong” presumption that the jury followed its instructions.
See Hill, 643 F.3d at 829.
IV.
Walker contends that the magistrate and district court erred by not granting
Walker’s motion to sever his charges. We will reverse only where the district
court abused its discretion and the defendant suffered compelling prejudice.
United States v. Hersh, 297 F.3d 1233, 1243 (11th Cir. 2002).
It seems unlikely that Walker properly objected to the magistrate’s findings,
see Fed. R. Crim. P. 59(a); United States v. Schultz, 565 F.3d 1353, 1360 (11th
Cir. 2009), but even addressing the merits, we find no abuse of discretion in the
district court’s decision. The underlying facts of the three transactions overlapped
significantly with one another, and conducting separate trials would clash
significantly with our interest in judicial economy and administration. See United
States v. Kopituk, 690 F.2d 1289, 1318 (11th Cir. 1982).
V.
We review de novo questions of statutory interpretation, including whether
offenses count as separate felonies for purposes of the enhanced sentence
provision of the Armed Career Criminal Act (“ACCA”). United States v. Lee, 208
F.3d 1306, 1307 (11th Cir. 2000). Under the ACCA, a defendant is subject to a
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fifteen-year statutory minimum sentence where he both violated 18 U.S.C.
§ 922(g) and has three prior convictions for a violent felony or serious drug
offense, “committed on occasions different from one another.” 18 U.S.C.
§ 924(e)(1).
Generally, burglary constitutes a violent felony for purposes of the ACCA.
18 U.S.C. § 924(e)(2)(B)(ii). The district court, in applying the provisions of the
ACCA to a prior conviction to which the defendant pleaded guilty, should
generally look only to “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26,
125 S. Ct. 1254, 1263 (2005); United States v. Sneed, 600 F.3d 1326, 1332-33
(11th Cir. 2010) (ruling that Shepard also limits the evidence that the court can
consider in determining whether the underlying crimes occurred on different
occasions).
As long as the predicate crimes were successive rather than simultaneous,
“they constitute separate criminal episodes for purposes of the ACCA.” Lee, 298
F.3d at 1307. Crimes are “successive” where they were separated by a meaningful
opportunity to desist the criminal activity and reflected “distinct aggressions,”
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particularly where the defendant committed the crimes in different places. Id.
(quotation omitted).
Here, the district court did not err in applying the armed career criminal
sentence enhancement under the ACCA. Walker’s prior indictment alleged that
the burglaries occurred at four different storage units located at two different
addresses. None of the burglaries could have been committed simultaneously.
See United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998).
Indeed, Walker does not dispute this conclusion. Rather, he argues only
that he might have been convicted for being an accessory after the fact, rather than
for being the principal perpetrator of the four burglaries. Walker provides no
Shepard documents to support this bald assertion. See Sneed, 600 F.3d at 1332-
33. The indictments for all four counts of burglary stated that Walker “without
authority and with the intent to commit a theft therein, entered a building.” The
district court did not err by relying on these Shepard documents to conclude that
Walker was the perpetrator of the underlying burglaries.
VI.
We have held that, “[b]ecause demonstration of whether or not the
defendant has personally accepted responsibility for his criminal conduct requires
a consideration of both objective factors and subjective considerations of the
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defendant’s demeanor and sincerity, the district court’s determination will not be
overturned unless it is without foundation.” United States v. Castillo-Valencia,
917 F.2d 494, 500 (11th Cir. 1990). Although a defendant cannot be punished by
a more severe sentence because he exercised his constitutional right to proceed to
trial, the simple fact that he “was given a longer sentence after trial than he might
well have received had he plea bargained is not sufficient to show that he was
penalized for going to trial.” Cole v. Wainwright, 614 F.2d 67, 69 (5th Cir. 1980).
Section 3E1.1 of the Guidelines states that the offense level is decreased by
two points if the defendant “clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G § 3E1.1(a). The commentary to § 3E1.1 explains that the
adjustment “is not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1,
cmt. 2. “Section 3E1.1(a) is not a punishment; rather, the reduction for acceptance
of responsibility is a reward for those defendants who express genuine remorse for
their criminal conduct.” United States v. Carroll, 6 F.3d 735, 740 (11th Cir.
1993).
However, there are “rare situations” where a defendant who proceeded to
trial could qualify for a downward adjustment, such as where a defendant went to
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trial “to assert and preserve issues that do not relate to factual guilt (e.g., to make a
constitutional challenge to a statute or a challenge to the applicability of a statute
to his conduct).” Id. at 741. Additionally, a defendant is not barred as a matter of
law from receiving the adjustment “merely because he asserted an entrapment
defense at trial, even though some courts have viewed the assertion of an
entrapment defense as the virtual antithesis of acceptance of responsibility.”
Joiner v. United States, 103 F.3d 961, 963 (11th Cir. 1997).
Here, the district court did not clearly err in refusing to apply an acceptance-
of-responsibility sentence reduction. The court found, in light of all the facts and
circumstances, that Walker had not displayed any “indication of contrition.”
Rather, Walker had proceeded to trial where he argued, among other things, that
the undercover ATF agents induced him to sell and that someone else had cut the
barrel of a shotgun that he sold to the agents. Additionally, unobjected-to facts in
the presentence investigation report alleged that Walker declined to cooperate with
the probation officer even after his convictions at trial.
Finally, nothing indicates that the court imposed a total 225-month sentence
to punish Walker for exercising his right to trial. To the contrary, the court
explicitly stated that Walker’s sentence was in no way affected by his choice to go
to trial, but instead reflected the seriousness of his criminal history and his
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personal circumstances. See Carroll, 6 F.3d at 740.
AFFIRMED.
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