United States v. Mischa Walker

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

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 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.

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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.

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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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