Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-27-2005
USA v. Walker
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2168
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos: 02-2168/03-1528
UNITED STATES OF AMERICA,
v.
AHMED WALKER,
a/k/a Amelios,
a/k/a Ammo
Ahmed Walker,
Appellant
______________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 00-cr-00300)
District Judge: Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
on September 28, 2004
Before: ROTH, BARRY and GARTH, Circuit Judges
(filed: June 27, 2005 )
OPINION
ROTH, Circuit Judge:
This case concerns Ahmed Walker’s direct appeal from convictions arising from a
seven count second superseding indictment issued on August 8, 2001. The indictment
charged Walker as follows: count 1 -- conspiracy to possess, use, carry, brandish, and
discharge firearms in furtherance of and during and in relation to drug trafficking, 18
U.S.C. § 924(c)(1)(A) (I), (II), (III) and § 924(o); count 3 -- possession of a firearm in
furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A) and § 924(c)(1)(C)(I); count 4 --
possessing, using, carrying, brandishing, and discharging a firearm in furtherance of drug
trafficking and during and in relation to drug trafficking, 18 U.S.C. § 924(c)(1)(A)(I),
(II), (III) and § 924(c)(1)(C)(I); count 5 -- criminal conspiracy to distribute and possess
with the intent to distribute controlled substances, 21 U.S.C. § 846; and count 6 --
distribution and possession with intent to distribute controlled substances, 21 U.S.C. §
841(a)(1). Although the government brought a seven count indictment, Ahmed Walker
was only charged in counts 1 through 6. Count 2 was dropped by the government.
Additionally, with regard to counts 2, 3, 4 and 6, the government also charged under 18
U.S.C. § 2. Walker was convicted on counts 1, 3, 4, 5, and 6. Afterwards, he was
sentenced. Walker challenges his conviction and sentencing. This appeal followed.
For the reasons stated below, we will affirm Walker’s conviction, vacate his
2
sentence, in part, and remand for a resentencing consistent with United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005).
I. Factual Background and Procedural History
As the facts are well known to the parties, we give only a brief description of the
facts and procedural posture of the case.
The underlying events of this case involved a July 18, 2000, gunfight in Lebanon,
Pennsylvania, and other events over the course of July 2000. The government alleged
that the gunfight arose from disputes among those trafficking in drugs. Walker was
indicted for the crimes described above. A jury was empaneled and on February 28,
2002, the jury returned guilty verdicts against Walker on all counts, i.e., counts 1, 3, 4, 5,
and 6. Walker filed a post-trial motion for a new trial. This motion was denied.
Walker was sentenced as follows: 240 months on count 1, and 321 months on
each of counts 5 and 6 -- with all three sentences running concurrently, 60 months on
count 3 (running consecutively with counts 1, 5, and 6), and 300 months on count 4
(running consecutively with counts 1, 3, 5 and 6). The total term for which he was to be
imprisoned following sentencing was 681 months.
The District Court’s sentencing determinations made use of facts not charged in
the indictment and not found by the jury. Citing Apprendi v. New Jersey, 530 U.S. 466
(2000), Walker objected at the time of sentencing and has again asserted this issue here
3
on direct appeal. On this ground, Walker challenges the sentences imposed under counts
1, 5 and 6. Additionally, Walker argues that the evidence is insufficient to support his
conviction on count 4. Walker argues that in applying the Sentencing Guidelines, the
District Court mistakenly included a juvenile conviction. Lastly, Walker argues that
although he made a timely objection at trial against government witnesses using his
nickname “Ammo,” his objection was denied, and the use of his nickname was
sufficiently prejudicial requiring reversal of his convictions on counts 1, 3, and 4.
II. Jurisdiction and Standards of Review
We have jurisdiction to consider the appeals of Walker’s convictions and the
sentences imposed. See 28 U.S.C. §1291 and 18 U.S.C. § 3742(a).
In Booker, the Supreme Court of the United States held that courts of appeals
should review district court departures from the sentencing guidelines under a
reasonableness standard. Booker, 125 S. Ct. at 765 (Breyer, J.).1 However, that standard
of review was limited to appellate review following resentencing after sentences are first
vacated because they mistakenly applied pre-Booker law in contravention to the Sixth
1
The United States Supreme Court’s Booker decision indicated that the
“reasonableness standard” applied not merely to appellate review of district court
departures from the guidelines, but rather, this standard applied “across the board” to all
appellate review of district court guidelines determinations. Booker, 125 S. Ct. at 765
(Breyer, J.); id. at 767 (“The courts of appeals review sentencing decisions for
unreasonableness.”).
4
Amendment as understood post-Booker.2 Id. at 769 (Breyer, J.) (holding that “if the
sentence comes before the Court of Appeals for review [after district court resentencing],
the Court of Appeals should apply the review standards set forth in this opinion.”). In this
circuit, it is now established policy that sentences applying pre-Booker law are vacated if
the defendant objected at trial or at sentencing and reasserted the argument on appeal.
See United States v. Ordaz, 398 F.3d 236, 239 (3d Cir. 2005) (holding that, in light of
Booker decision, a Booker issue argued but rejected by the district court pre-Booker and
preserved on appeal “is best determined by the District Court in the first instance [on
remand]”).3 Likewise, sentences applying pre-Booker law are generally vacated if the
Booker claim is made for the first time on direct appeal. See United States v. Davis,
407 F.3d 162, 165-66 (3d Cir. 2005) (en banc) (ordering remand for resentencing because
a Booker claim, rooted in the Sixth Amendment or in the mistaken belief that the United
States Sentencing Guidelines were mandatory, first asserted on appeal is plain error); see
2
We, of course, imply no criticism of the District Judge, who followed the law and
procedure in effect at the time of Walker’s sentencing.
3
The Davis court noted, apparently in dictum, that “[w]here a defendant preserved
a Booker claim before the district court, we will review for harmless error under
Fed. R. Crim. P. 52(a).” United States v. Davis, 407 F.3d 162, 164 n.2 (3d Cir. 2005) (en
banc). But see United States v. Booker, 543 U.S. ----, 125 S. Ct. 738, 769 (Breyer, J.) (“It
is also because, in cases not involving a Sixth Amendment violation, whether resentencing
is warranted or whether it will instead be sufficient to review a sentence for
reasonableness may depend upon application of the harmless-error doctrine.”) (emphasis
added). With regard to Freddie J. Booker’s Sixth Amendment claim, it appears that
neither the Supreme Court of the United States nor the Seventh Circuit (in prior
proceedings) applied harmless error doctrine, but rather both remanded as a matter of
right.
5
also Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases . . . pending on direct
review or not yet final . . ..”).
With respect to Walker’s sufficiency of the evidence claim, we “must sustain the
verdict of a jury if there is substantial evidence, viewed in the light most favorable to the
Government, to uphold the jury’s decision.” See United States v. Carr, 25 F.3d 1194,
1201 (3d Cir. 1994) (quoting United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992)).
Lastly, with regard to the District Court’s decision to admit certain evidence -- the
use of Walker’s nickname “Ammo” by government witnesses -- “[we] review . . . a
district court’s ruling to admit or exclude evidence, if premised on a permissible view of
the law . . . only for an abuse of discretion.” See United States v. Sokolow, 91 F.3d 396,
402 (3d Cir. 1996).
III. Discussion
A. Walker’s Apprendi/Booker Claim.
In Walker’s opening brief, he makes an Apprendi argument (Booker in
supplemental briefing) with regard to his sentencing under counts 5 and 6. The jury’s
verdict form for each count convicted him of the two alleged crimes and specifically
found with regard to each count that the quantity of cocaine base involved was 50 grams
or more. At sentencing, the District Judge made use of findings involving other drugs
6
and amounts of cocaine base the jury did not expressly pass upon. We agree that this was
plain error under Booker and vacate the sentence for counts 5 and 6. See Davis, 407 F.3d
at 164 (ordering resentencing as plain error if the district court engaged in judicial fact
finding and concomitantly “imposed a sentence greater than the maximum authorized by
the facts found by the jury alone”).
In supplemental briefing, Walker asserts for the first time an Apprendi/Booker
violation of his Sixth Amendment rights with regard to Count 1. In the District Court’s
sentencing proceedings, the District Judge, following the Sentencing Guidelines, grouped
counts 1, 5, and 6 together. With regard to counts 5 and 6, the judge used a criminal
history category of II and an offense level of 38. This provided a range of 262 to 327
months, where the statutory maximum for each count was life imprisonment. With regard
to counts 5 and 6, the judge sentenced Walker to 321 months on each count running
concurrently, an amount less than the statutory maximum, but within the guidelines. With
regard to count 1, however, the judge sentenced at the statutory maximum: 240 months --
an amount less than that provided for under the applicable guidelines range. As explained
above, on remand, the District Court will redetermine the applicable guidelines range for
counts 5 and 6. Such a redetermination may equally apply to count 1. And such a
redetermination might very well lead to a guidelines range below the 240 month statutory
maximum. Given that the three counts were originally grouped together, and given that
the judge believed that she was without any discretion to sentence anywhere but at the
7
statutory maximum for count 1 (because the guidelines range exceeded the statutory
maximum), we agree with Walker and vacate the sentence for count 1 as plain error.4 See
Davis, 407 F.3d at 166 (ordering resentencing as plain error if the district court acted in
the mistaken belief that the United States Sentencing Guidelines were mandatory).
B. Walker’s Remaining Legal Claims.
We deal with the remaining claims summarily.
Walker has taken the position that there is a “lack of any evidence of drug
trafficking crimes during [the relevant] period.” Therefore count 4 should be overturned
for insufficient evidence. We disagree.
The jury heard the following colloquy:
Government: After the Lebanon Village shooting, which was July 18th of 2000,
did you have a conversation with Ahmed Walker about that
shooting?
Sills: Yes, I talked to him before about it.
Government: When you talked to Ahmed Walker about that shooting, what did he
tell you?
4
Similarly, before sentencing, Walker objected to the Presentence Report’s
enhancement for a leadership role. This argument was brought to our attention only in a
supplemental brief. Cf. Davis, 407 F.3d at 165 (“Booker applies to all cases pending on
direct review.”). It was not put forward in Walker’s opening brief. Because we have
vacated the sentences for counts 1, 5, and 6, this court need not and does not pass upon
whether the leadership role enhancement is itself a Booker violation. More importantly,
before ruling on such a question, we would have the benefit of a post-Booker opinion of
the District Court addressing this precise question on these specific facts in the first
instance. Cf. Davis, 407 F.3d at 165 (“[W]e would be usurping the discretionary power
granted to the district courts by Booker if we were to assume that the district court would
have given [defendant] the same sentence post-Booker.”) (quoting United States v.
Oliver, 397 F.3d 369, 380 n.3 (6th Cir.2005)).
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Sills: He told me that it happened over an argument.
Government: An argument about what?
Sills: Drug territory.
....
Government: What did he tell you he did during that shootout.
Sills: He said he was shooting at the other people.
This and other evidence in the record is enough to sustain the jury’s conviction on
count 4.
Walker argues that in applying the Sentencing Guidelines, the District Court
mistakenly included a juvenile conviction. Specifically, Walker’s brief argues the
conviction gave rise to “a rehabilitation program, with anger management classes ... for
its participants and was only a limited security program. No evidence was offered to
rebut this.” Walker cites no specific guideline or statute that the District Court
misinterpreted or applied. We understand him to mean that the District Court erred in
assessing two criminal history points for this 1997 conviction because the conviction did
not give rise to actual confinement. See U.S.S.G. §§ 4A1.1, 4A1.2. This position is
refuted by Defendant’s and his attorney’s admissions. The following colloquy took place
at sentencing:
Defendant’s Attorney: Was it locked doors?
Defendant: Yes, limited security I guess.
Defendant’s Attorney: It was secured.
Neither in proceedings before the District Court nor before us has Walker expressly
asserted that he was not confined for his 1997 conviction. This claim has no merit; the
District Court’s determination was not unreasonable. See also Ordaz, 398 F.3d at 241
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(“[W]e hold that the District Court’s determination regarding the facts of Ordaz’s prior
convictions did not violate the Sixth Amendment, notwithstanding that the sentence was
based, in part, on facts found by a judge rather than a jury.”).
Lastly, Walker argues that the District Court’s denial of his motion in limine,
thereby allowing witnesses (and the government) to refer to him by his nickname
“Ammo,” was sufficiently prejudicial warranting reversal on counts 1, 3, 4. We see no
error or abuse of discretion. Nor does Walker argue that witnesses were making use of a
nickname not known to them at the time of the underlying events (or the events about
which they were testifying), but learned for the first time in anticipation or in preparation
for trial or revealed to them for the first time by the government. Here, where Walker’s
nickname was the name witnesses were actually familiar with, it is tied to the task of
properly identifying the alleged criminal. With regard to identification, witnesses must be
allowed to tell the facts they actually know, and to identify the witness by the name they
knew. Cf. Old Chief v. United States, 519 U.S. 172, 189 (1997) (“A party seemingly
responsible for cloaking something has reason for apprehension, and the prosecution with
its burden of proof may prudently demur at a defense request to interrupt the flow of
evidence telling the story in the usual way.”) (emphasis added).
IV. Conclusion
For the reasons stated above, we will affirm Walker’s conviction on all counts,
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vacate his sentence with regard to counts 1, 5, and 6, and remand for a resentencing
consistent with United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).