United States Court of Appeals
For the First Circuit
No. 07-2266
UNITED STATES OF AMERICA,
Appellee,
v.
DAWN WALKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
Mary S. McElroy, Assistant Federal Defender, on brief
for appellant.
Donald C. Lockhart, Assistant United States Attorney,
and Robert Clark Corrente, United States Attorney, on brief for
appellee.
August 13, 2008
STAHL, Circuit Judge. Dawn Walker, who pled guilty to
one count of bank robbery, challenges her sentence of 77 months'
incarceration. She argues on appeal that the district court erred
by considering her need for mental health and substance abuse
treatment when determining the length of her prison sentence, in
violation of 18 U.S.C. § 3582(a).1 We do not reach the merits of
Walker's appeal because, at sentencing, she intentionally abandoned
the objection she now raises. As a result of this waiver, "the
objection in question is unreviewable." United States v. Jimenez,
512 F.3d 1, 7 (1st Cir. 2007).
After pleading guilty to one count of bank robbery, in
violation of 18 U.S.C. § 2113(a), Walker was sentenced to 77
months' incarceration, which was at the low end of the advisory
guideline sentencing range of 77 to 96 months. Walker did not
object to the presentence report, but filed a motion and sentencing
memorandum in support of a downward departure. At the sentencing
proceeding, held on August 10, 2007, Walker's counsel elaborated on
her request for a below-guidelines sentence, explaining that a term
of no more than 48 months would "allow the amount of time necessary
for [Walker] to engage in drug treatment that's required, for her
1
18 U.S.C. § 3582(a) states: "The court, in determining
whether to impose a term of imprisonment, and, if a term of
imprisonment is to be imposed, in determining the length of the
term, shall consider the factors set forth in section 3553(a) to
the extent that they are applicable, recognizing that imprisonment
is not an appropriate means of promoting correction and
rehabilitation."
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to seek an education and for her to put her life on a track where
she can become a productive member of society." In other words,
Walker's rationale for a below-guidelines sentence was that 48
months was a sufficient length of time for her to reap the benefits
of the rehabilitative services offered within the federal prison
system.
In imposing the 77-month sentence, the district court
adopted the sentencing rationale put forth by Walker -- that her
sentence should be related to the amount of time necessary for her
to benefit from the prison system's rehabilitation services -- but
disagreed as to the length of time necessary to accomplish this
goal.2
2
The court said, in part:
I've come to the conclusion that in this case it would be
a disservice to grant you the request that your lawyer
has made for a sentence below that guideline range
because it's not enough time to give you the services
that you need.
. . .
And so I have come to the conclusion, Ms. Walker, that in
order to turn you around, in order to give you the
foundation in basic day-to-day living skills that you so
desperately need, that a sentence at the low end of the
guideline range is appropriate and just in this case.
It will give you the time that you need to clean up. It
will give you the time that you need to get some
education. It will give you the time that you need for
mental health treatment. If you can't get all of those
things under control, my concern is that I don't want to
set you up to fail by giving you too little time.
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On appeal, Walker argues that the court's sentencing
rationale violated 18 U.S.C. § 3582(a), which requires sentencing
courts to "recogniz[e] that imprisonment is not an appropriate
means of promoting correction and rehabilitation."3 However, at
sentencing, both Walker and the district court adopted the view
that the length of Walker's sentence should be informed by the
amount of time necessary for her to receive sufficient
rehabilitative services. They merely differed on the length of
time required to accomplish that goal. Therefore, because she
asserted below the same rationale that she now claims was error,
Walker has waived the argument that the rehabilitation rationale
adopted by the court violated § 3582(a).4
This is not merely a case of forfeiture, where a party
"fails to make a timely assertion of a right," United States v.
3
This circuit has not determined how 18 U.S.C. § 3582(a)
interacts with the mandate contained in 18 U.S.C. § 3553(a)(2)(D),
requiring sentencing courts to consider, among other factors, the
"need for the sentence imposed" to "provide the defendant with
needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner." Other
circuits have reached disparate conclusions on this question.
Compare United States v. Manzella, 475 F.3d 152, 157-58 (3d Cir.
2007) with United States v. Hawk Wing, 433 F.3d 622, 629-30 (8th
Cir. 2006).
4
To the extent that Walker also suggests, for the first time
on appeal, that the imposed term of incarceration was not supported
by the evidence, we disagree. On the contrary, the sentence was
adequately supported by Walker's own description of her needs, a
sealed psychiatric report, and other information in the unobjected-
to presentence report about her past conduct and failed treatment
efforts.
-4-
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002), which we would review
under plain error, id., but is actually a waiver, which occurs when
a party "intentionally relinquishes or abandons" a known right, id.
"The difference is critical: a waived issue ordinarily cannot be
resurrected on appeal." Id. Walker waived her right to object to
the district court's rehabilitation rationale by affirmatively
employing the same rationale to support her request for a below-
guidelines sentence. Where an appellant has waived an objection
below, we will not review her argument, even for plain error. See,
e.g., United States v. Ross, 77 F.3d 1525, 1542 (7th Cir. 1996).
For the foregoing reason, we affirm the sentence imposed
by the district court.
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