United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE
Walker pled guilty to participating in a scheme to defraud
the IRS by filing false tax returns in the names of
individuals incarcerated by the Illinois Department of
Corrections. The Court sentenced him to a term of
imprisonment of forty-two months, to be followed by three
years of supervised release. The Court also ordered him to
pay restitution in the amount of $339, 787.28. Walker has
moved to compel the government to file a motion under Federal
Rule of Criminal Procedure 35(b) to reduce his sentence for
his claimed substantial assistance with an investigation into
operated a tax preparation business called Walker Tax
Service. In 2008 and 2009, he and his friend Pierre Young
participated in a scheme to defraud the IRS. Young provided
Walker with the names and social security numbers of persons
incarcerated by the Illinois Department of Corrections.
Walker filed fraudulent tax returns on behalf of those
individuals, and he and Young collected the proceeds from the
and Young were indicted in August 2014 on three counts of
wire fraud (18 U.S.C. § 1343) and one count each of
converting money belonging to the United States (18 U.S.C.
§ 641). In April 2015, Young pled guilty to the charge
under section 641, and the Court sentenced him to a term of
imprisonment of twenty-four months, two years of supervised
release, and restitution totaling $105, 615.
proceeded to trial in April 2016. The Court declared a
mistrial after the jury was unable to return a unanimous
verdict. Walker ultimately entered a guilty plea on one count
of wire fraud on February 2, 2017. The Court sentenced Walker
on June 2, 2017. A central issue at the hearing was whether
he was subject to a Sentencing Guidelines enhancement for
obstructing justice. The government submitted audio
recordings of phone conversations in which Walker exhorted
Young to tell the truth in his testimony but also
specifically instructed him about what to say. There was also
evidence that Walker deposited almost $2, 000 into
Young's commissary account.
sentencing, Walker argued that he had not obstructed justice
but had merely encouraged Young to be truthful. The Court
rejected that argument, finding that the tenor and context of
the conversations made it evident that Walker was encouraging
Young to lie. Walker also denied paying Young for his
testimony. He alleged that at one point Young demanded $15,
000 or $20, 000 in exchange for favorable testimony and that
he (Walker) immediately informed the government. The Court
also rejected this argument because it found that Walker
cooperated only because the government turned over the audio
recordings in which Walker admitted his guilt and tried to
influence Young's testimony. Based on this evidence, the
Court found that the government established the enhancement
for obstruction of justice by a preponderance of the
alleges that the government promised a lighter sentence in
exchange for cooperation in the investigation of Young's
alleged attempt to obstruct justice. The government
categorically denies that allegation. Walker has filed a
motion to compel the government to file a motion to reduce
his sentence for substantial assistance under Federal Rule of
Criminal Procedure 35(b).
35(b) allows the Court, on the government's motion, to
"reduce a sentence if the defendant, after sentencing,
provided substantial assistance in investigating or
prosecuting another person." Fed. R. Crim. P. 35(b)(1).
government first argues that the Court lacks jurisdiction
over Walker's motion. It cites United States v.
Obeid, 707 F.3d 898 (7th Cir. 2013), in which the
Seventh Circuit held that "the defendant may challenge
the government's refusal" to file a Rule 35(b)
motion "in a motion under 28 U.S.C. § 2255."
Id. at 901. The government argues that because
Walker has already filed a motion under section 2255, the
present motion is barred as a successive motion under section
2255 for which Walker has not obtained authorization.
See 28 U.S.C. § 2255(h).
Seventh Circuit has clarified, however, that a defendant need
not proceed under section 2255 in this situation but may
instead file a motion to compel the government to file a Rule
35(b) motion. See Kirk v. U.S. Dep't of Justice,
842 F.3d 1063, 1066 (7th Cir. 2016). The court stated that
"there cannot be any doubt about the district
court's power to entertain a motion asking the
judge" to compel the government to file a motion under
Rule 35(b). Id. That is precisely what Walker has
filed, and under Kirk, the Court has jurisdiction
over his motion.